Inspector Robert Mayell v Bilfinger Berger Services - Roads Pty Limited

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

PROSECUTOR: Mr M Cahill of counsel WorkCover Authority of New South Wales (Ms R Panagoda)

DEFENDANT: (Bilfinger) LEGAL REPRESENTATIVES: Mr B Hodgkinson of Senior Counsel, with Mrs W Thompson of counsel Deacons (Mr M Tooma)

DEFENDANT: (Bitupave) Mr L King of Senior Counsel Hunt & Hunt (Mr A Morrissey)

Inspector robert mayell v Bilfinger Berger Services - Roads Pty Limited (formerly known as Abi Road Maintenance Pty Limited)

Prosecution under 10(1) of the Occupational Health and Safety Act 2000

Inspector robert mayell v Bitupave Limited trading as Boral Asphalt NSW

Prosecution under section 10(1) of the Occupational Health and Safety Act 2000

1 Bilfinger Berger Services - Roads Pty Limited (formerly known as Abi Road Maintenance Pty Limited) and Bitupave Limited trading as Boral Asphalt NSW have each pleaded guilty to offences under s 10(1) of the Occupational Health and Safety Act 2000 (2000 Act). 2 The offences arose out of an incident which occurred on 13 October 2005 at the intersection of Airport Drive and Link Road at Mascot. At those premises road maintenance was being undertaken. Boral Asphalt contracted with Bilfinger to provide traffic management services with respect to control of traffic passing the site while Boral Asphalt performed repairs and maintenance works on the roads surface. Boral Asphalt assigned Ron Hayward to supervise the works being performed at the premises which included the traffic control services performed by Bilfinger under the contract. Prior to the commencement of work at the site Bilfinger submitted a traffic control plan to Boral Asphalt for its approval. A traffic control crew was assigned by Bilfinger to perform the work. Troy Whitehead, Eddy Barko, Garry Shearing and Ronald Charles Christian made up the crew. Mr Barko was employed as a traffic controller with duties that included placing signs and witches hats on the side of the road as well as general traffic control duties. Mr Christian was also employed as a traffic controller. His duties similarly included placing signs and witches hats on the side of the road and performing general traffic control duties. Mr Shearing was also employed as a traffic controller. He also drove a traffic control vehicle. Mr Whitehead was employed as a ganger/leading hand/team leader. His duties included assigning work and supervising the traffic controllers at the site. 3 On 13 October 2005 the work crew were performing night work. This involved asphalt patching and re-surfacing. Before the work commenced the slow lane of south bound traffic in Airport Drive was closed to traffic using witches hats and traffic control signs in accordance with Bilfinger's traffic control plan. The lane closure was approximately 500 metres long and work was to be conducted from the northern end to the southern end of south bound lanes. The speed limit in the area in which the traffic control works were being undertaken was 75 km/h and the work area was approximately 1.5 metres away from the operational road traffic. The road surface was made up of unbroken bitumen and there were no slip, trip or fall hazards present. Bilfinger utilised two trucks to transport traffic control signs, witches hats and other equipment. One truck which was driven by Mr Whitehead was a white Isuzu Dual Cab truck with registered number YVB 375. Visibility within the cab of this truck was restricted such that the driver could not see directly behind in the direction of travel when the truck was being reversed. In particular when the truck was reversed, visibility in the direction of travel was restricted by signage and barrier boards carried on the rear of the vehicle. 4 Bilfinger's system of work on the day for lane closures required witches hats and traffic control signs to be placed on the road in accordance with a site specific traffic control plan developed and approved by Boral Asphalt. Erich Gasser, an employee of Bilfinger, drew up this plan. It nominated the types of traffic control signs to be erected and their locations with respect to the premises together with the location and distribution of witches hats. After traffic control signs had been placed by the workers at the premises the workers were required to walk back to a machine known as a profiler and perform traffic control duties in the area in which the profiler was undertaking work. They were also to assist the profiler in any manoeuvres it might have to perform. 5 The traffic control plan formulated by Bilfinger and approved by Boral Asphalt with respect to the premises made no provision for the interaction of vehicles, mobile plant or pedestrian movements at the premises. In particular the plan did not provide any vehicle movement procedures for vehicles or mobile plant associated with the works, to control the movement of the vehicles or plant within the premises. In addition Bilfinger did not provide any safe work method statements with respect to the management of vehicles, mobile plant or pedestrian movements at the premises including the reversing of those vehicles or plant. Specifically no safe work procedure was devised with respect to the reversing of the truck driven on the day by Mr Whitehead. 6 Before work commenced at the premises on 13 October 2005 Messrs Whitehead and Hayward discussed Bilfinger's specific traffic control plan. Later during a "pre-start" toolbox meeting, Mr Whitehead went over the plan with Messrs Barko and Christian. 7 When work commenced Mr Whitehead drove the truck, registration number YVB 375, from Link Road onto Airport Drive. Mr Shearing drove the other truck. Traffic control signs were then set up at Airport Drive. Messrs Barko and Christian met with Mr Hayward to discuss the closure of the breakdown and slow lanes on Airport Drive approaching Link Road. Following the discussion Messrs Barko and Christian commenced the closure of both lanes by putting an arrow board and witches hats on the road. These activities completed the first stage of Bilfinger's traffic control plan, after which the Boral Asphalt crew could come onto the premises. 8 Mr Hayward instructed Chris Hillier to drive his bobcat onto the premises. The bobcat was unable however to drive past Mr Whitehead's truck. While waiting for Mr Whitehead, Mr Hillier saw Mr Christian standing near the truck on the grass verge. Mr Whitehead arrived at the driver's door of the truck and signalled Mr Hillier to wait. Immediately beforehand, Mr Whitehead directed Messrs Barko and Christian to assist the profiler, which was a few hundred metres away, with any manoeuvres it might have to perform. Mr Christian, a 69 year old diabetic, asked about his lunch box and was told that it was in the second truck. Messrs Barko and Christian then walked together towards the rear of Mr Whitehead's truck. Mr Barko paused there to get a traffic control bat. After retrieving the bat he walked back towards the profiler. He thought at the time that Mr Christian had gone on ahead. Mr Whitehead reversed the truck at the same time checking his side mirror. He saw Mr Barko at a distance of about 150 metres behind the truck. Mr Whitehead was unable to see directly behind the truck because his vision was restricted. After reversing the truck for some 50 meters Mr Whitehead felt it lift. He heard someone yell "stop" and immediately complied. Mr HillIer, sitting in the stationary bobcat said he saw the truck bounce. He also saw a hard hat and a radio on the road at the front of the truck. Mr Barko, walking towards the profiler, heard a cry from behind him. Shortly after, Mr Christian's body was discovered underneath the truck. The risk of injury: foreseeability and probable consequences 9 To reverse a truck with no, or limited, rear vision in a busy construction site carries with it a risk to the safety of personnel at the site which is both obvious, foreseeable and potentially of the utmost seriousness in terms of the likely or probable consequences. The consequences were of course tragically realised in the needless death of Mr Christian. 10 The agreed statements of facts tendered against both defendants also reveal that the risks to safety could have been avoided by the implementation of a number of relatively straightforward measures. 11 No risk assessment for example appeared to have been carried out by either defendant with regard to moving vehicles with restricted rear vision, at the construction site. Had one been done for the site, the truck being driven by Mr Whitehead, with its attendant problems associated with its restrictions on visibility would have been identified as an obvious risk to safety. Appropriate safety measures could then have been implemented to avert the risk. A worker acting as a "spotter" could have been assigned to assist the truck drivers when reversing their vehicles at the road maintenance site. Boral Asphalt had in place at the time of the incident a procedure whereby a spotter was required for reversing tippers when they were required to reverse towards a paver to deliver asphalt. On the day of the incident however it had no specific procedure in place requiring the use of spotters by sub-contractors. Systems of work in place prior to incident 12 Bilfinger at the time of the incident had an Integrated Management Plan which acknowledged the risk to its employees associated with moving vehicles within the confines of a work site. In particular the Plan recognised the risk of being struck by moving vehicles at a work site. The Plan also required that the risks associated with vehicle movements within the confines of a work site be assessed although there was no evidence that Bilfinger had undertaken any risk assessment, whether generic or site-specific. Bilfinger's traffic control plan, to which I have earlier made reference, made no provision for the interaction of moving vehicles, plant or pedestrians at the site, nor did it provide for any vehicle movement procedures or moving vehicles or mobile plant, such as procedures for the control of vehicles or plant, when reversing. 13 At the time of the incident Boral Asphalt was in the process of developing a system for reversing vehicles. It already had in place specific procedures for dealing with the interaction of people and machinery involved with asphalt-laying plant and equipment. It had also conducted a number of trials with regard to revising procedures which included reversing cameras and ultrasonic object detection systems. Following the death of Mr Christian Boral Asphalt "fast tracked" the roll-out of reversing cameras which were being trialled on a number of work sites. Over 80 cameras have now been fitted to those Boral Asphalt vehicles and moving plant with restricted vision, and subcontractors and owner-drivers have been encouraged by it to also fit their vehicles with reversing cameras, particularly those vehicles where vision is restricted when reversing. Available remedial measures prior to incident 14 Prior to the incident the WorkCover Code of Practice "Moving Plant on Construction Sites" was in force. Both defendants were aware of this Code of Practice. It is useful to set out some of the more salient features of the Code in order to demonstrate its obvious relevance to the worksite on the day of the incident in terms of the safety measures which could have and should have been implemented by both defendants. 15 The Code of Practice applied to the movement of mobile plant and road vehicles at the work site, including the movement of two road carhaul trucks. Its stated purpose was to provide, "practical guidance to prevent injury to people where moving plant is used at construction sites". "Construction work" was defined as including civil engineering works such as the repair and maintenance of roads and highways. The risks of injury to pedestrians and workers within the construction sites, associated with reversing plant and vehicles were expressly referred to in a number of places in the Code. Chapter 3 for example contained information with regard to the association between reversing plant on construction sites and fatalities. Controls were recommended for the operation of moving plant in the forward direction and the use of a spotter was identified in the context of ensuring that persons were not placed at risk before reversing. Section 3.2 of the Chapter stated in part:

Vehicle movement procedures should be developed based on the risk assessment and should be updated each time the conditions on the site change in a way that may affect the health and safety of persons at the workplace. It should also include an assessment of the visibility of plant and traffic from all areas of the work site.

The use of specific measures to eliminate or control identified risks should be done on the basis of the risk assessment. In particular, consider the following: · planning the direction that plant moves, so the visibility of operators is not restricted; · using spotters/safety observers to control traffic movement. 16 The foregoing matters attest to the objective seriousness of the charges against both defendants. For reasons earlier stated the risk to safety associated with reversing mobile plant and vehicles with restricted visibility was obvious. The risk, moreover, was well-known in the industry within which the defendants operated. It was specifically adverted to in the Code of Practice, a document of which both defendants were aware. 17 Nevertheless the Court is required to take into account as mitigating the otherwise seriousness of the offences the safe systems of work which both defendants had either in force or were in the process of implementing, at the site at the time of the incident. Deterrence

18 It was not in contention between the parties that the principle of general deterrence falls for application with regard to both defendants. Both defendants operated at the time of the incident in the road construction industry. Work within that industry carries with it the potential for exposure of persons to serious risks to their safety by reason of their proximity to traffic and moving plant, if adequate safety controls are not put in place at the worksite. It is of critical importance therefore for employees and contractors to have in place adequate traffic safety controls. Failure to do this may result in prosecution and severe penalties. 19 Specific deterrence is also applicable to both defendants. Both defendants remain active in the road construction industry and employ, or sub-contract, large workforces, to perform the work. 20 It was conceded by the prosecution in relation to Bilfinger that it has taken extensive steps to address shortcomings in its occupational heath and safety systems. The affidavit of David Lawrence Tucker (DL Tucker) sworn on 25 June 2008 and tendered in Bilfinger's sentence proceedings attests to a number of significant measures taken after the incident aimed at improving its safety systems and thereby minimising or reducing risks to the safety of personnel working in the industry. These measures will be discussed in more detail shortly in these sentencing reasons. The prosecution made similar concessions in relation to Boral Asphalt. Measures aimed at improving safety at the worksite were also improved by Boral Asphalt after the incident. These measures have been set out in the affidavit of Douglas Martin Tucker (DM Tucker) sworn on 27 June, 2008 and tendered in Boral Asphalt's sentence proceedings. The measures set out in that affidavit will also be referred to, shortly, in more detail. For present purposes the Court considers that the extensive measures put in place by both defendants after the incident indicate that there is less likelihood of either defendant re-offending under occupational health and safety legislation. It should be emphasised however that specific deterrence remains an important element in the sentencing of both defendants because of their respective ongoing involvements in the road construction and maintenance industry. Post-accident remedial measures 21 Following the incident Bilfinger immediately conducted a review of its safety systems and on 3 November 2005 it introduced a new safety, quality and environment policy. Specific changes have been made by Bilfinger to its system with respect to the control of plant and vehicle movements at its worksites, with a number of new procedures introduced as a result of ongoing safety reviews. Other measures introduced include a job safety analysis for job location for its road works sites, aimed at traffic control, and a procedure for reversing vehicles with restricted rear vision. These two latter measures were introduced on 10 January 2006. Both procedures make specific reference to reversing vehicles as a "potential risk" or a "potential hazard" to which consideration must be given when assessing risks. On 19 June 2006 the reversing vehicles procedure required a spotter to be present while reversing a vehicle. Where a spotter is not present the procedure requires that vehicles may only reverse a distance of 10 metres before the driver exits the vehicle to check or ensure that there is no one standing or working in the vicinity of the vehicle. The equipping of vehicles with reversing cameras was also implemented. Prior to the incident all road trucks had been fitted with audible reversing alarms. The truck involved in the incident had also been equipped with a reversing alarm. Following the incident those alarms were checked to ensure that they were in proper working order. The reversing alarm on the truck involved in the incident was found to be in working condition. In addition, all employees of Bilfinger were re-inducted in or about February 2006. 22 The post-incident safety measures implemented by Boral Asphalt have already been referred to in some detail in these sentencing reasons. They include the "fast-tracking" of its roll out of reversing cameras which at the time of the incident was being trialled at a number of worksites. Boral Asphalt now has over 80 cameras fitted to its fleet of vehicles which have restricted vision. Boral Asphalt is also encouraging its sub-contractors and owner-drivers to fit their vehicles with reversing cameras particularly to those vehicles with restricted vision when reversing. Boral Asphalt has also upgraded its occupational health and safety procedures with respect to traffic movements at its sites, in particular those procedures governing reversing vehicles. Following the information obtained from the reversing camera and sensor trucks trials conducted by Boral Asphalt, the information was sent by it to WorkCover. WorkCover later used that information to develop a Safety Alert entitled "Moving Plant on Construction Sites". Efforts made on behalf of Boral Asphalt culminated in the safety committee of the Australian Asphalt Pavement Association as well as various companies operating in the asphalt paving industry, endorsing the requirement to place reversing cameras in all restricted rear vision vehicles. 23 The safety measures pursued and implemented by both defendants after the incident are both comprehensive and effective. They attest to a strong and genuine commitment on the part of both defendants to improve safety at the worksite after the incident and thereby minimise any attendant risks to the safety to personnel present at those sites. The extent and effectiveness of the measures and the commitment to safety shown by each defendant following the incident will be taken into account in their favour in mitigation of penalty. Respective Roles

24 Boral Asphalt was the head contractor at the worksite at the time of the incident and in a position to exercise control over both its employees and contractors at the site. Illustrative of its authority to exercise control over matters of safety at the site was the fact that it had its own occupational health and safety system procedures in place there. Although those procedures were directed primarily to Boral Asphalt's employees, they were also relevant to contractors who were working in close proximity to plant owned and operated by it. Boral Asphalt sought to advance a submission during the proceedings that its control over sub-contractors extended only to its contractual right to audit contractors. Contractual rights and obligations between parties do not, however, take precedence over a defendant's statutory obligations to ensure safety under the occupational health and safety legislation. Boral Asphalt also sought to gain some comfort from the prosecutor's written communication that no prosecution be commenced against it. The Court is, of course, not bound to take into account in its sentencing reasons the administrative opinion of the prosecutor. The prosecutor's reasons for the recommendation included information obtained during the course of the investigation. That information was that Boral Asphalt had in place prior to the accident two procedures aimed at reducing the risk to safety arising from reversing traffic. The procedures involved employing the use of observers to deal with the risk of reversing and overhead services, and minimising exposure to risk by ensuring vehicle clearances. These procedures have already been addressed in these sentencing reasons. Although the prosecution during oral hearing conceded that the procedures were in place at the time of the incident the evidence before the Court revealed that no observer, or "spotter", was present at the time the truck with its restricted rear vision reversed into Mr Christian.

25 At the time of the incident Boral Asphalt was in the process of implementing comprehensive safety procedures specifically tailored to the risks arising from reversing vehicles at its worksites. Those measures have been earlier outlined and need not be repeated here. In addition, as the evidence has disclosed, Boral Asphalt had in place at the time of the incident numerous procedures directed at guaranteeing safety, including procedures for dealing with the interaction of people and machinery involved with asphalt-laying plant and equipment. These measures also show that Boral Asphalt, as head contractor, had control of the worksite where the incident occurred. It had assigned Mr Hayward, its quality management representative, as site supervisor on the day of the incident. His role included traffic control services which were being undertaken by Boral Asphalt. Mr Hayward was present at the accident site instructing operations at around the time of the accident. 26 Bilfinger described its role, and that of Boral Asphalt's role at the accident site as a "cross-over", with Boral Asphalt providing supervision at the time of the incident at the site. The other "cross-over", according to Bilfinger was Boral Asphalt's capacity to retain to itself review systems, for example, over Bilfinger's traffic management system. Bilfinger at the same time acknowledged in its oral submissions that it was also incumbent upon it to have a control system set up in the work zone. 27 Under the contract to provide traffic management services entered into between the defendants, Bilfinger was required to ensure that its personnel adhered to Boral Asphalt's heath, safety and environment policies, Bilfinger was also requested to undertake an assessment of risks prior to the commencement of traffic control services at the site and inform Boral Asphalt of the results of that assessment. Bilfinger was also required to provide Boral Asphalt with a traffic control plan within seven working days prior to the commencement of work, or as agreed. Boral Asphalt prepared a draft traffic control plan which was shown to Mr Hayward the day before it commenced work at the site. Bilfinger was also to provide Boral Asphalt with its safe working procedures. These matters reveal the depth or responsibility that Bilfinger was obliged to exercise at least under the contract. 28 It was submitted on behalf of Boral Asphalt that its culpability with respect to the offence with which it is charged was low and that Bilfinger was "more to blame". I cannot agree. Boral Asphalt was principal contractor at the site with its attendant responsibilities to ensure safety at the site, and as the evidence disclosed, it exercised control at the site not only over the activities of its own employees but also over that of its sub-contractors. Bilfinger, on the other hand, did not concede that the defendants' respective culpabilities could be approached as broadly the same, or equal. Again, I do not agree. Bilfinger exercised direct and close control over the actions of the workers at the accident site including the accident victim, Mr Christian. Although Mr Christian was not an employee of Bilfinger, he was nevertheless part of Bilfinger's work team at the accident site on the day of the incident. When these factors are weighed together they facilitate the conclusion that the defendants' respective roles at the accident site on the day of the incident may be construed as broadly equal. Other subjective factors 29 Both defendants entered pleas of guilty at the first reasonable opportunity. The prosecution has got contended otherwise. I propose therefore to assess an appropriate discount of penalty for the utilitarian value of the pleas of guilty at 25 per cent. 30 As a separate consideration from the utilitarian value of the pleas the defendants are also entitled to leniency in recognition of the remorse shown by the pleas of guilty. The absence of prior convictions in the case of Bilfinger also entitles it to leniency normally entitled to an offender who is otherwise not adversely rewarded. 31 Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 an offender is only entitled to the benefit of a discount for remorse if evidence is provided of an acceptance of responsibility for its actions, and an acknowledgment of any injury, loss or damage caused. There was some discussion during the proceedings as to the application of the provision to a corporation, however, it is unnecessary for me to decide the point, because in my view both defendants have satisfied the requirements of the provision. 32 Boral Asphalt's post-incident safety measures, which have been earlier referred to, attest to its acceptance of responsibility for its actions as well as its acknowledgement of the fatal injury caused to Mr Christian. In his evidence Mr DM Tucker on behalf of Boral Asphalt said in reference to the safety procedures in place at the time of the incident: I attended the site that night and was deeply affected by the incident as was the organisation. I think, you know, we had already identified the initiative, had committed enormous resources to it, it was clear from the fatality that we needed to move quicker than we did. 33 Bilfinger also instituted a number of post-incident safety measures, earlier referred to, which attest to its acceptance of responsibility for its actions on the day of the offence. Managers of Bilfinger attended the site after being notified of the incident and commenced an investigation into the causes of the accident. It also counselled or arranged counselling for those employees who were present at the time. Messrs Whitehead and Shearing received counselling at St George hospital. Bilfinger also organised a wake for Mr Christian in Sydney attended by its employees and other workers. It also paid for Mr Christian's funeral which was held in New Zealand. A number of Bilfinger's managers attended the funeral. Bilfinger also paid for the family of Mr Christian (who reside in New Zealand) to fly to and from Sydney between 18 October 2005 and 21 November 2005. Mr Christian's wife was also assisted by Bilfinger with the removal of Mr Christian's furniture from his Sydney residence and in selling his car. 34 Both defendants also co-operated with WorkCover during its investigation of the incident, as conceded by the prosecution. It was also conceded by the prosecution that each defendant is a good corporate citizen. Bilfinger also supports a number of community initiatives every year including "Engineers without Borders - Australia", which is an organisation that works with disadvantaged communities to improve their quality of life through education and the implementation of sustainable engineering projects. Bilfinger also supports Water Aid to help provide access to safe water in developing countries. It also supports House with No Steps and the Warren Centre, which is an independent industry-linked institute committed to fostering excellence and innovation in advanced engineering throughout Australia. 35 Boral Asphalt has prior convictions and therefore faces a maximum penalty of $825,000. Bilfinger has no prior convictions and faces a maximum penalty of $550,000. Victim Impact Statement

36 During the proceedings the prosecution tendered against each defendant a victim impact statement made by Netta Christian, Mr Christian's wife. The statement was received by the Court on the limited basis, allowed under the relevant statutory provisions, which permits the Court to acknowledge the statement, but not take it into account as part of the material in respect of the sentences to be imposed. The statements reveal the devastating impact that Mr Christian's death has had on his wife. Mrs Christian was married to her husband for 47 years, although she knew him for 52 years. Following her husband's death, Mrs Christian has experienced terrible grief and loss with which she is still attempting to come to terms. The tragedy has taken a huge toll on both her physical and psychological health. The Court extends its deepest sympathies to Mrs Christian for the loss of her husband and sincerely hopes that the passage of time will help to ease some of the pain and suffering. Penalty 37 In determining penalties against each defendant, I have taken into account the objective seriousness of the offences, the maximum penalties, the factors in mitigation described above, including the pleas of guilty, the absence of prior convictions in the case of Bilfinger, Boral Asphalt's prior convictions, as well as the respective culpabilities of both defendants. These factors have been considered by reference to the CSPA in particular, 21A. Orders 38 In Matter No 1917 of 2007, the Court makes the following orders:

(i) the defendant, Bilfinger Berger Services - Roads Pty Limited formerly known as Abi Road Maintenance Pty Limited is convicted of the offence;

(ii) the defendant is fined $123,000 with a moiety to the prosecutor;

(iii) the defendant is to pay the costs of the prosecutor as agreed, or in the absence of agreement, as assessed. 39 In the Matter no 1918 of 2007, the Court makes the following orders:

(i) the defendant Bitupave Limited trading as Boral Asphalt NSW is convicted of the offence;

(ii) the defendant is fined $214,500 with a moiety to the prosecutor;

(iii) the defendant is to pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed.

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