Inspector Vierow v LBJ Crane & Rigging Pty Ltd

SOLICITOR LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales SYDNEY.

JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

INSPECTOR MAURICE VIEROW v LBJ CRANE & RIGGING PTY LIMITED

Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT

1 In this matter Inspector Vierow, acting on behalf of the WorkCover Authority, has commenced proceedings against the defendant, LBJ Crane & Rigging Pty Limited, in relation to an alleged breach of s15(1) of the Occupational Health and Safety Act 1983 ('the Act'). The matter was first mentioned before me on 28 March 2002 when there was no appearance made for the defendant. It was then referred to the Registrar's list and returned to me and further mentioned on 20 May 2002 at which time Mr Stojanovic appeared for the defendant. At the Registrar's callover on 20 March 2002 Mr Stojanovic, then identified as a director of the defendant, appeared for the defendant and entered a plea of not guilty.

2 The matter was estimated to involve 28 witnesses and occupying approximately 7 days of court time. Dates for hearing were fixed as 4-7 November inclusive, 11 November and 10-11 March 2003.

3 On 30 October 2002 Coleman and Greig, solicitors for the defendant wrote to my Associate in the following terms:

We understand that this matter has been set down for hearing commencing on 4 November 2002. We have received instructions from LBJ Crane to advise it and to represent it at any hearing on sentence.

We are instructed that LBJ Crane wishes to maintain its plea of not guilty to the charge under s15 of the Occupational Health and Safety Act but that it will not appear at the hearing to defend the matter. However our client would seek to be heard on sentence.

We understand that the Commission can determine liability on an ex parte basis and that the Commission can direct that it will determine liability on the basis of the Prosecutor's brief of evidence. We refer to His Honour's decision in Inspector Sharpin v Enpro Engineering Pty Ltd [2002] NSWIRComm 211. Although obviously this is an issue for His Honour, we are instructed that our client wishes to proceed in this way. This appears to be a sensible approach as it avoids the calling of witnesses and will minimise costs.

If the Commission finds the offence proven our client wishes to adduce evidence and make submissions in mitigation on sentence. Our client would be represented at the sentence hearing and we have briefed Ms McDonald. She is unavailable on 4 November due to being part heard before Schmidt J. We would also seek an adjournment for the sentence hearing as we have received instructions at a relatively late stage and we will require some additional time to prepare an affidavit.

We have informed Ms Panagoda from the WorkCover Authority of our client's instructions and that our client has no objection to the Prosecutor's brief of evidence being tendered on an ex parte basis.

We apologise for the late notice of our client's instructions. We realise that this is an unusual procedure but we would seek to explain our client's position in detail before His Honour on 4 November 2002.

Should you wish to discuss this matter, please do not hesitate to contact the writer on 9895 9227.

Yours faithfully Coleman & Greig

4 Upon the matter being called for hearing on 4 November, Ms P Ryan of counsel appeared for the defendant in relation to the procedural matters raised by the correspondence set out above. Upon the court indicating that it was prepared to deal with the matter on the basis proposed in the correspondence, a procedure endorsed and adopted by Mr Skinner of counsel for the prosecutor, Ms Ryan sought, and was granted, leave to withdraw on the issue of liability.

5 This procedure conforms with the approach adopted in Inspector Sharpin v Enpro Engineering Pty Limited [2002] NSWIRComm 211. In that matter I said: The matter was before the President on 22 November 2000 for plea and directions, at which time the defendant was represented by a solicitor as agent for Lough and Wells, solicitors of Wollongong. The matter was then next before the Registrar on 1 February 2001 and again on 1 March 2001, the defendant on each occasion being represented by counsel. The matter was then allocated to me on 23 July 2001 for hearing. It was mentioned on 3 August 2001 and stood over by consent. It was next mentioned on 6 November 2001 when there was no appearance for the defendant; it was adjourned to be re-listed on application. It was then mentioned on 5 February 2002, on which occasion the defendant was represented by a solicitor. A plea of not guilty was entered and the matter was adjourned for hearing on 24 June 2002 to continue on the following two days as necessary. Upon the matter being called for hearing on 24 June, counsel appeared for the defendant for the purpose of seeking leave to withdraw as counsel and indicated that the defendant had been in administration but had recently been released therefrom carrying substantial debts. Leave to counsel to withdraw being granted, there was no appearance for the defendant.

In those circumstances, the prosecutor, for whom Ms P McDonald of counsel appeared, applied pursuant to s11 of the Supreme Court (Summary Jurisdiction) Act 1967 for the court to proceed in the absence of the defendant. Section 11(1) provides as follows: 11(1) If, upon the day at the time and place to which the hearing or further hearing of a charge has been adjourned, either or both of the parties does not, or do not, appear in person or by a counsel or attorney, the Judge then and there present may proceed with the hearing as if that party or those parties were present, and in a case where it is the prosecutor who does not so appear may dismiss the charge with or without costs.

Ms McDonald also submitted that the Commission should, pursuant to s162 of the Industrial Relations Act 1996, determine its own procedure for the purpose of that hearing. Accordingly, I determined to hear the matter in the absence of the defendant upon the basis of the affidavit of Inspector Sharpin, filed in support of the application, a statement of facts and the prosecution brief of evidence.

6 During the course of the argument in the present matter Mr Skinner referred to the provisions of s8 of the Supreme Court (Summary Jurisdiction) Act 1967 which are: Practice and procedure for taking and receiving evidence 8. Subject to this Act and the rules, the practice and procedure of the Court in relation to the taking and receiving of evidence at the trial of accused persons on indictment apply to the taking and receiving of evidence in proceedings in the summary jurisdiction of the Court.

7 It was submitted that the section did not impose any particular burden in the context of the present matter. It is predicated upon there being a contradictor.

8 Having regard to the provisions of s11 which authorises the court to proceed with the hearing "as if that party . . . were present . . .", it seems to me that s8 does not impose any requirement that evidence be received in the usual way when there is a plea of not guilty, an appearance on behalf of the defendant and a contest with respect to, at least, the admission of evidence. In the latter circumstance, it is, of course, possible for the defence to consent to or not oppose the admission of evidence which would not normally be admitted into evidence in the absence of the consent. An example is a statement, or proof, of evidence which a witness would give, in the ordinary case, orally.

9 Accordingly, it seems to me that the Supreme Court (Summary Jurisdiction) Act 1967 does not present any barrier to the court acting upon the basis consented to in this matter by the defendant, namely, the tender by the prosecutor of the prosecution's brief which includes evidence of a kind which would otherwise not be generally admissible.

10 Prior to dealing with the question of liability, it is necessary to resolve a question raised by the prosecutor to satisfy the court that the prosecution was commenced within the statutory limitation period imposed by s49(4) of the Act which provides: 49(4) If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be.

11 The charge in the matter alleges that the defendant being an employer failed to ensure the health, safety and welfare at work of all its employees and in particular, Rodney Michael Fox, an employee of the defendant, on 23 May 1998 at the defendant's place of work on the railway lines between Burwood and Strathfield Railway Stations just to the western side of the Wentworth Road overbridge. At about 7.35pm on 23 May 1998 Mr Fox sustained fatal injuries when struck by a Tangara passenger train travelling on the Down Main line between Burwood and Strathfield.

12 A coronial inquiry into the death of Mr Fox was conducted during August 2000 and the report was made on 14 August 2000. This prosecution was commenced on 14 January 2002, within the two-year limitation from the date of the report of the Coroner subject to the prosecution being supported relevantly by the report.

13 In Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 the Full Bench dealt generally with the effect of s49 and in particular subs(4). In relation to the concept of it appearing from the Coroner's Report that an offence had been committed against the Act, the Full Bench said at 291:

In the present case, we are satisfied that the construction of s49 urged by both Mr Gross and Mr Hendy is consistent with its clear and unambiguous terms and with the ordinary meaning of the language used therein. Specifically, the fundamental submission made by Mr Gee as to the use of the word "appears" in s49(4) as not meaning "reappears", so as to exclude a situation where the prosecutor has prior knowledge of the commission of an offence before the coroner's report or proceedings at the inquest, cannot stand. And that is all the more so, in our view, where subs(4) itself makes its provisions operative, as it says, "despite anything to the contrary" in s49. Put another way, something may appear from the coroner's report or inquest proceedings even though that same thing may earlier appear to the prosecutor as would otherwise enable proceedings to be instituted under subs(1). The fact something may reappear, to the extent that reappearance is contrary to something first or newly appearing, does not thereby exclude it from the appearance required by subs(4) to be from a coroner's report or inquest proceedings.

The ordinary meaning of the word "appear" supports this approach. The New Shorter Oxford English Dictionary (4th ed, 1993) defines it in relevant respects thus: "1. Come into view, as from concealment, or from a distance; become visible; become evident. 2. Be visible be displayed . . . 5. Be clear or evident to the understanding; be manifest . . . 6. Seem to the mind, be perceived as, be considered; . . ."

The word "reappear" is defined in that same dictionary as meaning "appear again . . . the action or an act of appearing again; a second or fresh appearance".

Thus, and contrary to Mr Gee's submission, even though something may reappear it nevertheless, still appears in the sense that it appears again. Applying that meaning, it matters not, it seems to us, for the purposes of s49(4), whether the thing which appears in fact does so by reappearing from earlier evidence and not for the first time from the coroner's report or inquest proceedings. Accordingly, we conclude as to the proper construction of s49 that subs(4) prevails over subs(1) in fixing the time within which proceedings for offences are to be instituted where a coroner's inquest is held if it appears from the coroner's report or proceedings at the inquest that an offence has been committed against the Occupational Health and Safety Act or the Regulations thereunder, notwithstanding that that appearance may be a reappearance that such an offence has been committed.

14 The Coroner's report in the present context, which was tendered in evidence on the limitation period point, included the following: It is matter of record that Mr Fox's death was one of a number of deaths involving rail staff or staff contracted to one of the three arms of the Rail Services, reported to the office of the State Coroner over a relatively short period of time. A common thread with some of these deaths is the safety aspect of work sites within the possessions where work is being undertaken by employees of the Rail Service organisations or contracted to the Rail Service organisations.

The family of Mr Fox have been in constant contact with Sgt. Astley of my Coronial Support Section, and with Mr Maurie Vierow, an experienced Investigator who investigated this death on behalf of Workcover. Whilst not strictly seeking an inquest, the family did express concerns about the nature of Rodney's death, and like many relatives in their situation, sought to have the matter examined in the hope of preventing a similar occurrence in the future.

With those thoughts in mind, this death appeared an appropriate vehicle to investigate safety procedures of possessions, were work is undertaken by rail staff. Unfortunately, I have found in the past that Police are limited in their investigative experience in relation to railway deaths, in part due to the fact that certain witnesses are advised not to supply statements to the investigating officer. There is no criticism here, as that is their right. In fact, as I understand it, Workcover is considering summary work place prosecutions. It certainly appears to me that offences may have been committed under the Occupational Health and Safety Act 1983 by the circumstances surrounding Mr. Fox's death on 23 May, 1998. I shall not take the matter of summary prosecutions further. That is not for the Coroner, though it is important to mention them in terms of Section 48(4) O.H &S Act 1983.

15 The Report also dealt extensively with the facts of the incident. Those facts have been amplified before me and will be dealt with on the issue of liability. However, I am satisfied, having regard to the terms of the report, that it appears therefrom that an offence has been committed against the Act. Accordingly, the proceedings have been commenced within the limitation period of two years provided by s49(4).

16 As to liability, the prosecution brief was tendered in evidence. A company search identifies the defendant and its directors and shareholders as including Ronald Stojanovic and Kim Marie Stojanovic of the same address. The affidavit of the prosecutor in support of the application for an order in this matter adverts to the circumstances of the accident causing the death of Mr Fox; the inquest into that death; the alleged facts concerning the defendant being a subcontractor which provided a mobile crane and a two-man crew and the circumstances of the work. The deponent asserted the defendant was an employer and that Mr Fox was an employee of the defendant. Mr Fox was the dogman for the mobile crane which was operated by a crane driver, Rod Wigzell, who made a statement to the New South Wales Police which was also in evidence. He said he was employed by LBJ Cranes and had been for the last five years on and off. For most of that time he had worked with Mr Fox as the dogman for the crane. He said he picked Mr Fox up on the way to work, on Saturday, 23 May 1998, as he always did. He said their job was to unload the stanchions from trolleys and put them where they were required for later use. They did this for the rest of the day from 10am until Mr Fox was hit by the train. It was otherwise demonstrated in evidence that this accident occurred at around 7.40pm.

17 Radovan Stojanovic was interviewed by the Police and in the course of which he said: I am by occupation a Crane Driver, Rigger. I also am the owner of L.B.J. Crane and Rigging P/L. Rodney FOX was employed by me as a dogman. He had been in my employ for a period of about 5 years. On a personal basis I have know (sic - known) Rod 33 years, we grew up together. On Saturday the 23 May 1998, Rod was going to work for me with one of my other employees Rod Wigzell. Their job for the day was at the railway lines between Burwood and Strathfield Railway Stations.

18 While Mr Stojanovic is referred to as Radovan in the Police interview and Ronald in the company search, I accept on the basis of his statement that the references are to the same person. I also accept, having regard to Mr Wigzell's evidence and Mr Stojanovic's reference to him as "one of my other employees" that his reference to Mr Fox as having been "employed by me as a dogman" was intended to mean employed by him through LBJ Crane & Rigging Pty Limited. This conclusion is confirmed by a record of superannuation contributions made by the defendant on behalf of Mr Fox. The record was filed, by leave, subsequent to the hearing on liability. It identifies "employer contributions" made by the defendant.

19 It appears from the evidence that Mr Stojanovic and the defendant entrusted the function or task of inducting the employees to the particular worksite to Railway Services Australia. That body is, I was informed, a co-defendant to be dealt with in separate proceedings. It is the defendant's failure to take any step in that regard which underpins the failures alleged against it in these proceedings. Mr Stojanovic's statement included the following: In regards to railway work, never in the time were we issued with any work method statements, in regards to any work being carried out. When arriving on site we are asked to sign on, and when we leave at the end of the day we are asked to sign off the site. During the course of the job we may be asked to go to another area, and we will have to leave the site and travel on the roadway, to another area of the job. When this happens we do not sign on again. When we are finished for the day, if the supervisor that signed you on cannot be found, you have to find someone else in authority to sign you out. You must sign his book. This is to show that you have left the job site and that your particular work has been completed.

I have worked on the railways as an employee some 20 years ago, as a construction worker, this was for a period of about 3 to 4 years. It is my opinion that the safety procedures in those days were better than today. I believe that lighting should be erected at night, however I have worked on occasions without lighting. It is a dangerous way to have to work, but as the construction workers we are not told anything, nor do we have any say in the way the job is carried out.

In all the time I have worked on the railway jobs I have never been shown a copy of a work method statement. I have never sat down with a group of workers and had the job explained to us as a group. I have only ever been told individually what lines are dead and what are live, this is also in relation to the overhead power lines. This is the only procedure that I have known since I worked on the railway lines with a crane.

I have never held a Track Safety Awareness Certificate. I personally have never been asked to do this course, and I did not even know that such a thing existed. To my knowledge Rod had never held this certificate.

I feel that there is a lack of supervisors on the jobs today. Not enough attention is given to awareness of the dangers that can arise. I believe that they should go back to the old system of detonators and Flagmen. At least there was someone covering your back.

20 In these circumstances, I am satisfied that the prosecutor has made out each of the elements of an offence under s15(1) of the Act. The prosecutor has, fairly, submitted that much may be able to be said on the defendant's behalf in mitigation of penalty. However, the essential features of the liability of the employer for the failure to ensure the health, safety and welfare of its employee, Mr Fox, in my view are satisfied beyond reasonable doubt.

21 The matter will be relisted in due course, at which time the defendant will have an opportunity to appear and be heard on outstanding issues, including penalty.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.