Inspector Paul Mansell v Anytime Industrial Services Pty Limited

PROSECUTOR: Ms P F Lowson of counsel Solicitors Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr J W Fernan Solicitors: McCabe Lawyers

JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : 12 October 2001

IRC3913 of 2000 INSPECTOR PAUL MANSELL v ANYTIME INDUSTRIAL SERVICES PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983

JUDGMENT (as to penalty) [2001] NSWIRComm237 1 This is a prosecution brought by the WorkCover Authority of New South Wales through Inspector Paul Mansell under the provisions of s15(1) of the Occupational Health and Safety Act 1983. 2 The defendant company is charged with failing to ensure the health, safety and welfare at work of all of its employees and, in particular, John Todd, in that it: 1. Failed to provide or maintain a system for the removal of cooling and heating coils from within a resin storage tank that was safe and without risks to the health of its employees. 2. Failed to provide or maintain plant being used in the work of removing cooling and heating coils from a resin storage tank that was safe and without risks to the health of its employees. 3. Failed to make arrangements for ensuring the safety and absence of risks to health in connection with the use of plant, to wit a mechanical hoist which was being used to assist its employees in carrying out the work of removal of cooling and heating coils from within a resin storage tank. 4. Failed to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the work of removing cooling and heating coils from within a resin storage tank with the assistance of a mechanical hoist. 5. Failed to provide or maintain a means of egress from a confined space, to wit a resin storage tank, as was safe and without risks to health. 6. Failed to ensure that the work of removing cooling and heating coils from a resin storage tank was not carried out by using a mechanical hoist to support its employee, John Todd, within the tank contrary to Regulation 127(108) of the Construction Safety Regulations, 1950. 7. Failed to instruct its said employees not to carry out the work involving the removal of cooling and heating coils from a resin storage tank by using a mechanical hoist, contrary to Regulation 127(108) of the Construction Safety Regulations, 1950, to support its said employee, John Todd, in performing such work and in so doing failed to ensure the health, safety and welfare of its said employees.

3 Relevantly from the agreed facts are the following admissions 3. On 11 and 12 August 1998, as part of its contract with Orica, the defendant provided the services of a fitter and a trades assistant in order to carry out specific maintenance work on a resin storage tank known as the L tank ("the tank"). 4. The defendant was at all material times a contractor involved in general industrial maintenance work. The main part of the defendant's operation involves the supply of labour to the site at which the incident occurred on 12 August 1998 to carry out maintenance at the direction of the Principal. 5. Prior to 12 August 1998 and subsequently the defendant has had a contract with Orica Australia Pty Limited ("the Principal") to carry out general maintenance work for it at it's factory premises at 15 Gow Street, Padstow ("the premises"). 6. Prior to 11 August 1998 it was agreed between the defendant and the Principal that the Principal would provide specific training to the defendant's employees for the purpose of carrying out the work required in the tank. 7. Each of John Todd and Greg Hogg commenced employment on a casual basis with the Defendant on 11 August 1998. 8. On 11 August 1998 the workers attended at the premises and were afforded training and instruction by the Principal's personnel for the purpose of carrying out the work in the tank. The Defendant did not supply any training to either John Todd or Greg Hogg prior to the incident on 12 August 1998. 9. The work to be carried out by the defendant's employees for the Principal was the removal of cooling and heating coils from inside the tank. 10. The tank was 3.6 metres high and 2.7 metres in diameter. There was a manhole access to the inside of the tank which was situated at the top of it approximately 220 millimetres from the outside edge. 11. The building in which the tank was situated had a steel roof structure that was 1.5 metres approximately above the manhole at the top of the tank. 12. The work to be carried out by the defendant's employees was the cutting away and removal of the heating and cooling coils from within the tank. 13. The Principal determined the work method to be adopted and determined and supplied the equipment to be utilised for the carrying out of the work. 14. Details of the work method and the equipment to be utilised as determined by the Principal included the following: (i) The injured worker was to be suspended inside the tank on a harness connected to an air powered mechanical hoist ("the hoist") attached to the steel roof structure of the building above the tank. (ii) A block and tackle was also to be attached to the steel roof structure to provide a lifting device for the purpose of supporting and removing the coils from inside the tank once they had been cut away by the injured worker. (iii) The injured worker was also to be provided with the necessary respiratory equipment to enable him to work within the tank. (iv) The workers were required to work as a team with one worker inside and one outside the tank and always to remain in sight of one another. (v) The standby worker be provided with a two-way radio to enable contact at all times with other site personnel. 15. The hoist provided by the Principal and used by the workers on 12 August 1998 was not a hoist which complied with the specifications set out in Regulation 127(66) of the Construction Safety Regulations, 1950. 16. The use of the hoist for the purpose of suspending the injured worker within the tank contravened Regulation 127(108) of the Construction Safety Regulations, 1950. 17. The Principal afforded training to the workers on 11 August 1998 instructing them how to carry out the work utilising the work methods and equipment referred to above. 18. At about 7.10am on 12 August 1998 the injured worker was suspended within the tank in carrying out the work of removing the coils. The injured worker directed the standby worker to lower him further inside the tank and then asked to be raised up again and in compliance with that direction the hoist was operated by the standby worker but the upward motion of the hoist continued and could not be stopped. The hoist continued to pull the injured worker whilst he was suspended in a horizontal position as the hook attachment for the harness being worn by him did not enable him to be pulled up vertically. 19. The hoist continued to pull out of control and forced the injured worker against the domed underside of the top of the tank. 20. The action of the hoist continued out of control for some time after the injured worker's body came into contact with the tank. 21. As a result of being forced into contact with the top of the tank the injured worker lost consciousness and sustained a number of fractures to spinal vertebrae. 22. The hoist had gone out of control because the control rod or paddle control to the hoist had been jammed by the chain from the block and tackle preventing the paddle control from stopping the hoist's upward movement. 23. The injuries sustained by the injured worker prevented him resuming his employment for in excess of seven days. The injured worker continued to be absent from work for a period of at least four months from the date of injury and suffered from physical and psychological injuries for which he was still receiving treatment at four months from the date of injury. 24. Subsequent investigations of the accident by the Principal concluded the causes to be the following: • Poor hoist design noting a powered hoist should not have been used to support the injured worker. • The shackle point of the hoist to the support beam was too congested as the block and tackle in the vicinity was connected too close to the hoist mechanism such that the crossover of chain ultimately fouled the hoist mechanism. • Access and egress from the confined space was not unobstructed. • The safety harness connection to the injured worker was via a single shackle point between the shoulderblades and this connection should have been made via a spreader bar to shackle points at each of the injured worker's shoulders.

4 The defendant entered a plea of guilty to the charge. 5 Ms P.F. Lowson of Counsel represented the prosecutor and Mr J.W. Fernan of Counsel represented the defendant. It is agreed the maximum penalty at the time of the breach was $550,000. 6 In consideration of penalty the court must first assess the nature and quality of the offence, that is, the objective seriousness of the offence. As was held in Lawrence Diecasting Pty Limited v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In the case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence. The Full Bench said (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpates the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench cited (at 474) with approval the passage of the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce.

The Full Bench further commented (at 476): . . . the proper approach is first to consider the gravity of the offence viewed objectively. 7 In consideration of the objective seriousness of this offence, the WorkCover Authority called evidence from Insp Mansell and tendered a significant number of witness statements.

8 An analysis of the circumstances of this breach reveals, in part, a dilemma faced by small contractors who carry serious obligations as an employer under the Occupational Health and Safety Act, 1983. Once, a large corporation was the employer of all workers on its industrial sites and accordingly it carried all of the responsibility for the design and implementation of safe systems of work. In a world of evolving employment practices the out-sourcing of such tasks as maintenance has become a practice in the industrial world. The responsibilities and burden of the employer in this modern trend is now transposed to the small business contractor on site who employs the maintenance workers. The contractor, in reality, on such sites, carries little influence and inherits and adopts the selection and design of work methods of the larger corporation. 9 For many years ICI-Orica-Dulux, the Principal, had its own maintenance staff. It determined about six years ago to subcontract out its maintenance work. Mr Connell and his company were the beneficiaries of this decision. Mr Connell had worked with the Principal on site in the maintenance area. He had always been a contractor to the Principal. Evidence revealed Mr Connell, who with his wife, is the owner of the defendant company, had assumed the responsibility for providing most of the workers to perform the maintenance work at the Principal's industrial site. As the employer, Mr Connell provided up to six workers at a time for the maintenance area of the Principal. However, the workers had always worked within a system of work devised by the Principal, not by Mr Connell, the employer. As the facts revealed, the Principal, by practice, bore the responsibility for performing a risk assessment of each task. The Principal devised the work method to be adopted, supplied the equipment to be used in the performance of the task and organised the training of the workers required to perform it.

10 While not denying its obligations under the Act and accepting such obligations through the plea of guilty, the level of culpability of this defendant must be given consideration. The court, in its assessment as to culpability of such a defendant company, is guided by the view expressed in WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor 95 IR 383 (at 437): The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services both in relation to the particular restaurant involved in this case and in the system of safety employed in the entire McDonald's System.

Walton J, Vice-President referred to a possible unfairness (at 437): . . . that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of the contribution to an accident is not undertaken. 11 The facts reveal Mr Connell was required by an engineer, employed by the Principal, to provide two workers, a tradesman who could work in a confined space (which carries a particular qualification) and a tradesman's assistant. Mr Connell, familiar with the work to be performed, advertised and selected two persons he believed appropriately qualified. He took the tradesman he hired, Mr Todd, to the site. With a quick glance, Mr Todd, the worker, determined he was competent to perform the task. Mr Connell then left Mr Todd in the hands of the Principal. He did so feeling confident as to the safety of his employee because he had worked for the Principal, as a contractor, for over 15 years and it was his perception the Principal had a significant work safe culture and satisfactory work safe procedures in place.

12 The Principal's established work safe procedures were followed in preparation for the performance of the work. A manager, Mr Siely, determined the task. Cooling and heating coils had to be removed from inside a large resin storage tank. The responsibility for the work was then passed to an engineer. The engineer proceeded, in accordance with the Principal's established site safety procedures, to perform a risk assessment of the task. He identified risks. He then determined the work method to be employed. He identified the certificates and qualifications required by the workers to perform the task. He so advised Mr Connell. An advertisement for workers with those qualifications was placed by Mr Connell. He interviewed and then hired two workers. Mr Connell took the selected tradesman, but not the tradesman's assistant, to the work site to confirm the worker felt he was qualified to perform the work inside the tank. The next day the Engineer undertook the training of the two selected workers. Mr Connell was not involved in either the risk assessment of the work, the design of the work method nor the related training of the tradesman and tradesman's assistant he hired.

13 An examination of the Principal's documents prepared for the performance of the work reveals there was consideration given to precautions to be taken for safe working in the performance of the task. A description of the work method the Principal's engineer had devised is necessary for this consideration as to the level of culpability of this defendant. The tradesman's assistant was to be on standby to assist in lowering into and bringing up the tradesman from inside the tank. The tradesman was to be lowered into the tank to cut out the pipes. The tradesman was to be brought out of the tank's confined space every 40 minutes. It was determined the protection equipment to be provided was a safety harness, safety shoes, safety glasses and a breathing mask. The supply of air into the tank was given consideration. It was also determined that agitator liquid lines, gas lines and air lines were to be isolated. All these procedures were put in writing.

14 By following this Principal's procedures, a comprehensive risk assessment of the work, a determination as to appropriate safety procedures and the design of a work method was completed.

15 The two employees hired, Mr Todd, the tradesman and Mr Hogg, the tradesman's assistant attended training conducted by the Principal on the day before the accident. The hazards were identified and the precautions to be taken were explained to them. They acknowledged this training and signed a "cold-work" clearance certificate and a "confined space" clearance certificate. They were made aware of the recognised difficulties of the work. The training lasted between five to seven hours on the day before the accident. The engineer responsible for the task, Mr Au-Yeung, an employee of the Principal, performed the risk assessment, the design of the work method and the training of the workers. The risk assessment, the training and the site induction were all executed in accordance with the Principal's defined company procedure.

16 Mr Au-Yeung, however, designed a system of work which required the tradesman to be lowered into the tank through a narrow opening by way of pneumatic hoist. Also through that narrow opening into the tank he threaded a chain and block operated pulley required for the removal of the pipes which were to be cut out from the inside of the tank. Too many chains were threaded through the confined opening into the tank. When Mr Todd, the tradesman inside the tank signalled to be raised up, Mr Hogg, the tradesman's assistant, activated the winch to raise him up but the chains on the block and tackle fouled the winch mechanism of the hoist and Mr Hogg could not stop the hoist. As a result, the tradesman was raised too quickly and his body was slammed against the opening of the tank which was clogged with chains and equipment.

17 Relevantly the harness on which the tradesman was attached to the hoist was not the appropriate harness. The harness which was used connected the tradesman's body to the hoist via a single shackle point between the shoulder blades. He should have been connected to the hoist via a spreader bar to shackle the points at each of his shoulders. The appropriate harness would have allowed him to be pulled vertically through the aperture of the tank even if he had been hastily hoisted up. The harness however which was attached to him, on the sharp uncontrolled upward pull of the hoist, caused his body to be bent over and he was jammed against the limited opening of the tank.

18 The system of work devised by Mr Au-Yeung, the engineer, was not suitable. There was too much equipment lowered through the aperture of the tank and the appropriate harness was not used. The pneumatic winch itself used for the lowering and raising of the worker was also not suitable. Mr Au-Yeung had only a one day training course in work systems for safe work procedures in confined space clearances.

19 As to the defendant's role in the risk assessment and the design of the work method adopted for the conduct of the work, Mr Au-Yeung said: The work itself was discussed with Dennis Connell and he knows the general requirement for that type of work. I do not accept that Mr Connell, in the circumstances, played any role in the design of the system of work adopted.

20 The High Court recently in Hollis v Vabu Pty Ltd [2001] HCA 44 (9 August 2001) made relevant comment about the effects upon traditional relationships by new and evolving industrial practices. When examining an entirely different issue, namely, the liability in negligence of a Principal to an independent contractor, it examined the shifting weight of responsibilities. McHugh J in a judgment standing alone referred to: 66. . . . the difficulties in applying traditional rules . . .to new and evolving employment practices. He commented: 72. Rather than attempting to force new types of work arrangements . . . it seems a better approach to develop the principles . . . in a way that gives effect to modern social conditions.

21 Here, the court in its consideration has before it a legislative provision which places an absolute obligation on the employer under s15. There is also an obligation on the Principal who in the conduct of its undertakings at its place of work exposes persons to a risk to his/her safety (s16). There is a developing, modern industrial trend for large employers to contract out much of their work. The nature of the relationship between the defendant company, as an independent contractor, and the Principal, reveals the subtle but evolutionary change in established industrial practice. The court is examining the pressures placed upon small contractors who provide services to such large corporations. The large corporations, to their credit, have expended significant amounts of money, and time with their commitment to site safety. They, as a matter of practice, and with all good intent, impose their procedures upon the independent contractor to whom they contract out their work (see WorkCover Authority of NSW (Insp Mauger) v SWR Constructors Pty Ltd [2000] NSWIRComm 115; WorkCover Authority of NSW (Insp Stothard) v BHP Engineering Pty Ltd (unreported decision, IRC7290 of 1997, 16 July 1999); WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor 95 IR 383; WorkCover Authority of New South Wales (Inspector Mauger) v Ridge Consolidated Pty Ltd [2000]NSWLRComm15 (published 8 March 2001).

22 The degree of culpability of an employer has been examined by the Industrial Relations Commission of New South Wales in a number of aspects. The court examined the level of culpability of an employer when reliance was placed by the defendant company upon procedures and assurances from third party corporations of equal stature. In Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Insp Ch'ng) 90 IR 432 in examining the level of culpability of a labour hire firm which, as an employer, placed workers in employment (much as did Mr Connell), the Full Bench (Wright J, President, Walton J, Vice President and Peterson J held an employer (at 456): . . . has a positive obligation under s15(1) to directly supervise and monitor the work of the employee to ensure a safe working environment. And also (at 456): This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe. The plea of guilty entered by the defendant in this matter acknowledges this positive obligation.

23 Some other issues as to the level of culpability of a defendant have been given consideration by the Court. In Nesmat Pty Limited v WorkCover Authority of NSW 87 IR 312, the Full Bench (Bauer, Hill and Marks JJ) (at 323) took into account, in assessing penalty, that a defendant company and, in particular, its responsible person were misled and the company personal were by a Principal: . . . induced to believe the substation was not live and were lulled into a false sense of security by the failure of Public Works to specify and warn, orally and/or in writing in the tender/contract documentation, that the substation was live. The failures were found to be compounded by the Principal then advising and authorising an employee to break into a sub-station in order to gain access. That authorisation was given in a situation where the Principal, as far as the contractor was advised, had sole occupation and control of the site and well knew the sub-station was live.

24 In Wong v Melinda Group Pty Limited 82 IR 118, Hungerford J examined a different set of circumstances and found (at 132): The defendant ... has itself been a victim of circumstances over which it was unaware and, on becoming aware belatedly and indirectly ... was quite limited in action to take in relation to work which was then proceeding.

His Honour also found (at 131) the defendant was "particularly sensitive to and conscious of safety considerations."

25 Here the court is examining a relationship where there is revealed in the arrangement an inequity. The large corporation imposed its system of work on the contractor. However, a false sense of security as to the safety of its employees cannot remove from a defendant company, the contractor, its obligations under the Act. The prosecutor submitted Mr Connell should have challenged Mr Au-Yeung's qualifications to devise the task specific procedures. Mr Connell did not perceive himself as the employer totally responsible for the work method and training but, rather, subservient to the engineer and maintenance manager of the Principal for whom he was providing workers to perform service. Mr Connell, after his own many years work experience with the Principal, felt comfortable and assured of the Principal's commitment to safe work practices. He held some preliminary discussion as to the qualifications of the workers required for the task. He assured himself, by a visit to the worksite, that the chosen employee was so qualified. The Principal's safe working system, its risk assessment and design of the safe work method allowed no part to be played by the contractor.

26 As an employer the defendant company has an absolute obligation to provide a risk free work environment for its employees. So too does the employer conducting an undertaking at its place of work, namely, the Principal. Large corporations, once they contract-out their work must empower, within the contractual relationship, the contractor to play a role in the decision making process even if it is the Principal's defined safety procedures that are followed for the risk assessment of the task and the design of the work method to be adopted.

27 In this circumstance, the Principal defined the task involving its tank, its management determined to use too much equipment through a limited space and management chose the wrong type of equipment for the harness and the block and tackle. 28 Whilst reliance was placed by this employer on his own perception of the quality of the worksafe procedures put in place by the Principal; while he had worked on the site often; while he had been trained in the Principal's cultural awareness of site safety; while he had attended many of its training programmes; the defendant's sense of security as to the safety standard on his workers' worksite was misplaced. The Principal's system of work was faulty.

29 While a contractor must be involved in the development of work safe practices on industrial sites on which their employees are sent to work, commensurate with their responsibilities and liabilities under the Act, so too the Principal, on whose worksite the task is performed, must carry a significant burden especially if, in the circumstances, it takes the primary responsibility for devising the system of work.

30 In an assessment of the gravity of this offence the defendant company assumed none of its responsibilities. The employer had a false sense of security as to safety on this worksite arising from his perception the Principal had in place a comprehensive safety awareness practice and task specific worksafe procedures. This created a serious risk to the safety of its employees.

31 A number of considerations as to the subjective elements to the offence have been placed before the court in its consideration as to penalty. This company has been in existence since 1983 employing between five to eight workers. Mr Connell is the joint managing director of the company with his wife. It can properly be entitled a "small business". As with most contractors, operating within a small business Mr Connell is sometimes one of the workers on site as well as the supervisor of his employees. He has had a long association with ICI-Orica-Dulux, the Principal. That association has always been one of contractor. He has had thorough training in the safety procedures adopted by the company as evidenced by a number of certificates he obtained through their Safety Education Programme. He revealed he has, on the road, four trucks manned by workers who perform general maintenance tasks in heavy industry. Since 1983 there has never been a claim made against his company for work injury nor any prosecutions under the Occupational Health and Safety Act 1983 for safety breaches. He relies on this unblemished industrial record.

32 While he presented as a tradesman and contractor who was personally safety conscious and fully trained in safety procedures, as an employer he had in place no training manuals nor safety procedures to be followed by his workers. He submits the personal example he set and the instruction he gave to workers should be perceived as appropriate training of his workers and relies on his unblemished industrial record as an indication to the court of his company's priority for safety awareness.

33 Since the accident evidence revealed the defendant company has expended some thousands of dollars in the preparation of documents enunciating both a company safety policy and task related safety procedures to be followed by the defendant's company's employees. The training of workers in these policies is directed to encourage an awareness of site safety. The new procedures in place demand a task specific safety assessment and safe working method is in place on each worksite of the defendant. In the preparation of these documents and the design of the company's safety awareness policy, Mr Connell expressed the frustration he encountered in obtaining professional assistance. The WorkCover Authority, with responsibility for implementing the Occupational Health and Safety Act 1983 must keep to the forefront its responsibilities to the employer/contractor within a small business who requires both education and assistance as their awareness of their very serious obligations and responsibilities under the Act are acknowledged.

34 The financial status of the company can be given consideration in mitigation of penalty. The company has an approximate turnover somewhere between $500,000 and $900,000 a year. The husband and wife earn approximately $70,000 between them per year. After nearly 20 years of business the company operates without an overdraft. It carries the ongoing cost of up to eight employees, many of whom are qualified trades-persons plus the cost of maintaining four vehicles on the road with associated equipment costs. The company has no property assets but also carries no debts.

35 I take into account in consideration as to mitigation of penalty the corporate character of this company. The corporate reputation of a company is relevant (see WorkCover Authority of NSW (Insp Dubois) v Transfield Pty Limited (unreported, IRC6985 of 1999, 8 November 2000, WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor (2000) 95 IR 383; WorkCover Authority of New South Wales (Inspector Mauger) v Ridge Consolidated Pty Ltd [2000] NSWLRComm15 (published 8 March 2001); see also discussion referred to in WorkCover Authority of NSW (Insp Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92.

36 Mr Connell's small business has contributed significantly to the economy in this State with the employment it provides. This employment opportunity has, prior to this accident, been carried out responsibly and in a safe manner. Mr Connell tenders some references. These references endorse the corporate reputation of this company as one of competence producing work of excellence and revealing its management as cautious and responsible with a high regard for safety. I also consider the speedy and competent action the defendant company has taken as an employer to codify ingrained safety practices.

37 There can be a discount for the utilitarian value of an early plea of guilty (see R v Thompson; R v Houlton (1999-2000) 49 NSWLR 383). In R v Carter [2001] NSW CCA 245 (27 June 2001), Barr and Howie JJ held [at 14]: . . . although the evaluation of the discount is a matter for the discretion of the sentencing judge, that are two circumstances that will generally affect the appropriate level of the discount in a particular case. They are, firstly, the time when the plea is entered, so that the earlier the plea the larger the discount and, secondly, the complexity of the evidence to be gathered and adduced to prove the charge, so that the greater the difficulty in collecting evidence or the greater the length and complexity of the trial, the greater the utilitarian value of the plea and, therefore, the greater the discount. In a particularly difficult and complex matter the early plea may . . . exceed the normal upper range of 25 per cent. 38 In Carter, their Honours [at 16] further commented it was erroneous for a court, when determining the utilitarian value of the plea to consider the fact the case against the defendant was very strong. An examination of the file reveals the charge was listed with another prosecution instigated under s16(1) of the Act against ICI-Orica-Dulux, the Principal. Once the prosecutions were separated, this defendant entered an early plea of guilty. I find there is no reason why this defendant should not receive the full benefit of his early plea allowing a 25% discount as to penalty.

39 I find the defendant guilty. I impose a penalty of $30,000.00 with a moiety to the WorkCover Authority.

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