Inspector Peter Newman v Mainland Civil Pty Ltd

Industrial Relations Commission (NSW)|2003-09-10|Before: Haylen J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Peter Newman v Mainland Civil Pty Ltd [2003] NSWIRComm 288 PROSECUTOR: Inspector Peter Newman PARTIES : DEFENDANT Mainland Civil Pty Ltd FILE NUMBER: IRC No 4672 of 2002 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act, 1983 - s 15(1) - working near heavy machinery on construction site - workplace fatality when crouching worker hit by grader - system of safety in operation but overlooks simple steps to avoid risks to safety when working near heavy machinery - thorough review of safety practices following accident - new work methods introduced - risk to safety foreseeable - offence serious - subjective features considered - early plea - contrition and good corporate citizenship established - first offence in inherently dangerous industry - substantial discount on penalty allowed - fine imposed HEARING DATES: 08/28/2003 DATE OF JUDGMENT: 09/10/2003

JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

10 September 2003 Matter No. IRC 4672 of 2002 INSPECTOR PETER NEWMAN v MAINLAND CIVIL PTY LTD PROSECUTION UNDER s 15(1) OF OCCUPATIONAL HEALTH AND SAFETY ACT 1983

JUDGMENT [2003] NSWIRComm 288

1 Inspector Newman of the WorkCover Authority of New South Wales brought a prosecution against the defendant pursuant to the provisions of s 15(1) of the Occupational Health and Safety Act 1983 in relation to a fatal workplace accident which took place on 10 August 2001 at Northmead. The defendant has entered a plea of guilty and this judgment deals with the submissions made in relation to penalty.

2 The nature of the defendant's work, the circumstances surrounding the accident leading to the death of Robert Keith McGrath and the terms of the charge were set out in an Agreed Statement of Facts which was tendered by the parties. Omitting formal parts, the Agreed Statement of Facts was as follows: … 3. At all material times, the Defendant employed Robert Keith McGrath, otherwise known as Charlie McGrath ("the deceased worker"). The deceased worker commenced employment with the Defendant on 15 February 2001.

At all material times, the Defendant carried out the business of construction.

At all material times, the Defendant was engaged as the principal contractor by Coca Cola Amatil (Australia) Pty Ltd ("CCA") to construct a temporary car park and a permanent car park at 104 Briens Road, Northmead in the State of New South Wales ("the site").

At all material times, the Defendant sub-contracted with D & M Hughes Civil Engineering Pty Ltd for the hire of a caterpillar grader and operator.

At all material times, the Defendant sub-contracted with JTM Bobcat Hire to hire a bobcat and operator.

At all material times on 10 August 2001, the deceased worker was a labourer at the site where he was involved in taking measurements for the levelling of the designated car park area.

The construction of the temporary car park commenced on or about 26 March 2001.

In order to access the temporary car park, persons and vehicles would need to pass through the permanent car park under construction. While the permanent car park was under construction, a plastic mesh barrier was used to separate the access way from the construction work. This plastic mesh barrier was removed on Thursday, 9 August 2001. The barrier was removed as the construction involved the levelling and preparation of the same area.

At all material times, Salim Kodr-Chah was employed by the Defendant as its site engineer.

At all material times, Rodney Bartlett was employed by the Defendant as its leading hand. At all material times, Rodney Bartlett worked directly with the deceased worker.

On 20 July 2001, a Waugh & Josephson Caterpillar 12G grader ("the grader") was supplied to the Defendant under a hire agreement by D & M Hughes Civil Engineering Pty Ltd together with an operator, Inder Singh Kalsi, otherwise known as Paul, to work at the site.

The grader's serial number was 3WC948, was a 1986 model and was owned by D & M Hughes Civil Engineering Pty Ltd. The approximate specification of the grader are: Weight 13.5 tonnes Wheel base 5.92 metres Length 8.3 metres Width 2.45 metres Maximum speed 39.4 kilometres per hour in forward or reverse gear.

At an inspection by the Informant on 10 August 2001, the following features of the grader were observed: · A centre mounted mirror inside the cabin, approximately 430 mm wide and 200 mm high. When seated, the view to the rear can be obscured by the viewer's own head and an exhaust pipe rising from the rear engine. · An outside mirror on the right hand side which was approximately 500 mm high and 100 mm wide. The view from this mirror gives a line of sight down the side of the grader but not immediately behind the grader. · With the driver's side door in the open position the view from the driver's cabin was noted to be obscured. · The grader did not have a left side rear view mirror.

On Friday, 10 August 2001, the permanent car park was in its final stage before asphalting and the levelling process with the grader was almost complete.

On Friday, 10 August 2001, around midday, a barbeque was organised by the Defendant at the site and the following people were in attendance. (a) Angelo Forte and Stephen Barrett, Directors of the Defendant; (b) Salim Kodr-Chah, Rodney Bartlett, Max Scampino, employees of the Defendant; (c) The deceased worker; (d) David Crees, a representative of CCA; (e) Inder Singh Kalsi, the driver of the grader; (f) Mick Challita, the Bobcat operator.

The Defendant provided alcohol at this barbeque in the form of Crown Lager beer.

Subsequent to the lunch barbeque on 10 August 2001, the deceased worker was working with Rodney Bartlett taking measurements to check the surface level of the car park. These measurements were taken by running a string line from a series of pegs that were set at a known distance into the ground.

The surface to the string line would be measured using a tape measure and the measurement sprayed onto the ground using a spray can of fluorescent paint.

At all material times, the grader operator was taking cuts in a southerly direction at the time and was pushing spoil into a pile at the end of his run. Each cut by the grader would also produce a row of soil, which was the excess which ran from the side of the blades; which row of soil is known as a windrow.

At all material times, the Bobcat operator removed the spoil.

Prior to about 3.00 pm on 10 August 2001, Inder Singh Kalsi had taken five or six cuts in the grader and had stopped at the top of his run at the southern end of the site.

While the grader was stopped at the southern end, Rodney Bartlett decided that there was time to take a measurement whilst the grader was at the top of its run. Bartlett tightened the eastern end of the string line and the deceased worker went along the string line to take a measurement to check the level.

While the deceased worker was engaged in taking this further measurement, the grader operator started and continued to reverse. At the time of reversing, the distance from the rear of the grader to the deceased worker was between 12 and 19 metres.

At all material times, the grader was reversing in second gear. According to the manufacturer's specification, this would result in the grader travelling at about 6 kph. The grader has six gears in reverse enabling speeds between 3.7 kilometres per hour and 39 kilometres per hour.

At all material times, the beeper on the grader was operating while it was being reversed.

At all material times, the deceased worker was wearing high visibility clothing.

Initially the deceased worker was not facing the grader as it was reversing. The deceased worker turned to face the grader as it hit him after he was alerted to it by a fellow worker.

At about 3.00 pm, the deceased worker was struck by the middle rear of the grader as it was reversing. After he was struck by it, he stumbled, then fell, and the grader proceeded over the top of him.

The grader was stopped after Rodney Bartlett alerted the operator to what had occurred. The grader operator was able to manoeuvre the grader to allow access to the deceased worker.

Following the accident, Rodney Bartlett, Max Scampino and Salim Kodr-Chah tried to give first aid to the deceased worker. In the minutes following the accident, a passing ambulance was waved down and attended the scene. However, the deceased worker could not be revived given the injuries received in the incident and died at the site.

The operator of the grader, Mr Inder Singh Kalsi was submitted to a roadside alcotest on the site shortly following the accident by Parramatta police officers which showed a nil reading. The post mortem of the deceased revealed that no alcohol was detected in his body.

On or prior to 10 August 2001, all employees of the Defendant working at the site had undergone an induction process conducted by Salim Kodr-Chah before commencing work.

At all material times, the Defendant has a Safe Work Method Statement in relation to the site, being specifically for the clearing, import of clay and backfill, sub-grade compaction and placing base material for the temporary car park. This Safe Work Method Statement stipulated that the work was to be carried out in the following manner: (a) The areas would be set out by the foreman/surveyor as required. (b) Establish type of machinery to be used for each particular area. (c) The operator of each chosen item of machinery shall have readily available their WorkCover Approved Certificate of Competency. (d) On a monthly basis and prior to commencing on site, the operator for each item of machinery on site shall fill out the monthly maintenance report issued by Mainland Civil Engineering Pty Ltd. (e) During machine operation and hand excavation, workers in the immediate vicinity of the workplace shall be provided with the adequate hearing protection where exposed to excessive noise loading. (f) Whilst utilising hydraulic hammers and twin head grinders on excavators, water blasters shall be used to suppress dust levels as required in accordance with Regulation 95A, Construction Safety Act 192. (g) Operators using the abovementioned water blasters shall wear the Racal AH1A air stream helmet for toxic dusts and mists. All other persons in the immediately vicinity shall wear the 3M8710 face masks. (h) Whilst operating a jackhammer, labourers shall wear a 3M8710 dust mask and approved hearing protection. (i) Sub-grade will be compacted with suitable roller. (j) Crushed concrete/material available from site will be placed above the sub-grade.

In addition to the Safe Work Method Statement, the Defendant had in place a safety plan called "Subcontractors Safety Management Pack" ("SSMP") which it submitted to CCA. This SSMP is dated 20 June 2001 and includes an OH&S safety policy outlining the following: Roles and responsibilities. Document control. Hazard identification and risk assessment. Job safety analysis. Skills and competencies. OH&S induction. Workers' compensation and rehabilitation and personal injury insurance. Hazard reporting - electrical. Hazardous substances. Lifting gear. Plant. Personal protective equipment. Fire protection. Toolbox talks. First aid and accident investigation.

Within this SSMP there is a Job Safety Analysis which identifies the potential hazard of being hit by machines and identifies four control measures: training, safety vests, stay clear and make sure operator is aware of persons working within its zone.

The Defendant did not have a specific written work procedure for how the process of checking levels was to be carried out in and around moving plant.

On 10 August 2001, the Defendant failed to ensure the health, safety and welfare at work of its employees and in particular, the deceased worker, contrary to Section 15(1) of the Occupational Health & Safety Act, 1983 (NSW) in that the deceased worker was engaged at the site as a labourer taking measurements of ground levels in proximity to the grader when he was struck by it and fatally injured by reason that: (a) the Defendant failed to provide and maintain a system of work that was safe and without risk to health in that: (i) the manner in which the work was conducted was outside the specifications of its Job Safety Analysis in that: · the grader driver was not aware at all material times of the precise position of the deceased worker; · the deceased worker worked in such proximity to the moving grader as to render his position unsafe; · the grader was operated without a left side rear view mirror which created a blind spot and a conseqent risk to safety which the Defendant did not identify and obviate. (ii) the operation of the grader at the site, when it did not have a left side rear view mirror, involved a risk to safety; (iii) there was no spotter or observer in place at all times to enable the persons working in and around the moving grader (including the deceased worker) to do so safely; (iv) there was no designated system of communication between the grader operator and the persons working on the ground (including the deceased worker) in proximity to the moving grader; (v) the demarcation between the construction zone and the CCA employees temporary car park was not properly maintained at all times; (vi) the movement of CCA employees and vehicles using the temporary car park, when it was not properly isolated from the construction area, was a distraction to the grader driver; (vii) the work in taking ground measurements, which involved regularly bending down or squatting, involved a risk of the deceased worker being obscured from the view of the grader operator; (viii) the consumption of alcohol at the site was contrary to Coca Cola Amatil NSW Pty Ltd Site Rules. (b) the Defendant failed to maintain a place of work under its control in a condition that was safe and without risk to health in that: (i) the deceased worker was taking ground measurements at a place where he was at risk of being struck by the grader; (ii) there were no safety barriers in place around the area where the deceased was taking measurements; (iii) there was no spotter or observer provided to enable the deceased worker to perform his duties safely in the area where he was working. (c) the Defendant failed to provide such information, training, instruction and supervision in relation to the work such as was necessary to ensure health and safety in that: (i) having put in place a site safety policy it did not regularly reinforce the identified hazard controls which were documented within it; (ii) it did not provide a safe work method statement relating specifically to the job of taking ground measurement levels in proximity to moving plant; (iii) it did not have a spotter or observer in place to supervise the work; (iv) it did not provide specific training in relation to the management of moving plant on the construction site; (v) it did not provide proper supervision of the workers in relation to their work in close proximity to moving plant. 3 The prosecutor tendered a number of photographs which assisted in understanding the layout of the site, the nature of the work and the circumstances surrounding the accident. A certificate of prior conviction confirmed that the defendant, in its four and a half years of existence, had no prior convictions. The defendant's managing director, Mr Dahan, gave evidence by way of affidavit and confirmed that, while involved in the civil construction industry for 20 years, this incident was the first serious workplace accident which occurred under his management. Quite apart from the company's clear record, Mr Dahan stated that he had no prior convictions under the Occupational Health and Safety Act 1983 and he had not been a director of any other company that had been convicted under the Act.

4 For the defendant, extracts from the records of interview from the operator of the grader, the leading hand and the project engineer were read to demonstrate that there was an induction programme in operation at the site which identified the potential hazard of moving machinery and the requirement to stay clear of such machinery and, further, that induction training was given to all persons who worked on the site.

5 Mr Dahan described the company as a civil construction contractor on building and construction projects in the Sydney metropolitan area. The company had approximately 58 employees, 25 of whom worked in administrative and supervisory positions either in the office or at the constructions sites, with the remainder employed in building trades or as site labourers. The defendant also engaged up to 60 persons to work as sub-contractors on its projects. Many of the company's employees had worked together for many years both with the defendant and with previous organisations. Mr Dahan stated that the defendant was committed to ensuring that it met its obligations under the Occupational Health and Safety Act and that before each employee commenced with the company they were interviewed and assessed as to their skills, qualifications and capacity to perform work at a construction site. Each employee was inducted into the workplace, with emphasis on the occupational health and safety aspects of their work. Training and induction was provided by experienced employees and later followed by close supervision by site supervisors from the defendant.

6 The company also required each sub-contractor to undergo a site safety induction and to be conversant with the site safety rules. That process had been in operation since the commencement of the company. Further, before commencing work on a particular construction site, the defendant required each employee to be inducted as to the particular nature of the work to be performed, the procedures to be followed, workplace health and safety hazards, risk management procedures and site rules.

7 From early 2000, the company began using a standardised and documented safety procedure, referred to as "S-Packs". This involved the development of a safety plan for its construction projects, the generation of Job Safety Analysis (JSA) sheets, the compiling of a Hazard Register and the performance of workplace risk assessments. In approximately March 2001, the defendant engaged a consultant to review its arrangements with workplace safety and for the rehabilitation of injured workers. The consultant was also engaged to upgrade the defendant's procedures and to provide training to employees. That consultant has continued to monitor, review and upgrade all of the defendant's safety procedures.

8 In the course of using the S-Packs and addressing issues of workplace safety at construction sites, the defendant holds toolbox meetings as a matter of practice at each site with both employees and contractors. Examples of safe working methods, statements and toolbox meeting records from various sites were annexed to Mr Dahan's affidavit and demonstrated the detail involved in completing these documents.

9 When the company won the contract to construct a new car park facility at the Northmead premises it assigned employees and contractors to work on the site. Prior to commencement of the project, an S-Pack was prepared using the company's standardised and documented safety procedures.

10 In approximately late March 2001, the defendant inducted four employees who had been assigned to work at the site including Mr Robert McGrath. Mr McGrath had completed his site induction on 26 March 2001 and had the full range of matters covered by the JSA and the safety rules explained to him. Prior to the accident, the four employees had been assigned to work with a contractor on grading the surface of the car park. That work had been the subject of JSA prepared by the defendant which identified the potential hazards and made an assessment of the risks involved in the grading works. The JSA sheet specified nine control measures for addressing hazards arising from working near the grader and other moving machinery. An examination of these documents showed that there were a number of areas where being hit by earth moving plant had been identified and that a job safety analysis was required. In relation to excavation by heavy machinery, the potential hazard was identified as being hit by machines. Amongst the controls laid down were - to provide tool box training; instruct all personnel to stay clear of the machines; where that was not possible, personnel to ensure that the machine operator is aware of them being within their zone; to ensure coloured safety vests are worn and to ensure that safety attire is worn. Under the terms of the JSA, it was the responsibility of the defendant's project manager on site, Mr Kodr-Chah, to train the employees on these control measures at site induction and tool box meetings. Mr Chah was also required to induct the contractors performing grading work instructing them as to site rules. From enquiries made by Mr Dahan, he was satisfied that the hazards identified in the JSA as well as the site safety rules were discussed at the site induction and the tool box meeting.

11 Mr Dahan said that, in order to perform the contracted work, the defendant had hired a grader with a driver, Mr Kalsi. From enquiries Mr Dahan made, he believed that the grader was delivered to the site without a left rear side mirror.

12 In relation to this accident, Mr Dahan was not present on site but travelled to the job with a fellow company director when notified of the accident. He spent some time speaking with the employees and organised contact details for a professional counsellor to provide assistance over the weekend and also for employees to be driven home that evening. As a mark of respect for Mr McGrath, the defendant suspended all work on its sites during that weekend and, over the course of the next two days arranged for all site employees and contractors to attend a group counselling session in the defendant's Rockdale offices. On the day of Mr McGrath's funeral, the company ceased work on all its sites and arranged for all employees who wished to do so to attend the funeral.

13 Mr Dahan said that he had arranged for the defendant to provide immediate financial support to Mr McGrath's widow and children pending the payment of insurance and other payments and had also arranged for an industry collection to assist the family. The defendant had paid the full costs of Mr McGrath's funeral. In addition, Mr Dahan had attended an interview conducted by the insurance company with Mrs McGrath and he provided support and assistance to her during that interview. The support has been ongoing over recent years and every two months or so Mr Dahan made personal contact with Mrs McGrath to ensure the family was coping.

14 As part of the defendant's ongoing commitment and support to the McGrath family, the company employed Mr McGrath's son in January 2003. He was progressing in his work to become a construction supervisor with the defendant. On the first anniversary of Mr McGrath's death, the defendant arranged for the placement of a memorial plaque at the site of the accident and conducted a short memorial service. The McGrath family attended this service along with employees from the company who were involved in the accident together with the sub-contractor and other representatives.

15 Following the accident, the defendant initiated an investigation and engaged an independent occupational health and safety consultant to review and report on the defendant's safety procedures for the site and to identify any corrective action that needed to be taken. Reviews of all other work sites operated by the defendant were also conducted. It was explained that the defendant engaged a different consultant as it wished to gain an independent opinion as to its work practices. The consultant advised the defendant that its work practices did not require alteration. The report referred to, dated 31 August 2001, was a two page document which was essentially a check list of 18 categories with space to indicate whether the subject was dealt with by the S-Pack and a further space for comments. Despite that finding, the defendant continued an ongoing process of review and consideration of its procedures, and as a result, modified procedures for working near moving machines when grading was taking place. This was demonstrated by an internal memorandum dated 29 April 2003 and dealt with pavement works and the use of graders and ground personnel needed to string and measure. The following five instructions were then laid down: 1. Stringing and measuring is to be carried out once the grader has completely stopped and the operator and ground crew acknowledge each other of this. 2. No stringing or measuring is to be carried out from behind the grader. The grader is to reverse and stop. All stringing and measuring is then to take place in front of the grader. 3. When the grader reverses and stops, it would be wise for the project management team to have the grader operator assisting one of the ground crew in the stringing and measuring operation. 4. Where the operator does not assist in the stringing and measuring operation, then the ground crew shall consist of no less than two men carrying out this type of task. These men are to be instructed to "spot" for each other and for other personnel in the work area including visitors on site. Both the ground crew and the operator are to be inducted into this procedure. 5. Where measurements are taken using survey equipment (laser level) with one man on the ground, that man is to act as the "spotter" while the grader is working. When measurements are to be taken, the operator of the grader is to come to a complete stop and alight from the machine. Again, the grader reverses and stops while measurements are then taken in front of the machine. It was accepted by counsel for the defendant that there was a substantial delay between the August 2001 review of its processes and the promulgation of this instruction in April 2003.

16 In his profession, Mr Dahan had been active in the Civil Contractors' federation having been a State committee member, New South Wales State President and National Treasurer. In 2002, he was elected as National Vice-President, a position he still retains. The Federation was an industrially registered body representing civil contractors at both State and National levels. It was a non-profit organisation seeking to assist the industry in areas of industrial relations, training, lobbying, occupational health and safety management and understanding. In performing these functions, the Federation worked closely with Government bodies including those involved in public works, local government, education and training and WorkCover. Mr Dahan spent approximately 15 per cent of his time, without charge, in his role with the Federation.

SUBMISSIONS 17 The prosecutor submitted that the essence of the defendant's breach lay in its failure to provide and maintain a system of work that was safe and its failure to provide appropriate information, training, instruction and supervision. The defendant had pleaded guilty to the charge as particularised. It was accepted that the maximum penalty available for this first offender was $550,000.

18 The prosecutor identified the following matters as being relevant in assessing the objective seriousness of the offence: (a) the defendant's S-Pack identified the risk of being hit by a moving plant in bulk earth works and pavement construction as a class one risk requiring job safety analysis; (b) the JSA identified the risk of being hit by moving plant in the tasks of bulk earth works, pavement construction, spreading the sub-base and base material, compacting the sub-base and base material, excavating by heavy machinery, moving the excavated material to stock pile and re-spread and placing, supplying and spreading topsoil and mulch; (c) the JSA identified appropriate controls as: (i) instructing all personnel to stay clear of the machine; (ii) ensuring the machine operators are aware of all personnel within their zone; (iii) ensuring coloured vests are worn; and (iv) ensuring safe attire is worn. (d) there were no specific written work procedures in the form of safe working method statements or in any other form in relation to the job of taking ground measurement levels in close proximity to moving plant; (e) there was no specific training in relation to the management of moving plant; (f) the defendant did not regularly reinforce the identified hazard controls in its own S-Pack. 19 In relation to the grader, it was noted that there was no left side rear view mirror, thereby creating a blind spot. In addition, the view to the rear could be obscured by the viewer's own head and the exhaust pipe rising from the rear engine. The grader and the grader operator had been supplied to the defendant pursuant to a hiring arrangement.

20 In relation to the specific task, it was noted that the work involved taking ground measurements. This involved regular bending down or squatting thereby increasing the risk of the worker being obscured from the view of the grader operator. There was no designated system of communication between the grader operator and the persons working on the ground in proximity to the moving grader. There was no spotter used during the task and there was no supervisor used during the task.

21 In relation to assessing the detriment to safety, this was said to lie in the presence of workers in the near vicinity of large moving plant and the size and weight of that plant. There was a real risk of serious injury or death.

22 In relation to foreseeability, it was submitted the risk to safety was not only foreseeable but was foreseen and specifically identified in the defendant's documentation. There were simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident. These were relevant in assessing the seriousness of the offence. The April 2003 internal memorandum demonstrated that the defendant was capable of establishing a safe system.

23 In relation to the plea of guilty, the prosecutor accepted that the plea had the substantial qualities of facilitating the administration of justice and was one entered at an early time thereby justifying the maximum discount.

24 A number of steps had been taken by the defendant after the accident to improve workplace safety. There had been a review of all occupational health and safety procedures at all of the defendant's sites and the April 2003 memorandum had given quite specific directions in relation to measuring ground levels in association with the use of a grader. The prosecutor accepted that the defendant was entitled to some credit for these efforts but that the steps themselves revealed that they were capable of being taken before the accident had a more pro-active approach been adopted by the defendant.

25 While it was acknowledged that the managing director of the defendant had an unblemished record under the Act for over 20 years, the relevant entity before the Court was the defendant company. It had no convictions in its four and a half years of operation and while it is entitled to credit for that factor this was nevertheless a relatively short period of operation. In addition, both general and specific deterrence were relevant.

26 The prosecutor accepted that the defendant had met all its statutory obligations in relation to the WorkCover investigation and had co-operated in that task. Further, the defendant had acted "commendably" in relation to the family of the deceased worker, lending both financial and emotional support.

27 For the defendant, it was pointed out, that although the contract was won in 2000 and the S-Pack was signed off in July 2001, the work on the car park had not commenced until June-July 2001. At all relevant times there were safety practices in operation.

28 Reference was made in the Agreed Statement of Facts to alcohol being available at a lunch time barbeque on the day of the accident. The barbeque had been arranged to mark the end of the project but only the usual half-hour lunch was observed. Soft drink was also provided, but this occasion was unusual because it was not the defendant's policy to provide alcohol on site. It was important to recognise that both the driver and the deceased worker when tested showed no alcohol in their blood systems. In the circumstances the unusual presence of alcohol on this day should have little bearing on the objective seriousness of the offence.

29 In relation to the existence of a blind spot when operating the grader, while this might be so having regard to the circumstances of the accident, the existence of the blind spot may not have contributed to the occurrence of the accident.

30 It was submitted on behalf of the defendant that had its controls been carried out then it is likely that the accident would not have happened. Mr Bartlett was the leading hand and the other part of the stringing team. The safety system had addressed the risk of working with heavy machinery but the steps identified to deal with that risk had not been followed.

31 It was appropriate to regard the defendant as a small to medium sized construction company. While impecuniosity was not pleaded, bearing in mind the size of the company as described by Mr Dahan, it was obvious that a penalty imposed would have a significant effect on the company.

32 Steps had been taken to address the issues raised by the accident and there was now a comprehensive instruction in operation, albeit, an instruction that took some time to promulgate. In addition, it was relevant that only a minimal amount of grading work was done by the defendant in its day to day work.

33 Having regard to the nature of the business, the defendant's record, and the early plea, the defendant was deserving of the full level of discount in relation to these matters. The defendant had also shown contrition through the actions of Mr Dahan, the financial assistance given to the deceased's family, the care and compassion shown for the workers at the site by making available counselling facilities and the continuing involvement with the family of the deceased.

DELIBERATION 34 I am satisfied that, on a consideration of all of the evidence, this is a serious breach of the Act committed by the defendant. As the Court has noted before, it is not infrequent that otherwise diligent employers with quite specific systems of safety nevertheless overlook simple and straightforward methods to ensure the safety of workers. In this case, as the prosecutor has pointed out, the risk of working near heavy machinery during earthmoving work had already been identified by the defendant as a workplace hazard. The defendant's response to that hazard was less than comprehensive: workers were instructed to stay clear of the machine and, where that was not possible, to make the machine operator aware of their presence. They were to wear coloured safety vests and safety attire. The seriousness of the offence is established by its foreseeability and the fact that there were quite straightforward and obvious steps available to address the risk. This is demonstrated by the April 2003 memorandum which requires that during a task of grading and measuring the ground level, the grader is to be completely stopped while the stringing and measuring is carried out; that there be no stringing or measuring carried behind the grader; using the grader operator to assist in the stringing and measuring operations; requiring two people to carry out the stringing and measuring task with both employees to be instructed to spot for each other and other personnel in the work area.

35 It is tragic that in the present case it was the leading hand who decided that the measuring task should be undertaken when the grader had finished a run and was facing away from the work. It does not appear that the leading hand acted as a spotter nor did he give any indication to the grader operator of the presence of Mr McGrath behind the grader. The defendant submits, somewhat hopefully, that, if the system of work rules had been observed this accident would not have taken place. I am not convinced that this is so. Having identified a high level of risk, the responses identified by the defendant were modest to say the least. It should not have taken a fatal accident to implement a system of work which required the stringing and measuring to be performed in view of the operator (rather than behind the grader operator) and the use of spotters to keep a lookout for the safety of employees and other personnel including visitors. The effectiveness of the defendant's review of its procedures is tempered somewhat by the length of time taken to introduce the procedures set out in the April memorandum. Nevertheless, those steps have been taken and introduce a more effective and safe system of work in circumstances where measuring ground levels is performed in conjunction with the operation of a grader.

36 This is a case where both general and specific deterrence form a significant element in setting an appropriate penalty. The defendant works in the construction industry which is a major industry in the State. Its experience again demonstrates the need, firstly, for there to be an ongoing consideration of safety issues before an accident occurs and, secondly, how easy it is to overlook simple and easily implemented steps to ensure the safety of employees. In relation to specific performance, although I note that grading work is not a large part of the defendant's normal work, its participation in this industry means that such work necessarily forms part of its undertaking and different contracts will require different levels and frequency of grading work. The defendant is also the employer of a significant number of persons in this industry.

37 Having regard to these matters and the objective seriousness of the offence, I would impose a primary penalty of $120,000.

38 There are a number of subjective features which must be considered in this case. I agree with the submission made by both the prosecutor and the defendant that the plea here should be regarded as an early plea and that the defendant should be entitled to the full discount in that respect. A discount therefore of 25 per cent will be allowed on that basis. The defendant operates in an important and inherently dangerous industry. It may have been in operation for a relatively short time, but the fact that it has not offended against the Act is an important consideration. The defendant's managing director, Mr Dahan, has had a long history in this industry and also has a clear record indicating that, in the direction that is given to this corporate defendant, the concept of workplace safety ranks highly. I accept that the defendant has demonstrated contrition in both the manner in which it had counselled its employees and provided immediate and ongoing support to Mr McGrath's family. In all the circumstances, the defendant has demonstrated its good corporate citizenship. Having regard to these matters I would allow a further discount of 10 per cent.

ORDERS 1. The defendant is convicted of the charge to which it has pleaded guilty in Matter No IRC 4672 of 2002.

The defendant is fined the sum of $78,000 with moiety thereof to the prosecutor.

The defendant is to pay the costs of the prosecutor as agreed and, in the absence of agreement, as provided for by the Rules.

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Judgment (82 paragraphs)

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