Inspector Patton v Western Freight Management Pty Ltd

Inspector Patton v Western Freight Management Pty Ltd - [2009] NSWIRComm 124 - NSWIRComm 1995 case summary — Zoe

[5]

Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Ampol Ltd v Environment Protection Authority (Court of Criminal Appeal, 26 October 1995, unreported) Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201 Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; 49 NSWLR 610 Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; 99 IR 159 Department of Mineral Resources of NSW (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd [2000] NSWIRComm 16; 99 IR 137 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades)(No 2) [2007] NSWIRComm 168 Inspector Patton v Star Track Express Pty Ltd [2007] NSWIRComm 192 Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; 147 IR 117 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 Siganto v The Queen [1998] HCA 74; 194 CLR 656 WorkCover Authority (NSW) (Inspector Lai) v Rexma Pty Ltd [2008] NSWIRComm 78; 172 IR 210 WorkCover Authority (NSW) (Inspector Maddaford) v Coleman [2004] NSWIRComm 317; 138 IR 21 WorkCover Authority (NSW) v ACI Operations Pty Ltd (Industrial Court of New South Wales, Schmidt J, 25 February 1994, unreported) WorkCover Authority of New South Wales (Inspector Belley) v Rail Infrastructure Corporation [2001] NSWIRComm 323; 111 IR 442 WorkCover Authority of New South Wales (Inspector Glass) v Qantas Airways Limited [2002] NSWIRComm 258; 119 IR 8 WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57; 99 IR 284 WorkCover Authority of New South Wales v Hitchcock [2005] NSWIRComm 34; 139 IR 439 WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd [2001] NSWIRComm 62; 105 IR 236 WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119

[9]

1 On 20 November 2008, judgment was given in Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217, in which Western Freight Management Pty Ltd ('the defendant') was found guilty of an offence under section 8(1) of the Occupational Health and Safety Act 2000 ('the Act'). The offence related to an incident involving the defendant's employee, Mr Brian Lloyd, who was fatally injured after he was caught between the rear of a reversing trailer and a loading dock. 2 The incident was described at [33] - [49] of the liability judgment: [33] On the evening of 2 December 2004, Mr Norman and Mr Lloyd both attended the Waverley Drive site to haul trailers to other STE depots. There was a conflict in the evidence as to whether there was any traffic management plan for the depot that determined the way the drivers were to enter the depot or their movements once inside the depot. Mr Parr said that there was a formal traffic management plan which detailed movement of trailers. However, he could not recall if the plan was documented. He said that he understood that it was a requirement for line haul drivers, that is Mr Norman and Mr Lloyd, to enter the depot through the northern gate and exit via the southern gate. [34] However, Mr Norman, Mr Stefanovski and Mr Bradley were not aware of any traffic management plan regarding the movement of vehicles at the depot. Mr Bradley said that he was not in possession of any formal traffic management plan for the depot. Nor was there any formal procedure for the actual movement of line haul trucks entering, lining up to the docks and subsequently departing from the site. Mr Norman gave evidence that he did not know of any traffic management plan for the Waverley Drive depot and that when he had commenced work there in 1995 he was not given any specific direction about which gate to enter from. He was allowed to enter from either gate depending on which was suitable to him and also having regard to the number and location of trucks already in the depot. In terms of exiting the premises, Mr Norman stated that from 2003, when a semi trailer was parked outside the second southern dock, Dock 2, it prevented him from exiting out of the northern gate. This necessitated him exiting out of the southern gate and, in doing so, having to perform the reverse jackknife procedure. Even when a trailer was not on Dock 2, the number and location of other vehicles in the depot at times prevented Mr Norman from exiting out of the northern gate.

[11]

[38] Mr Stefanovski was involved in handling and loading and unloading freight at the depot and helped load the freight into Mr Norman's trailer and Mr Lloyd's trailer on the night of the incident. Mr Stefanovski gave evidence that in terms of procedure as to which of the two trailers were loaded first, he said it was always the trailer located on the most southern dock, Dock 1, although he did not know why that was the case. On the night of the incident, Mr Norman's trailer was located at Dock 1 and was the trailer loaded first. [39] The freight was loaded on to Mr Norman's trailer by way of a conveyor belt which, according to Mr Norman, was 'extremely loud', but not so loud that when he had a conversation with Mr Lloyd that he had to raise his voice. Mr Stefanovski agreed that in the area in front of the dock, whilst the conveyor was noisy, a person could still hold a conversation without raising their voice. [40] When STE employees finished loading Mr Norman's trailer, Mr Norman entered the cab of the prime mover and drove the trailer forward, away from the dock. Mr Norman then exited the cab and he and Mr Lloyd entered the depot office to get their Subcontractor Payment Voucher's (SPV's) signed off and to collect security seals. The vouchers were required to be completed at the depot to ensure the payment of WFM drivers. Both men then returned to the rear of Mr Norman's trailer. Mr Norman stated that he closed one of his two rear doors and noticed that Mr Lloyd was closing the other door. Mr Norman explained in his evidence he would have done the same for Mr Lloyd and that it was a common practice between the two men to help each other out. However, Mr Schmidt stated that it was WFM procedure for the driver to close their own trailer doors and that there was no need for more than one WFM employee to be involved in the process of closing the doors. He was not aware, however, of the work practice between the two line haul drivers at the Waverley Drive depot and had not attended the depot prior to the incident. Mr Peters also gave evidence that only one WFM driver was required to close the doors or apply security seals, but said there was no mention of this in the Company's Drivers' Manual, as there was no requirement for two drivers to close the doors. [41] After Mr Norman and Mr Lloyd closed Mr Norman's trailer doors, they applied the security seals. The security seals were plastic seals with a security number or barcode on them and were required to be applied after each trailer was loaded. Once applied, the security seals could only be removed by physically breaking the seal. The driver recorded the seal details and upon arrival at the destination, the seals were physically checked to ensure that they were still intact and that the load had not been tampered with. Mr Schmidt explained that 'what was supposed to happen' was for a supervisor or security guard at the depot to apply the security seals to the truck and sign off on the relevant paperwork and despatch the driver. However, on the night of the incident it was Mr Norman, with the assistance of Mr Lloyd, who applied the security seals to the rear doors of Mr Norman's trailer. Mr Norman's evidence was that he understood that the responsibility to seal the doors lay with STE employees, but that he had always applied the seals himself. [42] After the seals were applied, Mr Norman and Mr Lloyd spoke briefly and Mr Norman said to Mr Lloyd:

[30]

Reversing must be kept to an absolute minimum! If you must reverse, follow these practices: 1) Think about it again first - do you really need to? 2) Get out and check behind the vehicle; 3) Check clearances at sides, top and bottom; 4) Obey all traffic and pedestrian controls and directions; HAZARD LIGHTS MUST BE ON WHEN REVERSING Remember that YOU WILL BE ALWAYS HELD TOTALLY RESPONSIBLE for any damage caused when reversing even when somebody may be directing you. 11 Mr Peters explained that since the incident, the defendant's reversing procedure, as outlined in its Driver's Manual, had been emphasised to drivers, including the need for the driver to get out and check behind the truck and not to rely merely on spotters to guide a driver. 12 In addition to the training provided by the defendant, Mr Peters deposed that many of the defendant's customers provided additional, often site specific, training and he annexed a list of those customers and the training they provided. Also annexed to Mr Peters' affidavit was a spreadsheet which revealed that from July 2001 to February 2009 the defendant had spent $133,531 on training expenses. 13 Mr Peters explained that the defendant had a 'state of the art safety and communications system'. The system consisted of mobile telephones, radio transceivers and satellite telephones where long haul trucks were out of range of cellular networks. In addition, each truck was fitted with a device which enabled the truck's location, speed and direction to be tracked, in real time, from the defendant's Orange or Blacktown depots. Mr Peters also deposed that the defendant ensured that the fleet of trucks was mechanically safe and sound at all times. 14 A central issue in the liability proceedings concerned the location of a garden bed at the Waverley Drive site of Star Track Express ('STE'), which was what necessitated a driver exiting the depot by the southern gate to perform the reverse jack-knife manoeuvre. It was in Mr Norman's performance of this manoeuvre, that Mr Lloyd was fatally injured. Mr Peters explained that prior to the incident he had attended the Waverley Drive site and had formed the following opinion regarding the garden bed:

[49]

· Section 22, which provides that a guilty plea is to be taken into account on sentence, including when the plea was effectively indicated or entered. [31] The prosecutor referred to the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering Constructions Pty Limited (No 2) (2001) 109 IR 347 as representing the proper approach to sentencing for offences under the 1983 Act. After referring to WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Another (No 2) (2000) 99 IR 163 at [21]-[27], WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 at [42] and Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at [82], his Honour stated at [19]: In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce. [32] I respectfully agree with his Honour and consider the same approach is to be adopted under the 2000 Act. Further, as the prosecutor also submitted, neither the principles discussed in Markarian nor the provisions of the Crimes (Sentencing Procedure) Act require a departure from the general jurisprudence of this Court with respect to sentencing offenders for breaches of the Occupational Health and Safety Act . As it was stated in R v Way (2004) 60 NSWLR 168 at [56]:

[64]

28 In respect of the failure to conduct a risk assessment the Court found at [101]: I earlier found that the defendant was aware of the general risk posed by a reversing prime mover with trailer attached; it admitted as much. What the defendant did not do was conduct an assessment of the risk in order to determine how to address the risk and, therefore, eliminate it or at least minimise the prospect of employees being exposed to the risk as it existed at the Waverley Drive depot. The defendant knew of the location of the garden bed, knew of the reversing manoeuvre that was consequently required to be performed in a confined space and yet did not turn its mind to how those elements could affect its employees' safety. 29 At [104] the Court found beyond reasonable doubt that had a proper risk assessment been conducted, the defendant would not have failed to take the necessary steps to avoid the risk revealed by the assessment. The evidence established that if a risk to safety was brought to the defendant's attention, it would have taken steps to guard against the risk. 30 In respect of the third particular made out, the failure to ensure sufficient room, the Court said at [118]-[120]: [118] In relation to the garden bed, the evidence showed that the Managing Director of WFM knew of the location of the garden bed, and the manoeuvre that was required by a driver to avoid the garden bed when exiting the southern gate. Mr Peters had noticed and raised the problem with STE executives prior to the opening of the depot that the garden bed was 'in the way and should be moved'. It is apparent, however, that Mr Peters and the defendant did not consider the location of the garden to be a safety problem. I have already addressed the failure to conduct a risk assessment in the context of traffic and pedestrian management and reversing trailers. But I again state that a proper risk assessment of the Waverley Drive depot would have revealed that due to the location of the garden bed it contributed to the creation of a risk to drivers.

[73]

38 In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476, the Court said: It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant: see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Ltd , the Full Bench indicated (at 9), properly in our view, that "a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences". 39 In this case the risk to safety arising from a reversing trailer was not only obvious and foreseeable, it was in fact foreseen and known by the defendant prior to the incident. The prosecutor contended that the fact that the risk was obvious and known was an aggravating factor in the objective seriousness. 40 In WorkCover Authority (NSW) (Inspector Maddaford) v Coleman [2004] NSWIRComm 317; 138 IR 21 the Court dealt with a risk that was not only foreseeable, but foreseen by the defendant. The Full Bench said at [89] - [90]: [89] In the present case, the risk that an employee may be subjected to violence or bullying in the flimsy guise of a workplace "initiation" was not only foreseeable, but was foreseen (at least by Graham Coleman). In WorkCover Authority (NSW) v McDonald's Australia Ltd (2003) 125 IR 270, the Court addressed the issue of risks that are not only foreseeable, but are foreseen: "It is well settled that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature (see Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610, 99 IR 29). The fact that the risk to safety as particularised in a given prosecution has actually been foreseen by a defendant will, in my view, have the effect of further aggravating the nature and seriousness of an offence under the Act. This observation must, of course, be tempered by a recognition of all the circumstances of the particular case."

[74]

[90] We note also the decision in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, in which the Court of Criminal Appeal was required to determine whether a fine imposed under the Environmental Offences and Penalties Act 1989 (NSW) was too severe. Badgery-Parker J, with whom Finlay J agreed, held that pollution occurring as the unforeseen consequence of the defendant's conduct, even though such a consequence may be foreseeable, involves a lesser level of criminality. In our view, the corollary must also be true, that is, that conduct which has a foreseen consequence involves a higher level of criminality or culpability. 41 In WorkCover Authority of New South Wales (Inspector Glass) v Qantas Airways Limited [2002] NSWIRComm 258; 119 IR 8, Staunton J said at [24] - [26]: [24] The prosecution relied on this identified foreseeability of risk, submitting that the defendant's culpability increased because of that prior knowledge. In doing so, he relied on the decision of a Full Bench of this Commission in Capral Aluminium Limited v WorkCover Authority (NSW) (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 at 62 where the Court stated: "The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature." [25] The prosecution further relied on additional decisions of this Commission reinforcing that view as expressed in Capral, citing WorkCover Authority (NSW) v Warman International Ltd (2001) 105 IR 236 at 253 and Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. The prosecution also referred to a passage in WorkCover Authority of NSW v Goodman Fielder Mills Ltd (unreported, Marks J, 13 November 1994) and in particular the following passage from his Honour's judgment: "Once senior management became aware of the problem or once circumstances existed which should have resulted in management appreciating that there was a problem, the degree of culpability of the defendant increases accordingly." [26] In my view the objective seriousness of this matter is exacerbated by the high and precise degree of foreseeability of harm identified by the defendant in the operation of the Nobby as well as the failure by the defendant to maintain the safety controls it had already identified and insisted upon. 42 In Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [369] the Court said: [369] In determining whether a defendant should have reasonably foreseen a risk of injury, it is not necessary to show that a reasonable person placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect involved in the happening of the defendant's accident or, in other words, the precise risk of injury or how it occurred. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen or it was reasonable to foresee in a general way the kind of thing that occurred. 43 The defendant conceded that it appreciated that there was a real risk of an employee being struck by a reversing trailer should an incident occur such as the one that is the subject of these proceedings. It was the defendant's submission, however, that it did not perceive there to be a real risk that an incident would occur. In other words, that although the risk was very real and very serious, the potential for such a risk to occur was not high. Furthermore, that there were a number of other risks within the industry, which were potentially more likely to occur than the risk of being struck by a reversing trailer, and the risk should be considered in that light. 44 I am unable to accept these submissions. Whilst the defendant may have believed that a manifestation of the risk, that is, that someone could actually be struck by a reversing trailer, was not high, it is clear that the potential for the risk to occur was high, irrespective of whether any injury was sustained. This is especially so given the number of reverse manoeuvres required to be performed, the absence of any pedestrian or traffic management policy or procedure and the system of work employed at the depot. I repeat what was said in the liability judgment at [70]: Mr Lloyd was, therefore, required to be at the depot, in the vicinity of the loading docks; he was waiting for his own trailer to be completed and was last seen at the rear of Mr Norman's trailer. Mr Norman's rear vision was restricted and, as he reversed the trailer towards the loading dock, Mr Lloyd was at risk of being struck by the rear of Mr Norman's trailer. On 2 December 2004, I find that there was a risk to the health and safety of Mr Lloyd whilst he was at work. 45 This risk had the potential to arise each day that Mr Lloyd and Mr Norman attended the depot. The fact that no such incident had occurred prior to 4 December 2004, does not mean that the risk did not arise. I am satisfied that the risk was high, and that the risk was foreseen and known by the defendant.

[78]

Deterrence 49 General and specific deterrence are matters to be taken into account in sentencing under the Act: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; 49 NSWLR 610 at [71] - [80]; Cahill v DOCS (No 4) at [43]. The prosecutor contended that the defendant remained a significant employer operating in the heavy transport industry and that it has been tardy in responding to the failings in its systems associated with the subject incident and identified by the Court. In those circumstances, it was submitted, any penalty imposed should reflect significant elements of both general and specific deterrence. 50 In respect of general deterrence, the transport industry is an industry where employees are often outside the direct control of the employer, for example, on roads and at client depots. Ensuring that employees are not exposed to risks requires diligence of a high order. 51 The reliance on an 'unwritten law' that a truck driver must not walk behind a reversing trailer is somewhat concerning. It carries within it the notion that the 'law' is so well known amongst drivers that no steps need to be taken by the employer to ensure the 'law' is adhered to. In this case, the defendant knew of the unwritten law, but did not turn its mind to the risk to safety that it created and, in turn, did not address the risk. I consider it appropriate to bring the risk and the need to take adequate pro-active steps to guard against the risk, to the attention of other employers operating in the transport industry. I therefore propose to adopt a significant element of general deterrence in the penalty imposed. 52 In respect of specific deterrence, the defendant conceded that it continued to place responsibility on its drivers and clients to ensure its employees' safety. Of itself that cannot be criticised. However, in so far as the defendant was concerned, who had the primary responsibility for ensuring safety, the evidence revealed that the steps taken by the defendant following the incident were inadequate in guarding against the risk of a reversing trailer. In particular, the defendant has not implemented an adequate risk assessment in order to assess whether its drivers' safety is actually being ensured at client depots. 53 I accept that the defendant has demonstrated a positive attitude to occupational health and safety, evidenced by its driver training, tracking system and extensive policies in the area of fatigue management and drugs and alcohol. However, I am not satisfied that there is a low or non-existent chance of the defendant re-offending, particularly in light of its failure to adopt appropriate remedial measures to guard against the risk of a reversing trailer. I, therefore, propose to adopt a significant element of specific deterrence in the penalty imposed.

[80]

57 However, the defendant has not taken all available and reasonably practicable steps to guard against the risk. The defendant has not implemented the 'unwritten law', that is, that no drivers are to stand behind a reversing trailer, by including it in the company manual. Further, there is no evidence that the defendant has conducted an adequate risk assessment at the new depot, or adequately assessed the safety policies and procedures in place at that depot, and the defendant has not implemented the use of horns or spotters or similar safety measures. 58 The prosecutor submitted that the updated reversing policy in the manual still did not contain any reference to what is known as the 'unwritten law'. I accept that the updated reversing provision in the manual (extracted earlier in this judgment), makes no reference to drivers being forbidden or prohibited from standing behind a reversing trailer. Whilst a 'paper system' of prohibiting drivers from standing to the rear of a reversing trailer would not be sufficient, of itself, to prevent the relevant risk from arising, it is an important and simple step, that combined with other measures, could reduce, the risk arising. It would ensure that every driver was, in fact, aware of the risk of a reversing trailer and knew of the 'unwritten law' that they should not stand behind the trailer. 59 The procedure for reversing was also updated in the manual to include a requirement that reversing be kept to an 'absolute minimum', but the company procedure for reversing makes no reference to the use of spotters or horns. The defendant submitted that it was not practicable to implement either measures within the company manual. The defendant contended that the noise regulations, in particular, the Protection of the Environment Operations (Noise Control) Regulation 2008 were an impediment to utilising horns as a signalling method for reversing. The defendant also submitted that the use of a spotter, as a company policy, would be impractical, as drivers were required to attend sites with and without the availability of spotters, and that the spotters would not be under the control of the defendant, but more likely would be employed by the defendant's customer. Moreover, Mr G Hatcher of senior counsel for the defendant submitted the spotters could be distracted in their task of ensuring the area behind a trailer was clear prior to a driver reversing. 60 I acknowledge Mr Peter's concern that noise regulations may impact on the use of horns as a signalling system, but there is no evidence before the Court that the noise regulations in fact do prevent the use of horns as a signalling method. There is no evidence of any analysis or research conducted by the defendant, as to whether horn signals could be used, whether there are other means for signalling, for example, hand signalling, or whether there are alternative measures to ensure that a driver cannot reverse until the area behind their trailer is completely clear.

[81]

61 As for the use of spotters, I appreciate that the defendant must have a policy and procedure in place that is capable of being adopted by all drivers at all sites that they attend. However, there was evidence in the liability proceedings that there were a number of site specific procedures for different client depots, annexed to the company manual. Given the frequency that the defendant's drivers attended the Waverley Drive depot, and as I understand it now the Industrial Road depot, an option could be to have a site specific procedure for the Industrial Road depot attached to the company manual. It is there (and perhaps in other locations) that the company could require that spotters be utilised in order to ensure that the area behind a trailer is clear, prior to the driver reversing. The defendant could ensure that STE had spotters available at the site and that those spotters performed the task as required. If spotters were not available at the depot the driver could be instructed not to undertake any reversing manoeuvre until a spotter was made available. As for the submission that the spotters might become distracted, if such an event were to occur, then the driver would be instructed not to reverse until they had the undivided attention and permission of the spotter. 62 I am unable, therefore, to accept that it is not practicable for the defendant to adopt either the use of horns (or some other method of signalling) or spotters or both. I reiterate the findings in the liability judgment that these type of measures are available to be implemented and capable of reducing or eliminating the risk that a reversing trailer creates. I wish to say, however, that I am not imposing these measures on the defendant. It is a matter for the defendant to determine the best way to ensure safety at the various depots visited by its drivers. What I am saying is that in my view there were and are reasonably simple measures available to be implemented that will either eliminate or reduce the risk to safety in connection with reversing trailers and it seems to me horn signals and spotters are two of such measures. 63 It is a positive step that the defendant provided its drivers with STE's policies and procedures for the Wollongong Branch, as prior to the incident the defendant's drivers were not aware of any traffic and pedestrian management plan for the Waverley Drive depot, indeed the Court found there was none. The documents, prepared by STE, are indeed detailed policies concerned with traffic management flow plans, risk assessments and controls and procedures for loading and unloading trailers at the site. However, these policies were prepared by STE. The evidence before the Court, is that these were forwarded by the defendant, to its employees, without any apparent adequate assessment of the policies and procedures or a risk assessment being undertaken of the Industrial Road depot. 64 I accept that Mr Peters read the policies, and assessed them to be satisfactory. However, I consider this method to be inadequate. First, there was no evidence before the Court of who, in fact, received the policies and procedures, although I note that Mr Peters said the distribution to drivers took place. A better procedure would be the maintenance of a register of every driver who attends that site with a requirement that they sign the register to certify that they have read and understood the policies for the site. This would ensure that no driver was overlooked and that a record could be kept for ensuring that those drivers receive any updated policies and procedures for the site. 65 Secondly, and perhaps more significantly, Mr Peters stated that he assessed STE's policies and procedures and deemed them satisfactory. I accept that Mr Peters has been involved in the transport industry since he was 17 years old and has accumulated a great deal of knowledge, both from a driver and management perspective, regarding issues and risks faced by those working in the transport industry, 66 However, I am not satisfied that this single assessment is adequate. First, there was no evidence to suggest that Mr Peters, although having a great deal of industry experience, has the necessary qualifications to appropriately assess the policies and procedures put in place by STE, for the purpose of assessing risk. The liability judgment established that Mr Peters knew, prior to the incident, that the location of the garden bed necessitated a driver exiting the southern depot to perform the reverse manoeuvre. He conceded that, because of the risk of a reversing trailer that, where possible, the number of reverse manoeuvres performed by a driver should be restricted. Yet, Mr Peters did not consider the garden bed to be a risk to safety, although it is clear that if he had thought it was a matter affecting safety he would have done something about it. Unfortunately, his assessment was flawed. In that light, and given the findings in the liability judgment concerning risk assessments, the defendant should have taken steps to ensure an adequate system was in place for assessing the policies and procedures at client depots. 67 There is no evidence that the defendant conducted a risk assessment at the new depot, or an analysis as to whether STE's policies ensured the defendant's drivers' safety at the Industrial Road depot. Whilst the evidence revealed that STE had conducted risk assessments, the obligation is on the defendant to satisfy itself - especially when it directs its employees to follow those policies and procedures - that those policies and procedures do ensure the defendant's employees' health and safety. 68 The conducting of a formal and adequate risk assessment at the site, and an adequate analysis of STE's policies and procedures in the context of the site, is a relatively simple step, and one that would ensure that all risks are appropriately identified. The evidence from the liability proceedings revealed that had the defendant been aware of the risk that the garden bed created to its drivers' health and safety, the defendant would have acted to remedy the risk. 69 I find that the steps implemented by the defendant following the incident are of limited effectiveness in guarding against the serious risk of a reversing trailer and that the defendant should only receive a minimal benefit in mitigation from the steps it has taken. I also consider it to be a relevant factor regarding the defendant's remorse and contrition over the incident.

[83]

72 A factor in mitigation can be the remorse or contrition of the defendant over the incident: Department of Mineral Resources of NSW (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd [2000] NSWIRComm 16; 99 IR 137 at [64]. A corporation is able to demonstrate contrition: Ampol Ltd v Environment Protection Authority (Court of Criminal Appeal, 26 October 1995, unreported); WorkCover Authority of New South Wales (Inspector Belley) v Rail Infrastructure Corporation [2001] NSWIRComm 323; 111 IR 442 at [85]. The prosecutor contended, however, that there was no evidence to suggest that the defendant was entitled to any benefit of a discount for remorse and contrition. 73 The prosecutor submitted that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provided that remorse may only be taken into account as a mitigating factor, if the following conditions are met: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), 74 Therefore, it was contended, in the absence of a specific acceptance of responsibility and an acknowledgement of the injury, loss and or damage caused, the defendant was not entitled to the benefit of a discount. The prosecutor further submitted that the defendant's approach, as revealed through Mr Peters' testimony and affidavit, was said to offend the Full Bench's observations in Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; 147 IR 117 at [118]. Relevantly, in that case the Court said: But we should make it clear that where a defendant has been found guilty of an offence under the Act yet declines to accept responsibility for the act or omission constituting the offence, especially where there has been serious injury or death, the Court will discount the value of any expression of contrition because we would regard it as a serious deficiency in the absence of any reasonable explanation.

[88]

The incident involving Brian has caused Western Freight Management to review its documentation and inspection processes, to help avoid an incident of this nature occurring again. Western Freight Management is and has always been committed to providing a reliable service to its clients which is safe to its drivers and the public. It has taken steps to ensure that the risk of recurrence of an incident of this nature, which was in my view in any event unusual and unexpected , is as far as is possible eliminated. (emphasis added) 81 I also note the following submission of Mr Hatcher, for the defendant: When our client, prior to this incident, looked at the risks, our client assessed the risks as being best overcome by insisting on the driver taking full responsibility and by walking around the truck before he reversed, to ensure that no-one is there. It cannot be said our client didn't acknowledge the risk. Your Honour found, and I thought our client candidly conceded, that it saw there was a risk. Where it failed was in its assessment of what should be done. It failed because of our client's understanding of the potential for humans to avoid clear and obvious danger . The driver was the one most alive to the risk of a reversing trailer and the case concerned the risk to a driver, not to pedestrians generally. (emphasis added) 82 This submission is inconsistent with the findings made in the liability judgment at [138] - [140]: [138] The defendant submitted, however, that as Mr Lloyd, a driver with extensive experience and training in the industry, knew that he was not to stand behind a reversing trailer, and yet he did so, no other steps, such as a policy excluding Mr Lloyd from the area, would have prevented Mr Lloyd from standing behind the reversing trailer and placing himself at risk. I do not agree with this submission. As I have already observed, it is clear from the authorities that the employer, in satisfying its duty to ensure health and safety of its employees, must take into account not only the careful and observant employee but also the careless, inattentive or inadvertent employee: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Aust) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81 at [45]. In other words, the obligation was on the defendant to devise a system of work in connection with the loading of the trailers at the depot that took into account the careless, inattentive or inadvertent employee. [139] Whilst it was maintained by Mr Schmidt and Mr Peters that Mr Lloyd knew not to stand behind a reversing trailer, it was reasonably foreseeable that a driver may inadvertently place, or find, himself in the dangerous position of being at the rear of a trailer as it reversed. There was no evidence as to why Mr Lloyd was behind the trailer, but the relevant issue was that he was there. I am satisfied that there may be circumstances where an employee, despite knowing of the 'unwritten rule', may find himself behind a reversing trailer. This could include, for example, someone who receives a phone call or is distracted for some reason, or who falls, becomes injured and is unable to move from the area. [140] The defendant's contention that nothing else could have been done approaches the issue too narrowly. The risk was that a reversing trailer could strike an employee and it is reasonably foreseeable that in the absence of a proper traffic or pedestrian management plan there may have been circumstances where an employee found themselves in the path of a reversing trailer unseen by the driver because of the driver's restricted vision. Focusing on why or whether employees willingly placed themselves in the situation is not relevant to the risk as charged. The risk was that an employee could have been in the area, and could have been struck by a reversing trailer.

[92]

[41] In conclusion, although I accept that there are subjective factors to take into account in mitigation, their effect on the penalties to be imposed will be minimal, given the great objective seriousness of the offences; the compelling need for general deterrence; the fact that subjective factors must be considered secondary to the objective seriousness of the offence (see the Full Bench decision in Maddaford v Coleman at [94]); and their limited nature in this case. 84 I am of the opinion that the evidence in this case demonstrates a reluctance by the defendant to accept culpability over the incident. Whilst I acknowledge Mr Hatcher's submission that the defendant's contention was not that it was not responsible for the incident, just that it was not legally responsible under the Act (although he accepted that the Court had found they were wrong in that view), I am unable to see sufficient indication of the defendant's contrition and remorse or its acceptance of culpability over the incident, that would justify reducing the penalty to any degree other than marginal. I found the 'tenor' of Mr Peters' affidavit, as demonstrated by the paragraphs extracted above, 'an impediment to full recognition of culpability': Hitchcock. Further, I earlier found the steps taken by the defendant after the incident were inadequate, even though there were simple and available measures that the defendant could have adopted. The defendant's failure to take adequate pro-active steps following the incident, is, demonstrative of its reluctance to accept full culpability. 85 As for the prosecutor's submission that the defendant's approach offends against what was said by the Court in Morrison v Powercoal (No 3), I note that I do not have a formal statement of contrition and remorse, other than the statement by Mr Hatcher from the bar table (and extracted above). I accept that Mr Peters stated that following the incident he was left in a state of deep distress, but this is not a sufficient indication of contrition or remorse such that it should have a marked effect on penalty. In my opinion, the issue in this case is not so much that the defendant has said it is contrite and remorseful, and yet has acted in a manner inconsistent with such a statement, but rather that it has neither made such a statement, nor acted in a manner to demonstrate its contrition and remorse other than the assistance it provided to the deceased's family and its cooperation with the investigating Authority.

[95]

89 Mr Hatcher submitted that the principle of parity (or perhaps more correctly, consistency) was relevant to the penalty imposed on the defendant. Star Track Express, who operated the Waverley Drive depot at the time of the incident, was also prosecuted over the incident and fined $150,000: see Inspector Patton v Star Track Express Pty Ltd [2007] NSWIRComm 192. 90 The principle of parity was discussed in Capral Aluminium at [62]-[65]: [62] It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 435-436: "Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v The Queen (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione (1997) 189 CLR 295 at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which `shows consistency and not disparity in punishment in the same way as discussed by Mason J in The Queen v Lowe (1984) 154 CLR 606]' where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 ..." [63] When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said (at 371): "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty." [64] In Channon v The Queen (1978) 33 FLR 433, Deane J observed: "In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances." [65] As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10.

[97]

92 Significantly, in this matter the defendant did not enter a guilty plea, and accordingly cannot be entitled to any reduction in penalty arising from the utilitarian value of such a plea. Given my findings regarding the defendant's remorse and contrition, there is a significant difference in that regard to the finding of Staff J. Further, the steps taken by the defendant after the incident, when compared to the pro-active steps taken by Star Track Express that addressed the risk, reveals another substantial difference that counts against the penalty to be applied to the defendant being at or near the same level as that applied to Star Track Express. I do accept, however, that the defendant has demonstrated, through its extensive policies and procedures, including fatigue management and drug and alcohol policies, that it has a commitment to occupational health and safety and that will be taken into account in the defendant's favour. 93 In Inspector Patton v Star Track Express the defendant was charged with an offence under s 8(2) of the Occupational Health and Safety Act 2000. The particulars of the charge were that the defendant: 1. Failed to ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the premises and, in particular, for line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 2. Failed to conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, with respect to the line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 94 These particulars are similar to the first two particulars of the present charge. However, the third particular found proven in the present proceedings was that the defendant: 3. Failed to ensure that sufficient room was available in the vicinity of the most southerly of the line haul loading docks so that line haul prime movers and trailers could safely access and exit the most southerly of the line haul loading docks, including departing the premises through the southern exit gate. 95 In my opinion, the multiple failures to ensure safety of its employees means that the offence committed by the defendant was more objectively serious than the offence in Inspector Patton v Star Track Express. Moreover, in that case Staff J determined that although the penalty should include an element for specific deterrence it was 'not a case where there is any need for the penalty to be framed so as to require attention of the defendant to be drawn to the need to address safety issues.' In the present case, I have indicated that I was not satisfied that there is a low or non-existent chance of the defendant re-offending, particularly in light of its failure to adopt appropriate remedial measures and I intend to include a significant element in the penalty for specific deterrence. 96 In Postiglione v The Queen [1997] HCA 26; 189 CLR 295 Dawson and Gaudron JJ said at 301-302 (omitting citation of authority): The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v R , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

At a glance

Court

Decision date

Before

Source

Judgment (102 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (52)

Cited By (9)