Inspector Rowe v Eagle Eye Traffic Services Aust Pty Ltd

Inspector Rowe v Eagle Eye Traffic Services Aust Pty Ltd - [2010] NSWIRComm 31 - NSWIRComm 2010 case summary — Zoe

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RISK As a result of the failings Bradley John Morris was at risk of being struck by plant and/or vehicles. 6 There was one Agreed Statement of Facts relied upon by all parties. 7 Mr D B O'Neil of counsel appeared for the prosecution. Mr O'Neil relied upon two tender bundles, including Formal Instrument of Agreement between the Roads and Traffic Authority of New South Wales and Nace Civil Engineering, dated 19 July 2002, a Letter from Nace Civil Engineering to WorkCover confirming the contract price between Nace Civil Engineering and Borthwick & Pengilly Pty Ltd dated 14 November 2006, a Roads and Traffic Authority of New South Wales Traffic Control at Work Sites Manual dated April 2006 (in particular see parts 7.1, 7.3, 7.4, 9.26 and 9.62), a Code of Practice, "Moving Plant on Construction Sites", dated 2004, a Nace Civil Engineering Pty Limited Occupational Health Safety Environment and Rehabilitation Manual Part 5 dated September 1999, Nace Civil Engineering Pty Limited Safe Work Procedure - Truck Spotting Operation dated September 1999. a Borthwick & Pengilly Safe Work Plan (Asphalt) dated April 2005, a Nace Civil Engineering Pty Ltd Job Safety Analysis, Jedda Road Prestons dated January 2002, Eagle Eye Traffic Control Plans A1, A2, A and B dated 26 April 2005, Borthwick & Pengilly Asphalt Pty Ltd Worksite Risk Assessment and Probability Risk Score Calculator dated 2 February 2006, 11 Photographs taken by Derek Pryor on 3 February 2006, a hand drawn diagram of incident site by Albert Viera, undated, a WorkCover NSW Factual Inspection Report of Inspector Derek Pryor dated 29 May 2006, an Eagle Eye Traffic Services Pty Ltd Near Hit Register dated 2 January 2006, a WorkCover NSW Prohibition Notice No. 147454 issued upon Borthwick & Pengilly Asphalts Pty Limited on 3 February 2006, a WorkCover NSW Safety Alert titled "Moving Plant on Construction Site", undated, and Boral Asphalt (NSW) Safety Initiative on reversing sensor and camera trial, undated, an Australian Standard AS 1742.3 - 2002 Manual of Uniform Traffic Control Devices, Part 3: Traffic Control Devices for Works on Roads, a Borthwick & Pengilly Asphalt Pty Ltd JSA Safe Work Method Statement revised 3 March 2009, Prior Convictions Statements of Nace Civil Engineering Pty Ltd, Eagle Eye Traffic Services Aust Pty Ltd and Borthwick & Pengilly Asphalts Pty Ltd dated 4 December 2009 and a Victim Impact Statement. 8 The defendant, Eagle Eye Traffic Services Aust Pty Ltd, was represented by Ms W G Thompson of counsel who relied upon an affidavit of Gary Poland sworn 7 December 2009, plus one binder of documents outlining the company's safe work system and procedures. 9 The defendant, Nace Civil Engineering Pty Ltd, was represented by Mr B D Hodgkinson SC with Mr G R Wilson of counsel, who relied upon an affidavit of Gregory Douglas White, sworn 4 December 2009, with some 10 folders of attachments specifically addressed to safe working. 10 The defendant, Borthwick & Pengilly Asphalts Pty Ltd, was represented by Mr J F Viney of counsel, who relied on the affidavit of Donald Borthwick, sworn 8 December 2009, and the affidavit of Dean Newman, Chartered Accountant, sworn 8 December 2009. The company also provided documentation related to safety at worksites. 11 A plea of guilty by each defendant was entered at the earliest opportunity. 12 The Agreed Statement of Facts in all three matters relevantly reads: 2. At all material times Nace Civil Engineering Pty Limited (ACN 065 010 291) ("Nace") was an incorporated entity with its registered office situated at 90 Jedda Road, Prestons in the State of New South Wales. 3. At all material times Borthwick & Pengilly Asphalts Pty Limited (ACN 054 599 389) ("Borthwick & Pengilly") was an incorporated entity with its registered office situated at 85 Shane Park Road, Shane's Park in the State of New South Wales. 4. At all material times Eagle Eye Traffic Services Aust. Pty Limited (ACN 113 397 934) ("Eagle Eye") was an incorporated entity with its registered office situated at De Santis CPA, 1 Cowper Street, Parramatta in the State of New South Wales. 5. Nace were civil engineering contractors who, at all relevant times, were part of a panel of contractors and were assigned work by the Roads and Traffic Authority NSW (RTA). The RTA had the capacity to approve and assign to external contractors work to be carried out on public roads within the State of New South Wales. 6. Borthwick & Pengilly were an asphalting company who also were on a panel entitling them to be assigned work on roads in New South Wales 7. Eagle Eye provided traffic control services. 8. At all material times the RTA contracted Nace to undertake road resurfacing works on Alford's Point Road, Alford's Point in the State of New South Wales ("the site") 9. At all material times Nace sub-contracted the road resurfacing works to Borthwick & Pengilly 10. At all material times Borthwick & Pengilly contracted Eagle Eye to design, implement and perform "night work" traffic control services on Alford's Point Road, Alford's Point in the State of New South Wales, with respect to control of public road traffic passing the site within which Borthwick & Pengilly was performing resurfacing works on the road surface 11. At all relevant times the RTA had in place a written manual for traffic control at sites dated September 2003. 12. The RTA required the manual to be used on all RTA road and bridge work sites. The manual contained a number of standard traffic control plans for work sites. Where a standard plan did not meet the needs of a particular site the manual provided procedures for the design of a new or site specific plan. At Section 1 the manual stated: "These procedures must be followed. Compliance with traffic control plans is to take precedence over operational expediency in all situations." 13. At all material times the RTA employed Ric Patterson (Project Services/Employee) and Anoop Khubchandani (Surveillance Officer/Supervisor). Messrs Patterson and Khubchandani were present on the site on 2-3 February 2006 and were present at the site on a regular basis. 14. Mr Khubchandani was responsible for reviewing the quality of the works and occupational health and safety at the site. Mr Khubchandani had the power to demand that safety matters be attended to and to dismiss non-compliant workers/entities from the site. 15. At all material times, Nace employed Antonus Akerboom (Project Manager). As principal contractor, Nace had responsibility to ensure that all sub-contractor's had safe work method statements and that these were implemented and adhered to on the worksite. 16. On 2-3 February 2006 Mr Akerboom was not present on the site. Employees of Nace had been present late into the night of 2 February 2006 conducting coring work but were not present at the time of the incident. 17. At all material times Borthwick & Pengilly employed Nathan John Williamson (Truck driver) Sean Patrick Williamson (Labourer) Ronald Andrew Lee (Roller Operator) and Daryl Edmond Hulm (Site Supervisor). 18. At all material times Mr Hulm's normal duties included assigning work to and supervising the labourers and drivers at the work site. On 2-3 February 2006, Mr Hulm was responsible for supervising the site, and he was present at the site at the time of the incident. 19. At all material times Eagle Eye employed Albert Viera (Ganger/Site Supervisor), the deceased, Bradley John Morris (Traffic Controller), a female employee, Huana Tiori (Traffic Controller and Red Ticket Holder), Martin Garvey (Traffic Controller) and Craig Billinge (Traffic Controller/Truck Driver). All these employees of Eagle Eye were present at the site on the evening of 2-3 February 2006. 20. At all material times Mr Viera's normal duties included assigning work to and supervising the traffic controllers at the work site and he was present at the site at the time of the incident. 21. At all material times Mr Morris was assigned to the performance of tasks in relation to traffic control work associated with the road resurfacing work being undertaken at the site. Mr Morris' normal duties included placing signs and "witches hats" on the side of the road and performing traffic control duties.

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The system of work prior to the incident 25. At no stage prior to the incident did any of the parties involved at the site develop a site safety plan for the movement of vehicles/mobile plant and workers within the site. 26. Eagle Eye had responsibility to provide a Traffic Control Plan for the site. Nace, Borthwick and the RTA had responsibility to approve the Traffic Control Plan provided by Eagle Eye. 27. The Traffic Control Plan provided by Eagle Eye with respect to the site was in relation to the management of public traffic and the interaction of that traffic with the entry and exit of worksite traffic. The Traffic Control Plan approved by Nace, Borthwick and the RTA made no provision with respect to vehicle/mobile plant or worker movements within the site. 28. The Traffic Control Plan did not provide any vehicle movement procedures, including but not limited to the reversing of any such vehicles and/or mobile plant. 29. There were no turning areas designated within the site so as to enable vehicles to turn to travel in a forward direction. 30. There was no safe system of communication in place at the site between the employees and supervisors of the RTA, Nace, Borthwick & Pengilly and Eagle Eye. As a result, employees and supervisors were unable to consistently and adequately inform each other of worker and vehicle/mobile plant movements within the site. 31. At the site, Eagle Eye employees communicated through a portable hand held two-way radio system. No other workers or supervisors at the site had their own two-way radio or access to Eagle Eye's two-way radio. 32. Albert Viera and Darryl Hulm communicated with each other verbally at the site. 33. "Day maker" lights were used at the site during night work. The day makers were provided by Borthwick & Pengilly and were placed and erected by Eagle Eye prior to work commencing. The placement and the number of the day makers provided was approved by the RTA prior to work commencing. On the night of the incident the positioning of the day makers meant that there was an area under the Brushwood Drive bridge and beyond in a southerly direction that was in darkness. 34. The reflective protective garment worn by Mr Morris (and others at the site) required light to reflect. The reflective wand carried by Mr Morris did not require an external source of light.

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The incident involving Mr Morris 35. Borthwick & Pengilly conducted a site specific risk assessment on the evening of 2 February 2006. The risk assessment bears signatures of persons on site including the deceased, Bradley Morris. The risk assessment identified traffic moving around the work site as a hazard but did not specifically identify vehicle/mobile plant movements within the site as a hazard. 36. The risk assessment also identified "Plant & Equipment" as a hazard and had as its control measures "movement buzzers and flashing beacons on machinery. PPE to be worn by all employers (sic). Regular maintenance checks to be carried out". 37. None of the parties had in place a site specific risk assessment which identified vehicle/mobile plant movements within the site as a hazard. 38. The two southbound lanes were closed off to traffic using witches hats and traffic control signs in accordance with Eagle Eye's traffic control plan. Work was scheduled between 20:00 hrs and 05:00 to minimise the disruption to traffic. 39. The speed limit applicable to Alfords Point Road in and about the area in which the subject works were being performed was 40 kilometres per hour and the work area was approximately 3.6 metres away from operational road traffic. The road surface was made of unbroken bitumen. The weather was described as clear and fine. 40. At about midnight, work on the site had come to a stop as the paver used by Borthwick & Pengilly had run out of hot mix and some of the workers on site had a meal break. 41. During this break, at approximately 00:20 am on 3 February 2006, Bradley Morris was instructed by his supervisor, Alberto Viera, to review the placement of cones (or witches' hats) being used for traffic management. At the time this request was made by Mr Viera he believed that all movement of vehicles and plant had stopped as the road surfacing machine had run out of asphalt mix and the crew had taken a meal break. 42. Mr Morris commenced walking away from Mr Viera to check the cones. He was wearing his reflective clothing and carrying his wand and a two way radio. 43. At approximately the same time, Darrel Hulm, supervisor with Borthwick & Pengilly, instructed brothers Sean Williamson and Nathan Williamson to reverse the Ford Twin Cab Utility truck registered NSW QSH-919 ("the spray truck") back to the top of the job in order to commence spraying the surface of a section of the road. 44. Mr Hulm spoke to Mr Viera and told him that lane two was going to be sprayed but did not tell him when the spray was to occur. Mr Viera did not at any stage tell Mr Hulm or anyone else from Borthwick & Pengilly that he had sent Bradley Morris down lane two to check the witches hats. 45. Nathan Williamson offered to give Ronald Lee a lift back up to his roller at the same time. Nathan Williamson, Sean Williamson and Ronald Lee all entered the Ford Twin Cab Utility truck. 46. Borthwick & Pengilly owned and provided for use on the site the Ford Twin Cab Utility truck, NSW registered number QSH 919. The truck was fitted with a cabin for crew, located behind the driver's cabin of the vehicle. The Truck was also fitted with an audible reversing alarm and an orange flashing light attached to the top of the drivers cabin. 47. The crew cabin restricted the driver's vision in the direction of travel when the vehicle was being operated in reverse in that the driver could only effectively use the side vision mirrors and not the rear view mirror resulting in a significant "blindspot". 48. At all material times, Mr Nathan Williamson was authorised by his employer, Borthwick & Pengilly to drive vehicle NSW registration number QSH 919. 49. The truck was reversing rather than travelling forward. No reversing camera was installed and no spotter was provided. 50. Nathan Williamson commenced to reverse the spray truck back to the area that required spraying. Neither he or his passengers knew that Bradley Morris had walked down the lane to check the cones. 51. After reversing approximately 70 metres, Nathan Williamson felt a bump. He stated that he thought he had hit a witches hat. Ronald Lee exited the truck and realised they had hit a person, later identified as Bradley Morris. Emergency Services were contacted and the rest of the worksite informed of the incident. 52. As a result of the Ford Twin Cab Utility truck striking him, Mr Morris received fatal injuries. 53. In terms of noise levels, there was no aircraft noise and the worksite was not busy around the time the incident occurred. However, at the time of the incident, plant was idling and public road traffic was passing by the site.

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Changes to systems of work after the incident 66. After the incident the RTA amended its procedures that apply to all contractors working on RTA controlled roads. The amended procedure required an internal traffic management plan to be provided and followed. The RTA procedure prior to amendment had the requirement for spotters to be present for reversing vehicles and for turning bays to be provided where appropriate. 67. Since the incident Eagle Eye has reviewed its occupational health and safety systems and with assistance from external consultants has made changes to its occupational health and safety systems. The system has specific requirements with respect to the control of plant and vehicle movements in and about sites at which Eagle Eye provides traffic control services. In particular, the system requires spotters to be provided with respect to all reversing plant and reversing vehicles, whether it is a public or private road. The defendant has instructed and trained its supervisors and staff that there should not be any reversing on a job site without a spotter. 68. Since the incident Nace has reviewed its occupational health and safety system with respect to the circumstances of this incident. A review of the WorkCover Code of Practice entitled "Moving Plant" was undertaken in addition to a review of the RTA Publication entitled "Traffic Control at WorkSites". Nace has since installed reversing cameras on spray trucks, semi-trailers and dump trucks and has ensured that the vehicles of sub-contractors engaged by Nace have reversing cameras installed. Nace has also implemented a policy of minimising reversing movements on site and the placement of safety observers or spotters for critical reversing operations of vehicles. 69. Since the incident Borthwick & Pengilly has made changes to its occupational health and safety system with respect to the control of plant and vehicle movements in and about sites. These changes include: · Fitting a rear view camera to the vehicle with a screen in the cabin for the driver · Installing an additional rear spot light so that when the vehicle reverses it provides additional lighting to the area immediately behind the vehicle · Avoiding reversing where possible · Using a spotter where it is not possible to avoid reversing. Relevant Principles 13 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) and 8(2) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23 and 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 14 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 15 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 16 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act, to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace, is a relevant consideration. Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . .

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Consideration 17 In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (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 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". . . 18 There was no internal communication on site between the parties. Within each employer team there was communication, for example. Eagle Eye employees had a two-way radio system and the other teams worked through internal verbal communication and signals. I am satisfied the site was generally well lit (although one defendant raised this issue) and all employees had the appropriate equipment for night work such as reflector vests, wands, etc. When Borthwick & Pengilly's employee reversed his spray truck (which truck works to cool down freshly laid asphalt) it struck Bradley Morris, an employee of Eagle Eye (the traffic control operator). 19 All three defendants failed to take steps to remove the risk presented by the movement of vehicles operated by each employer on site around the worksite. Representatives of each of the defendants had convened a meeting on 4 May 2005 to discuss all details of the works at the site. Each of the parties had a responsibility to identify the risks involved in the work at the site. No defendant at the original meeting identified the need for a safety plan in relation to vehicle/mobile plant and pedestrian movement within the site. It was this risk, which was not identified, and therefore no system was designed to meet the unidentified risk. As a result there was no safe working procedure in place to ensure safety with the movement of vehicles within the site. As a consequence, the employees on site were not properly trained and instructed and a fatality occurred. 20 The foreseeability of the risk is an element for consideration as to the objective seriousness of the risk. If the risk is foreseeable there is an extra level to the objective seriousness consideration. The risk of employees being injured by the movement of vehicles within the site was obvious. Further the risk had been documented. The WorkCover code of Practice "Moving Plant on Construction Sites" noted in the Introduction to Chapter 3: Working near moving plant can be a high risk activity. Particular care should be taken to ensure the safety of persons working at or near locations where plant is used. Systems of work must ensure that no persons are at risk when working near or with moving plant. Safe Work Method Statements can assist in ensuring the safety of workers when moving plant is in use.

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and at [77]: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. 23 In the Court's consideration of the application of an element of specific deterrence to penalty it is necessary to consider each defendant's circumstance. The defendant, Eagle Eye, was the employer of the deceased. Gary Poland, Managing Director of Eagle Eye, gave evidence. He established the business in March 2005 and generally employs up to 25 casual employees. He acknowledged his awareness of the RTA manual; he had ensured all employees had a traffic control ticket and OHS card; he had supervisors on site; and the corporation had its own traffic control plan. He recognised and properly acknowledged there was a failure to ensure there was designed a site plan for the movement of vehicles within the site. Since the incident he revealed the corporation has updated its system. It has installed reversing cameras on all its trucks and added for extra precaution external spot lights and reverse warning alarms onto each vehicle. Eagle Eye, I am satisfied, has directly addressed the risk revealed by this incident and I am satisfied it has made every effort to ensure safe working for its employees. However, it still operates on dangerous worksites directing traffic and on which sites there are multiple contractors. An element of specific deterrence is relevant to its penalty. 24 The defendant, Nace Civil Engineering, the contractor, places reliance on the affidavit of Gregory Douglas White, General Manager of the Kyprios Group of which Nace Civil Engineering forms a part. Nace Civil Engineering, in order to be appointed an RTA panel contractor, had to have all of its OHS procedures and plans approved by the RTA. It was then accredited by the RTA. When selecting its sub-contractors, it ensured they were also pre-qualified by the RTA. After the incident, Nace Civil Engineering also reviewed all its site safety systems. While the corporation now concentrates on civil engineering and general construction projects, the RTA work is still conducted by another company, State Asphalt Services Pty Ltd (SAS) within the Kyprios Group. All SAS trucks on an RTA site have had reversing cameras installed, as well as rear lights and beepers. It ensures all sub-contractors it hires have the same appliances on their vehicles. Nace now regulates, controls and minimises the reversing movements of vehicles on its worksites and this is necessary given it is still active on construction sites. There shall be a small element of specific deterrence to this defendant's penalty. 25 Donald Borthwick, a Director of Borthwick & Pengilly, also gave evidence. Both Mr Borthwick and Mr Pengilly had worked at the RTA for over 20 years. In December 1991 they set up their asphalt company. Since the incident the defendant has changed its method of communication on such worksites and now uses two-way radios for communication between their supervisors and other contractors. They have also placed a reversing camera on the back of all spray trucks and in the truck cabin there is a screen installed to allow the driver to observe what is behind him. The defendant has also erected larger spotlights on the back of their trucks which lights come on when the truck is reversing. The safe working methods now in place ensures no truck is reversed within a work site without a spotter (person) guiding the truck. The length that the spray truck reverses on any spray site is now to be as minimal as possible (where before trucks could reverse in excess of 400 metres). The movement of vehicles on its work site is addressed, however, in the updated Safe Work Plan/Asphalt and is adjusted to be particular to each worksite. The defendant, however, also continues doing RTA work. An element of specific deterrence is allowed in the consideration as to penalty. 26 As each defendant still operates performing road work for the RTA (Nace though through a different but related corporation), in the circumstances, I am satisfied, while there will be a small element of specific deterrence in penalty, each has taken appropriate steps to ensure safety. 27 As to general deterrence, there must be an element in each penalty to be determined. All the steps taken by each defendant after the incident were simple and straightforward and could have been taken prior to the incident. Roadwork is an inherently dangerous task and sites must be rigorously risk assessed. This did not occur on this site. Co-ordination must be a priority on sites with multi sub-contractors. I accept, in accordance with modern industrial practice, it may be a sensible industrial decision for an authority like the RTA to contract out the upgrade and maintenance of its roads to specialist sub-contractors with specific skills. Hence, on this site, we had the Planner, the Asphalter and the Road Traffic Controller. Such contracting out, however, must ensure there is a rigorous planning instruction and training of all employees brought onto a multi-disciplinary worksite. Job specifications must be clear and each defendant must ensure there is, on the worksite, full compliance with its safety obligations. In this circumstance, while each party could present safe work models and plans and there were site safety meetings, there was a failure to co-ordinate each sub-contractor's operation. That failure was a communication failure on site and, as a result, the Asphalter's truck caused the death of a Traffic Controller. 28 In this circumstance, the risk to safety became reality. The words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5), I find apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant…

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29 Each defendant asserts, in the circumstances of the incident and in the knowledge that no prosecutions have been entered against the RTA, there should be consideration as to the RTA's contribution to the risk. The failure to so prosecute gives rise to a "justifiable sense of grievance" which the defendants express and each asks the court to take this failure to prosecute the head contractor on site, who was supervising the works, into consideration. The RTA was the Principal in the contract with the defendant, Nace, to plan these works. The RTA had an ongoing involvement at the site including the presence of supervisors. The authorities dealing with the respective culpabilities of other responsible parties who have not been prosecuted were collected and summarised by Walton J, Vice-President, in Department of Mineral Resources (Chief Inspector McKenzie) v Berrima Coal Pty Limited & Anor (2001) 105 IR 348. In Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 103, Backman J set out extensive extracts from Berrima Coal and at [14] of her Honour's judgment said: The effect of these authorities as summarised by Walton J is that the culpability of a defendant may be assessed by reference to the roles and responsibilities of other parties who have not been prosecuted. This in turn may affect the penalty imposed on it. This does not mean however engaging in an enquiry which would require specific findings as to culpability to be made against the other parties. Those other parties are not before the Court and have not had an opportunity to place material before the Court. 30 As was said in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited And Another (No 2) (2000) 99 IR 163 at [34]: The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them. 31 The court reiterated what was said in WorkCover Authority of NSW (Inspector Farrell) v Schrader (2002) 112 IR 284 at [54]: However, where an operator continues to operate in circumstances that present an obvious and known risk to persons working at the site and which constitutes an offence under the Act, the culpability of the operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety of the site generally, or related responsibilities as to a particular operation at that workplace. and at [61]: The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: ... 32 The court does not accept the issue of "parity" arises as was submitted by a defendant at this stage in its consideration but "parity" may be relevant in its consideration as to the level of penalty. The Court, however, is of the view there was a contribution of the RTA to the risk at this worksite. All sub-contractors had to gain approval from the RTA. It had two supervisors on site. The site was an RTA site and it was an RTA task being performed. There was a contribution to the risk by the RTA who, aware of the risk. had stated in its policy that internal site movements were to be co-ordinated. 33 The court is persuaded, however, this was a serious breach of the Act reflected in each defendants' failure to risk assess the task and to provide a system of work when there was co-ordination between each party on site as to the movement of vehicles. 34 The defendants are entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the offence. In Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 (at 106), the Full Bench (Hungerford, Marks and Schmidt JJ) observed: We accept there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OHS Act . ...

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I accept the defendants each entered an early plea to the charge. 35 In accordance with the principles of R v Thomson; R v Houlton, I accept there is a utilitarian value to each defendant's early plea of guilty. The defendants argue there is no limit to the discount that the court may grant with respect to the utilitarian value of the plea (see the consideration of the High Court in Markarian v R). I allow in the circumstances a 25 per cent discount for the utilitarian value of each plea. 36 Each defendant co-operated with WorkCover Authority and expressed contrition for the breach. I accept each has further expressed, through its officers, remorse. Each defendant presents with a record of good industrial citizenship. Each defendant has undertaken steps to address the risks identified as a consequence of this terrible incident. 37 The defendant, Borthwick & Pengilly Asphalts, submits the court should exercise its discretion in the determination of penalty by considering its capacity to pay in accordance with the provisions of s 6 of the Fines Act 1996. The approach to be taken by the court in determining matters in the exercise of the consideration under s 6 of the Fines Act 1996 is relevant. As was stated in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 by Wright J, President (at 209): The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty. Otherwise it is inappropriate to consider the fact or amount of legal costs, consulting and other fees. In any event, it was not submitted that I should. I should, as submitted by counsel for the informant, consider not only the financial information included in the correspondence from the accountants, but also the defendant's asset position. Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. 38 It is, therefore, a question of weighing up the evidence relied upon in the circumstances. 39 Section 6 of the Fines Act 1996 is applied in relation to the sentencing of individuals and corporations under the Act. Section 6 of the Act states: 6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 40 In McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310, the Full Bench of the Commission highlighted the need for there to be cogent evidence about the financial circumstances of a defendant in order for the court to properly apply s 6 of the Fines Act. The Full Bench also usefully summarised the principles relating to the application of s 6 of the Fines Act: 24 We agree with and adopt the following principles which may be distilled for present purposes from the discussion of the authorities contained within the judgment in Inspector Mansell v Eleven Lighting Pty Ltd : 1. This court is obliged to take into account the means of a defendant to pay any penalty by virtue of s 6 of the Fines Act . 2. The imposition of a fine on a corporation may have different ramifications to the imposition of a fine on an individual where imprisonment or some other penalty may be available as an alternative sanction. That alternative is not available in the case of a corporation. 3. A defendant who wishes to rely on the provisions of s 6 to temper the amount of any monetary penalty bears the onus of putting such evidence in support as is appropriate before the court and bears the onus on the basis of the balance of probabilities of satisfying the court as to the truth of such evidence and its relevance to the fixing of penalty. 4. Whilst it is for a corporate defendant to fully disclose its financial state, it is for the prosecutor to check that information in order to assist the court in determining the propriety of taking that evidence into account in imposing a monetary penalty. It is inappropriate for the court to exercise an inquisitorial role in this regard.

[42]

25 In addition, we note the following principles which have been settled for the consideration of the financial situation of the defendant: 1. In the context of determining penalties in prosecutions for a breach of occupational health and safety legislation by a corporation, it may be appropriate, in some limited circumstances, for the Court to have regard to whether the defendant's corporate structure is little more than a means of distributing earnings arising from personal exertion or where the burden imposed by a fine will fall on one person or family, compared with a corporation which is functioning as "a company with assets of a substantial kind": see Haynes v CI&D Manufacturing (1995) 60 IR 455 at 457. However, it is now also clear that the fact that a corporation may represent the alter ego of a person or family and that any penalty imposed on the corporation will consequently have a financial impact on that person or family does not, of itself, warrant a reduction in penalty: WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Ltd trading as Old But New [2004] NSWIRComm 247 ; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 . 2. The financial position and the means of a defendant should be taken into account when determining penalty. It is well established that, notwithstanding such considerations, the penalty must ultimately reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309; Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435. 41 Mr Gary Poland opines not only as to the limited assets of Eagle Eye (vehicles), a company of which he and his wife are sole directors, but also the effect the Global Financial Crisis has had on the reduced number of road contracts his company has obtained. However, the company had a turnover in 2009 of $2.3 million and in 2008, a turnover of $3.3 million. It had in 2009, retained profits of $863,330. In such a circumstance there will be only minimal consideration under s 6 as to the appropriate penalty for this serious offence. 42 Mr Borthwick, for the defendant Borthwick & Pengilly, also opines as to the financial circumstance of the company and relies upon the affidavit of Dean Newman, accountant. His company paid $4000 to Eagle Eye, to assist in the funeral costs of the deceased. Other employees of the defendant company. who were in the truck at the time, were provided with counselling and the driver with alternate duties. Financial statements for the year 2008 were tendered. In 2007, the company had a turnover of $7.2 million and in 2008, $7.29 million. It holds $342,000 in assets and appears to own a considerable debt to the Taxation Department of $571,000. In such a circumstance, I am of the view there can be a small consideration under s 6 as to penalty. 43 Nace Civil Engineering does not rely upon a consideration under s 6 of the Fines Act. Mr Gregory White, General Manager, however, has placed before the Court a most comprehensive safe work system. Audits are conducted on each site by its safety manager. Reports go directly to the Board of Directors. Further, it has placed evidence before the Court of its fine industrial record and the community character of the corporation. It is a significant contributor not only to employment in the State, but especially to services to the handicapped. It is a fine corporate citizen. Nace no longer performs this type of work. However, the Group Director has revealed the RTA work is still performed by an associated company within the group. This circumstance will be given consideration. 44 The principle of parity is relevant in this consideration in the circumstances. The Court must weigh up the seriousness of the risk and the different circumstance of each defendant and also the contribution to the risk by the RTA. There must be equal justice between the parties. The parity principle was stated by Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 (at 301 - 303) as follows: … The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [12] . In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [13] . Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen [14] , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance" [15] . If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

At a glance

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Judgment (55 paragraphs)

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Cases Cited (25)

Cited By (4)