e) Prior convictions certificate
Defendant's Evidence
8 The defendant tendered two affidavits of David Keith Andrews, the Director of Engineering Services of the defendant, who was not required for cross-examination. Mr Andrews stated that he had been employed by the Council as its Director of Engineering Services since 20 January 1982, up until the creation of the defendant on 25 February 2004.
9 Mr Andrews attended the site of the accident 20 minutes after it occurred. He carried out investigations into the accident; assisted WorkCover in its investigations; ensured all WorkCover matters and requests were properly attended to; assisted Mr Goodwin and his family and contributed towards his rehabilitation and return to work.
10 Mr Andrews deposed that the defendant's "Safe Work Method Statement No. 20/Seals and Reseals - Version 2" dated 21 October 2003, required all staff to know the location of all plant on the worksite at all times. This statement was handed to each employee, including Mr Goodwin, by the Site Supervisor at a toolbox meeting on the morning of the work commencing. The employees were asked by the Site Supervisor to read the statement and ask questions if it was unclear or not understood. Under the heading "Safety Controls", the statement relevantly provided:
Know location of mobile plant at all times.
Know location of travelling public at all times.
Know location of staff at all times.
11 Mr Andrews stated that the Site Supervisor reinforced to Mr Goodwin the need to be more aware of moving vehicles within the worksite. He stated that due to the random nature of the manual sweeping task locations, and the necessity to carry out the tasks promptly, it was not practicable to provide physical barriers at each manual sweeping location within the worksite. All general traffic was excluded from the site. The Traffic Control Plan was fully implemented and the site signposted. Traffic controllers were operating at each end on the site.
12 Mr Andrews stated that the reversing truck was being operated in accordance with the Site Supervisor's direction. The defendant's staff, including the driver of the truck involved, were highly trained and experienced.
13 In respect of the safe systems of work for activities undertaken by the Council prior to the accident, Mr Andrew deposed the following matters were in place:
a. Copmanhurst Shire Council provided safe systems of work for its engineering activities as evidenced by its Safe Work Statements, Risk Assessments, Traffic Control Plans, and Start-up checks. Exhibited to his Affidavit was a bundle of these documents.
b. Safe Work Method Statements (SWMS) were continuously improved - Version 2 of SWMS # 20 Seals and Reseals was being used at the time of the accident.
c. Site Specific Risk Assessment Systems were developed by Council and were in place at the time of the accident.
d. Safety checks for Council and contract plant and equipment were in place on the day of the accident.
e. General Public (vehicles and pedestrians) were excluded from Worksites where bitumen sealing and resealing was undertaken.
f. A full suite of Traffic Control Plans were developed and in place at the time of the accident.
g. Council ensured all staff were well trained in their duties. Exhibited to his affidavit were copies of the schedules of staff training. Training included RTA Single Invitation Contract Induction, RTA Traffic Controller, Manual Handling, General Construction and OHS Induction training as well as "Green Card" and Plant Operator training.
h. Council ensured its own plant and equipment and hired plant and equipment was completely compliant with current safety standards and was "fit for purpose".
i. Council staff, including Mr Goodwin were highly skilled and competent.
14 The Site Supervisor in charge of the method of work on the day was very experienced in bitumen resealing work and had supervised this type of work for the Council since 1992.
15 Mr Andrews stated that the Council fully embraced the primary objective of the Act by having a culture at the time of the accident which was "that if work can't be done safely, then don't do it". This culture of safety was reinforced through the Staff's Personnel Performance Bonus System, which provided a maximum four per cent annual bonus on the basis of performance during the year. One of the characteristics of personal performance measured was safety. The Council had received a number of engineering excellence awards in relation to occupational health and safety.
16 As a result of the accident, the Council immediately reviewed its procedures in relation to its bitumen sealing and resealing activities. As a result of the review, the following changes to the Safe Work Method Statement were made in relation to reversing aggregate spreading trucks:
· One (1) cockerel spreader operator is to be assigned to each truck. No truck to reverse within worksite (between Traffic Controllers), without guidance from assigned spreader operator.
· Trucks to always drive forward where practicable.
· If deemed necessary from risk assessment, hand sweepers are to operate in pairs.
17 Mr Andrews has been a co-author of the Statewide Mutual's Best Practice Manual on Bitumen Resealing, which is now an industry standard so that best practice can be undertaken by all local government authorities.
18 Every possible assistance was given to the WorkCover Inspector by the defendant. Instructions were given, prior to the Inspector's arrival at 10.55 am on the date of the accident, that all staff were to remain on site, and that all plant and machinery and signs, were to remain in their current position to assist the investigation. The Inspector was provided with all paperwork. An improvement notice was issued on the afternoon of 17 November 2003 and the defendant undertook the review the following day at 6.30 am.
19 Mr Andrews deposed that the defendant had a well documented system of work that was fully complied with on the day of the accident. This included that Mr Goodwin was to be accompanied by a casual employee in the sweeping task. The two employees became temporarily separated by a distance of 90 metres and Mr Andrews believed that the accident may not have occurred if the two employees had remained together.
20 Following the accident, the Council undertook remedial action to its documentation and method of work. The Safe Work Method Statement - Seals and Reseals was reviewed by the Council's staff on the day following the accident and Version 3 introduced. The Council's staff were inducted into the new work methods and completed the 2003 Reseal Program using Version 3. The Risk Assessment form was remodelled using new Plant Start-up Checklists, new Traffic Control Record sheets, including Locations Form, and a new OH&S Quarry Checklist were introduced. Training has taken place and additional communication equipment for Truck Driver/Spreader Operators has been provided. All staff have completed OHS Refresher Training. The defendant has limited the type of work which was the subject of the accident on 17 November 2003 to being undertaken by day labour staff by having the work carried out by "full service" contractors, rather than "supply and spray" contractors. In addition, the defendant has employed two OH&S Professional staff - Compliance and General Duties to assist in developing OHS Policies and Procedures. It is currently completing OH&S Codes of Practice for all processes. The defendant has also adopted this course of action.
21 The defendant and its predecessor are local government authorities aimed at servicing their local communities and providing services to these communities. These services include: maintenance and construction of roads and bridges; garbage collection; water and sewerage services; airports; wharves and jetties; libraries; gallery; community health; rural fire services; State Emergency Service ("SES"); flood mitigation; coastal management; noxious weed control; stormwater management, economic development and tourism.
22 Mr Andrews stated the defendant had provided close support and financial assistance to Mr Goodwin's family immediately following the accident and for day to day travelling and accommodation expenses during Mr Goodwin's early hospitalisation. Mr Andrews visited Mr Goodwin whilst he was in Grafton Base Hospital, as did the Supervisor and other wages staff.
23 Further, the defendant has made every effort to provide Mr Goodwin with suitable and rewarding duties applicable as set by the Rehabilitation providor. Mr Goodwin returned to work and commenced suitable duties on 24 May 2004 at the rate of four hours per day on Monday, Wednesday and Friday which continued until July 2006. Since then, due to restrictions on his medical certificate, suitable duties have not been available. The defendant is actively continuing to seek suitable duties and is in regular communication with Mr Goodwin in this regard. He has been in receipt of worker's compensation payments since July 2006.
24 The defendant has encouraged Mr Goodwin to improve his education and skills to provide more employment opportunities with it. Counselling for all involved, or present at the accident site, was provided. The defendant accepted the additional income earned by Mr Goodwin whilst working for another employer in the months preceding the accident in the calculation of worker's compensation. These payments were made from the time of the accident, up until February 2005.
25 As at 17 November 2003, the Council had 36 permanent employees. The Council also engaged contractors from time to time to carry out specific works and to supplement Council's day labour staff resources. The work included maintenance and construction of roads and bridges; sewerage services; rural fire services; SES and stormwater management, regulatory control in relation to planning and building services.
26 At the present time, the defendant has 502 fulltime employees engaged in the activities described in [21] above.
Submissions by the Parties
27 Mr D O'Neil of counsel, who appeared for the prosecutor, submitted that the objective factors relevant to sentencing have been clearly indicated through the authorities. This included the maximum available penalty of $550,000; the need to general and specific deterrence; an analysis of the offending conduct; a determination as to the extent of the risk and its foreseeability, and an inquiry as to whether remedial steps were therefore available.
28 In assessing the objective factors, counsel submitted that it was necessary to synthesise the subjective factors and analyse the offending conduct. Referring to the evidence, Mr O'Neil submitted that there was clearly a "blind spot" in respect of the driver of the tip-up truck (see [11] of the agreed statement of facts).
29 It was submitted that the Work Safe Method Statement was insufficient as there was a lack of "spotters" or physical barriers in place to protect the employee. Mr O'Neil acknowledged that WorkCover accepted that there was not a need for both and approved a safe work method which used "spotters".
30 Counsel further submitted that there was no documented traffic control system for the immediate work area as distinct from the plan that was in existence in relation to the public. It followed that the traffic control system did not prevent workers from being exposed to risks from moving plant. Counsel submitted that the risk was actually foreseen as the Safe Work Method Statement referred to the risk of collision between plant and workers. Counsel's submission was that steps had been taken to minimise the risk but they were inadequate. This led counsel to submit that as the extent of the risk extended to causing extremely serious injuries to Mr Goodwin, this results in this matter being a serious one.
31 Although Mr O'Neil acknowledged that the defendant was entitled to a discount for an early plea, he observed that a plea of guilty was not entered until after the defendant had sought to challenge whether it was a successor to the Council following the amalgamation. A plea of guilty was only entered to an amended application for order after it was determined that the defendant was a successor. In these circumstances, Mr O'Neil submitted this is not a matter where a full 25 per cent discount would be given. Counsel acknowledged it would not fall significantly short of that quantum of discount, but not necessarily towards the bottom of the range.
32 Mr O'Neil acknowledged that the defendant had co-operated with WorkCover and had clearly taken steps to improve workplace safety after the incident. Counsel acknowledged that the defendant has an unblemished record and has clearly developed appropriate steps in relation to injured workers.
33 The prosecutor sought an order for costs and a moiety of the penalty.
34 Mr A Moses of counsel, who appeared for the defendant, helpfully provided a written outline of submissions acknowledging that in accordance with the Crimes (Sentencing Procedure) Act 1999, the exercise of the Court's discretion is to be approached from a consideration of the nature and seriousness of the offence, together with aggravating and mitigating factors.
35 Counsel then identified a number of general principles for sentencing, referring in particular to the judgment of Kirby P in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699.
36 Mr Moses submitted that the penalty for breaches of the Act must reflect the objective seriousness of the offence. Relevant issues to be taken into account in determining the objective seriousness of the offence included whether the risk to health and safety was foreseeable and might have been remedied by simple measures: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at 646; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Another (2000) 95 IR 383 at 428; the extent to which the defendant had control over the primary causal factors of the risk; the extent of the defendant's contribution to the relevant detriment to safety and the existence of a settled system of work which would have prevented the accident if it would have been adhered to by relevant others.
37 Counsel acknowledged that general deterrence was relevant together with a consideration of the subjective factors.
38 Mr Moses submitted that whilst the existence of the risk was reasonably foreseeable, it was not obvious that Mr Goodwin would have been injured in the manner he was. Counsel further submitted that there was a system of work in place which was not obviously unsafe and there was a pre-existing commitment of the defendant to occupational health and safety. It followed, so counsel submitted, that there is no requirement for specific deterrence in this case. Counsel submitted that there were no circumstances in this case that aggravate the offence.
39 Turning to the subjective factors, Mr Moses submitted that the defendant had entered a plea of guilty to the charge in the amended application for order at the first available opportunity. Apart from the plea evidencing remorse and contrition and avoiding a costly hearing, it may also have avoided adducing evidence from Mr Goodwin. Counsel submitted that the utilitarian savings from the entry of an early plea warranted a discount of 25 per cent for that factor.
40 Counsel submitted the defendant's unreserved and genuine contrition for the events that occurred on 17 November 2003, and in particular, the injuries sustained by Mr Goodwin which remained a matter of profound regret. Counsel emphasised the support and assistance given to Mr Goodwin as detailed in the evidence of Mr Andrews.
41 Finally, Mr Moses submitted that the Court would have regard to the size of the defendant's undertaking, its numerous worksites and the inherent risks involved in the work performed by the defendant's employees. Counsel also emphasised the defendant's commitment to the objects of the Act as detailed in the evidence of Mr Andrews and the procedures put in place after the accident.
Consideration
42 As I observed in Inspector Patton v Shoalhaven City Council [2005] NSWIRComm 421, the sentencing principles to be applied in a matter such as this, were recently restated by the Full Bench in U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266 where the Full bench said at [11]: