Inspector Woodington v Peter Austin

JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Friday 2 April 2004 Matter No IRC 6328 of 2002 INSPECTOR CLIVE WOODINGTON v PETER FRANCIS AUSTIN Prosecution pursuant to s 50(1) of the Occupational Health and Safety Act 1983

1 The defendant Peter Francis Austin has pleaded guilty to a breach of s 50 of the Occupation Health and Safety Act 1983 ("the Act") in proceedings instituted by the prosecutor Inspector Clive Woodington of the Workcover Authority of New South Wales. A statement of agreed facts became evidence in the proceedings and is in the following terms:

1. The Prosecutor is an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (NSW) and empowered under s 106 of the Occupational Health and Safety Act 2000 (NSW) to institute proceedings in this matter. In the alternative the prosecutor is an inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under s 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter. 2. At all material times PETER FRANCIS AUSTIN ("the defendant") was a director of Brentwood Services (NSW) Pty Limited ("Brentwood"), whose registered office was situated at Unit 33/7 Jersey Road, Artarmon in the State of New South Wales. Brentwood was placed into Liquidation on 12 July 2002. 3. At all material times Brentwood carried on the business of plant hire, in particular two long reach excavators and a large industrial and mining vacuum cleaner known as the Super Sucka. The Super Sucka included a silo which was used for the purpose of collecting material. This silo was attached to the Super Sucka by means of hydraulic arms. 4. At all material times the Super Sucka, including the silo, was located in Brentwood's premises at Balls Head Road Waverton. 5. The New South Wales Department of Public Works and Services ("DPWS") had been engaged by the Department of Sport and Recreation to act as Project Managers for the remediation of land at the Academy of Sport and Recreation Wakehurst Parkway Narrabeen ("the site"). The remediation was required for the removal of lead contaminants the result of lead shot contamination. 6. The DPWS provided to Bulkwaste Management Pty Limited (now but not then in Liquidation), trading as Hallinans ("Bulkwaste"), along with two other contractors, a Tender Document for contract 0000969. Bulkwaste's tender was accepted on 7 December 2000 and work commenced on the site on 8 December 2000. 7. On or about 5 March 2001 Brentwood was contracted by Bulkwaste to supply and operate the Super Sucka at the premises of the Academy of Sport & Recreation at Narrabeen, Sydney, for the purpose of decontamination of the topsoil. 8. For the purpose of transporting the Super Sucka from Waverton to Narrabeen, Brentwood, on or about 21 March 2001, proceeded to dismantle the Super Sucka by disconnecting the silo from the Super Sucka. This was necessitated by the fact that if the silo remained fixed to the main frame of the Super Sucka it would exceed the height limit of 4.6 metres imposed by the Roads and Traffic Authority when that organisation issued an oversize load permit to Brentwood. 9. Brentwood employed, on a casual basis, Robert Newman, Kenneth Robinson and Charles Mead (the deceased) for the purpose of disconnecting the silo from the main frame of the Super Sucka to prepare for the transportation of the Super Sucka to the site. A permanent employee, David McCheney, was also employed in the process. 10. On or about 21 March 2001 Brentwood dismantled the silo from the Super Sucka in the following manner: (a) A hole was drilled in a steel beam attached to the Super Sucka. (b) A large chain block of unknown history was obtained by the deceased from a ship moored at Waverton and attached to the hole that had been drilled in the steel beam. (c) The silo was lowered with its hydraulic rams to the fully closed position. (d) Timber packers were placed under the front and back of the silo. (e) The silo was disconnected from its operating arms. (f) An hydraulic jack was placed under the back of the silo to raise the silo in order to remove the timber packers. (g) The chain block was used to lower the silo onto the rear of a trailer so as to rest upon its own weight, next to the Super Sucka. 11. At some point during the disconnection procedure at Waverton, it was realised that the chain block system was not operating and some adjustments were made. 12. On or about 22 March 2003 (sic) the Super Sucka and silo were transported by road to the site at Narrabeen. 13. Employees of Brentwood were instructed to reconnect the silo to the Super Sucka at Narrabeen. 14. Employees engaged for this job were Charles Mead, Robert Newman, Kenneth Robinson and David McChesney. David McChesney was employed by Brentwood on a full-time basis. 15. Brentwood's employees commenced to reconnect the silo in the following manner: (a) The rear of the silo was raised by a hydraulic bottle jack and placed on a timber packer, which was to act as a pivot point to assist in elevating the silo. (b) The chain block of unknown history was suspended from the steel beam by means of three "D" shackles, which were placed through the hole that had been made in the beam. (c) The silo was slung via a hole located in the base of the silo, which is well below the silo's centre of gravity. (d) The employees commenced to operate the chain block for the purpose of tilting the silo and tilting it forward. (e) In attempting to tilt the silo, it rotated in a clockwise motion causing it to become unstable. (f) The silo, in shifting, rolled towards Charles Mead and struck him as he was trapped between the silo and the cabin of the Super Sucka. 16. The silo struck Charles Mead, resulting in him suffering fatal injuries. 17. The silo weighed approximately 2.7 tonne. 18. Peter Austin was in the vicinity and overseeing the reconnection of the silo to the Super Sucka at Narrabeen on 22 March 2001. 19. After it struck Charles Mead, the silo fell over the edge of the trailer and, turning 180o, landed upside down on the ground. 20. The employees of the Company attempted to tilt the silo from below its centre of gravity. This, combined with the silo's eccentricity and being out of alignment with its horizontal axis, contributed to the silo turning clockwise, causing it to become unstable. 21. The chain block, which was used to tilt the silo, failed to provide any effective breaking mechanism that, combined with other factors referred to herein, resulted in the silo falling to the ground. 22. The following further particulars are provided: (a) Brentwood failed to consult with the manufacturer of the silo and Super Sucka in relation to whether it was safe to dismantle and reconnect the silo and, if so, what means should be adopted towards this end. (b) Brentwood failed to obtain any safe working method statement or job safety analysis prior to the disconnection and reconnection of the silo. (c) Brentwood failed to ensure that the load, when tilted,, would be lifted from above its centre of gravity. (d) Brentwood failed to make any accurate assessment of the actual weight of the silo. (e) The chain block utilised in the job of disconnecting and reconnecting the silo had load bearing capacity that was less than the weight of the silo. (f) The chain block used for the raising was not in good working order when tested by David Ng. (g) Brentwood failed to ensure that the chain block was adequate for the task save that it had successfully been used to disconnect the silo. (h) Brentwood failed to provide any adequate restraint mechanism for the silo so as to ensure that it would not move. (i) Brentwood, in drilling a hole in the steel beam and in dismantling the silo from its arms, carried out modifications to the Super Sucka. (j) Brentwood did not provide any records of training to the head contractor at Narrabeen, contrary to the provisions of reg 162, of the Constructions Safety Act 1912. (k) The Defendant, a director of Brentwood, was an experienced mining and civil engineer. (l) As a result of Brentwood's actions its employees were exposed to risks to their health and safety. (m) As a result of the actions of Brentwood outlined herein, one of its employees, Charles Mead, suffered fatal injuries. 23. On or about 22 March 2001 the Inspector obtained the chain block and portable hydraulic jack used at the time of the incident. 24. On or about 23 March 2001 the chain block and portable hydraulic jack were taken to WorkCover Test Safe at Londonderry and given to David Ng, Head of the Mechanical Unit. 25. On or about 6 April 2003 inspection and testing of the chain block and portable hydraulic jack began at the Test Safe facility. 26. On or about 14 May 2001 Mr Ng published a full report of the findings. 27. The following estimates of the weight distribution of the silo have been calculated by Mr Ng based on weights, estimates of weights and dimensions provided by Mr Austin: (a) It has been estimated that the chain block has a mechanical advantage in the order of 25:1, it has also been estimated that the total weight lifted by the chain block to be approximately 1,651 kg. This would require an effort of approximately 67 kg to be applied on the working chain. (b) The silo had a total mass of approximately 2.7 tonne. (c) Wear plates are installed in the front top half of the silo. 21 @ 26 kg each, totalling 546 kg. (d) This mass is slightly counterweighted by metal arms welded to both sides of the silo at its opposing end with an estimated weight of approximately 99 kg. (e) This gave an approximated eccentric distribution of weight of 211 kg, making the silo top heavy whilst facing the machine cabin. (f) It has been estimated that a total weight of approximately 1,651 kg was to be tilted by the chain block. (g) The silo centre of gravity was calculated to be approximately 72 mm towards the wear plates. (h) The effort applied to tilting the silo would need to be approximately 67 kg. 28. The silo was tilted below its centre of gravity (the base of the silo). As the silo was raised a torque was generated causing the silo to rotate about a clockwise movement through its axis. 29. In attempting to tilt the silo the timber packer becomes a pivot point now located at the extreme rear edge of its periphery (the flange of the exhaust outlet) situated at the base of the silo. As these forces are applied its point of balance is shifted due to the clockwise torque, causing the silo to move forward in order to find its own equilibrium. This occurred due to the eccentric weight of the silo being positioned in approximately the top central location of the silo.

2 In addition to the agreed statement of facts there was tendered into evidence a factual inspection report, an affidavit of David Ng who relevantly was head of the mechanical unit operated by the WorkCover Authority of New South Wales and a series of photographs.

3 The manner in which the incident occurred may be appreciated from the material contained within the agreed statement of facts sufficiently for the purpose of these proceedings.

4 I should add that the defendant gave personal evidence which included reference to the equipment which was being utilised at the time of the accident and the circumstances in which the accident occurred. Relevantly the defendant said that the equipment had been dismantled and reassembled three times before the accident, that employees engaged in the operation on the day of the accident had had previous experience during the dismantling and reassembling process and that in any event he had closely supervised the manner in which the work was carried out. He had also liaised with the manufacturer of the equipment and discussed the methodology to be used in its dismantling and reassembly.

5 The defendant said that he had become closely associated with and friends with the deceased employee who was a ship's engineer by trade and who had showed him his qualification papers and trade certificates.

6 The defendant admitted, however, that on the day of the accident the methodology used was different because it was necessary to comply with RTA height restrictions whilst conveying the equipment from Waverton to the accident site. Nevertheless he said that he had prepared and coordinated the procedures for the operation.

7 Ultimately, whilst the defendant is able to offer explanations as to the reasons why the accident occurred, and as to why he thought that the manoeuvre could be carried out without risk, the defendant properly conceded that the work operation and the resulting incident constituted a serious breach of the Act by the company of which he was a Director.

8 The defendant gave evidence concerning the impact that the accident had on him personally and on his company. The defendant was on site when the accident occurred and said that he was devastated by it and remains devastated to this day. The accident had resulted in the termination of the company's business and had "turned my life upside down".

9 In fact, the defendant said that the equipment which he was using was unique and had a lot of potential in terms of removal of waste material on building sites and the like. The existing contract which his company had was lost following the accident, his cash flow dried up and the company became insolvent. He said that he was required to sell all of his own assets to pay debts and currently had no assets, living in rented accommodation and driving an old vehicle which had been given to him by his son.

10 The defendant is aged 62 and despite his engineering qualifications is unable to obtain work. He said that in 2003 he project managed a remediation job but that this finished on Christmas Eve and he has been unable to obtain any work since. He has submitted twelve job applications since that time without success.

11 The defendant currently suffers also from some health problems including depression.

12 The defendant had earlier pleaded guilty to a breach of s 16(1) of the Act by reason of his directorship of the same company, Brentwood Services (NSW) Pty Ltd. The incident which gave rise to those proceedings occurred on 15 February 2001 in connection with some excavation work carried out by the company. The incident on that occasion arose when a ladder which was being used by a contractor at the excavation site slipped, it not having been secured in any way and it not having been tied off. The Chief Industrial Magistrate imposed a fine of $3,000 which is the subject of an order for payment by instalments of $200 per month commencing on 26 March 2004.

13 The applicant supplemented his oral evidence concerning his financial situation by tendering bank statements. They showed that he had a current credit balance of approximately $1,500.

14 The defendant, through his counsel, sought that I apply s 6 of the Fines Act 1996 in considering the amount of any monetary penalty.

15 I was informed by the parties that the maximum monetary penalty is $55,000. There can be no doubt, as was conceded by the defendant, that the offence was a serious one. In assessing appropriate penalty I will take into account the need to ensure public deterrence, although I doubt whether this defendant will become involved in any activities in the future which would personally expose him to a breach of the provisions of the Act. Accordingly, the question of personal deterrence becomes marginal.

16 The defendant is entitled to the benefit of some mitigating circumstances. He pleaded guilty at the earliest possible opportunity and expressed remorse and contrition with respect to the incident. There is no suggestion that he did not cooperate fully with the WorkCover Authority in connection with its investigations of the matter. Furthermore, the evidence is such that I conclude that the applicant has suffered severe financial consequences as a result of the impact of the accident on the business operations of the company and that he has personal limited opportunities of further gainful employment or further entrepreneurial activities.

17 Without any consideration of the impact of the Fines Act 1996 I would impose a fine of $24,000, but apply a discount of one-third with respect to the mitigating factors to which I have already referred.

18 It is obvious that the defendant has neither the means nor the income to pay a fine of this magnitude, particularly as the prosecutor will also be entitled to a costs order. The prosecutor has assessed costs at $5,555, which the defendant has agreed are reasonable.

19 It is now necessary to consider the provisions of s 6 of the Fines Act and the application of that section to these proceedings. Section 6 is in the following terms: 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.

20 The application of s 6 of the Fines Act has been considered on a number of occasions by Judges of this court. I referred to a number of those decisions in Inspector Mansell v Eleven Lighting Pty Ltd [2002] NSWIRComm 339. In general terms s 6 of that Act has been applied by taking into account the means of the defendant to pay a penalty whilst having regard also to the need to impose an appropriate penalty so as to reflect the circumstances of the offence and so as to create a deterrent for others. Obviously, each case must be dealt with on its own merits.

21 There is no suggestion in any decided case that the quantum of any monetary penalty should be qualified by the ability of a defendant to make payment of a fine assessed by reference only to his or her means. In addition, the financial circumstances of a defendant may change, although given the age of the defendant and the evidence concerning his employment prospects, I do not assign any significant weight to this factor. Some of the cases consider the means of a defendant in the context of the ability to pay a fine imposed concurrently with a sentence of imprisonment, a factor which is obviously not relevant in the context of these proceedings.

22 Counsel were unable to assist me with any alternative approach to the imposition of a monetary penalty on this defendant. It seems that the awarding of bonds and the imposition of community service orders may be confined to those circumstances where a custodial sentence might be imposed, by reason of the provisions of the Crimes (Sentencing Procedures) Act 1999. I observe that the circumstances of the defendant in these proceedings are not unusual in the context of prosecutions brought under the occupational health and safety legislation. Here, the defendant is the subject of a prosecution because he was a director of a company which was in breach of the legislation. That company failed financially as a result of the circumstances which gave rise to the breach, and the defendant's personal assets were interwoven with the fate of the company. Accordingly, in these circumstances, the impecuniosity of this defendant is intimately involved with and related to the financial failure of the company. It seems from the evidence tendered to the court that in reality this defendant has no hope of meeting any financial penalty imposed which is greater than that of a token nature. I am not prepared, consistent with my understanding of the relevant principles, to impose a penalty which reflects in reality only the ability of the defendant to make payment. It is a pity in these circumstances, given the way in which this defendant comes before this court and by reason of his age and financial circumstances making it appear unlikely that he can pay any substantial monetary penalty, that some alternative sentencing means are not available to this court. I instance by way of ready example a community service order which hopefully would have greater beneficial communal effect than the imposition of a monetary penalty which the defendant has no hope of meeting. However, that is a matter for the legislature and not a matter for this court.

23 In all the circumstances, I am prepared to reduce the penalty of $16,000 which would otherwise be imposed on the defendant by a further $6,000, leaving a net penalty of $10,000. In addition the defendant will, of course, be liable to pay the costs of the prosecution assessed at $5,555. The prosecutor has sought a moiety of the penalty and the defendant has not objected to this.

ORDERS 1. The defendant is found guilty and convicted of the offence specified in the summons.

2. The defendant is fined the sum of $10,000, with a moiety to the WorkCover Authority of NSW.

3. The defendant is to pay the costs of the prosecutor of $5,555.

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