Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd

APPELLANT Mr M J Joseph SC with Ms P E McDonald of counsel Instructed by: WorkCover Authority of New South Wales (Mr G Diggins)

RESPONDENT - CSR Limited Mr B D Hodgkinson SC with Mr L M Shume of counsel LEGAL REPRESENTATIVES: Solicitors Moray & Agnew (Mr T Plummer)

RESPONDENT - Mulgoa Quarries Pty Limited Mr D B O'Neil of counsel Solicitors Mark Mulock & Co (Mr M J Mulock)

JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President STAFF J Thursday, 18 November 2004

Matter No IRC 197 of 2004 INSPECTOR GREGORY MADDAFORD v CSR LIMITED Appeal against a decision of Justice Boland given on 19 December 2003 in Matter No IRC 2623 of 2002

Matter No IRC 198 of 2004 INSPECTOR GREGORY MADDAFORD v MULGOA QUARRIES PTY LTD Appeal against a decision of Justice Boland given on 19 December 2003 in Matter No IRC 2622 of 2002 JUDGMENT OF THE COURT [2004] NSWIRComm 337

1 Inspector Gregory Maddaford has appealed from the sentences imposed by Boland J on 19 December 2003 when his Honour dealt with the pleas of guilty by Mulgoa Quarries Pty Limited (the first respondent) and CSR Limited (the second respondent): Inspector Maddaford v Mulgoa Quarries and CSR Limited [2003] NSWIRComm 480. The appellant was the prosecutor in the proceedings at first instance.

The proceedings at first instance 2 The circumstances of the proceedings taken against the respondents were described in his Honour's judgment in this way: [1] Mulgoa Quarries Pty Limited ("the first defendant") employed William Besant as a truck driver responsible for the haulage of quarry products. On 12 May 2000 Mr Besant was delivering a load of raw material for use by CSR Limited ("the second defendant") in the manufacture of building materials at its Horsley Park Manufacturing Plant. Mr Besant drove his vehicle onto the weighbridge owned and operated by the second defendant at the entrance to its Horsley Park plant in order to weigh his truck and cargo and cause a computer generated delivery docket to be produced. Mr Besant alighted from his prime mover and was either making his way to the weighbridge computer from the weighbridge or was at the weighbridge computer when he struck his head on the concrete pathway situated below and adjacent to the weighbridge and sustained fatal injuries.

3 In paras [2] to [7] of his Honour's judgment the statutory provisions under which the proceedings were taken, the charges against the respondents (who were the respective defendants), their pleas of guilty and the relevant parts of the agreed facts as to the respective respondents were set out in the following terms: [2] Inspector Gregory Maddaford ("the prosecutor") of the WorkCover Authority of New South Wales prosecuted the first defendant under s 15(1) of the Occupational Health and Safety Act 1983, which is in the following terms: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. [3] Inspector Maddaford prosecuted the second defendant pursuant to s 16(1) of the Act. Section 16(1) provides: 16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

[4] The charge against the first defendant alleged the defendant:

failed to ensure the health, safety and welfare at work of all its employees, and in particular William Besant, contrary to section 15(1) of the Occupational Health and Safety Act 1983.

(a) At all material times the defendant carried on the business of supplying and hauling quarry products.

(b) At all material times the defendant employed William Besant as a truck driver responsible for the haulage of quarry products.

(c) At all material times the defendant contracted with Monier PGH Holdings Limited, a wholly owned subsidiary of CSR Limited, to supply and deliver raw materials for use by CSR Limited in the manufacture of building materials at a Manufacturing Plant located on Old Wallgrove Road, Horsley Park in the State of New South Wales ("the Horsley Park Manufacturing Plant").

(d) At all material times CSR Limited owned and operated a 'GEC Avery' weighbridge ("the weighbridge') and associated computer ("the weighbridge computer") installed at the Horsley Park Manufacturing Plant.

(e) At all material times CSR Limited carried on the business of manufacturing building materials trading as 'PGH Bricks & Pavers' from the Horsley Park Manufacturing Plant and employed persons in the conduct of that business.

(f) At all material times drivers employed by the defendant transported raw materials to the Horsley Park Manufacturing Plant in accordance with the contract between the defendant and Monier PGH Holdings Limited.

(g) At all material times CSR Limited, in accordance with the contract between the defendant and Monier PGH Holdings Limited, required drivers employed by the defendant to weigh their vehicles and cargo upon the weighbridge and cause a computer generated delivery docket to be produced in the course of effecting the delivery of raw materials to the Horsley Park Manufacturing Plant.

(h) At all material times drivers employed by the defendant were required by CSR Limited to move between the weighbridge and weighbridge computer in order to cause a computer generated delivery docket to be produced.

(i) At all material times there was a risk to the health, safety and welfare at work of the defendants employees, and in particular William Besant. In particular, there was a risk of employees slipping and/or falling when gaining access to and egress from the weighbridge computer.

(j) At all material times the defendant failed to implement adequate measures to ensure employees did not use the steel beam and square steel supporting post fixed to the steel beam and concrete walkway as a means of access to and egress from the weighbridge computer.

[5] The charge against the second defendant alleged the defendant:

failed to ensure that persons not in its employment, and in particular William Besant, were not exposed to risks to their health and safety arising from the conduct of its undertaking, to wit, the operation of a 'GEC Avery' weighbridge and associated weighbridge computer, while they were at its place of work contrary to section 16(1) of the Occupational Health and Safety Act 1983.

a) At all material times Monier PGH Holdings Limited, a wholly owned subsidiary of the defendant, contracted with Mulgoa Quarries Pty Limited for the supply and delivery of raw materials for use by the defendant in the manufacture of building materials at a Manufacturing Plant located on Old Wallgrove Road, Horsley Park in the State of New South Wales ("the Horsley Park Manufacturing Plant").

b) At all material times the defendant owned and operated a 'GEC Avery' weighbridge ("the weighbridge") and associated computer ("the weighbridge computer") installed at the Horsley Park Manufacturing Plant.

c) At all material times the defendant carried on the business of manufacturing building materials trading as 'PGH Bricks & Pavers' from the Horsley Park Manufacturing Plant and employed persons in the conduct of that business.

d) At all material times Mulgoa Quarries Pty Limited employed William Besant as a truck driver responsible for the haulage of quarry products.

e) At all material times drivers employed by Mulgoa Quarries Pty Limited transported raw materials to the Horsley Park Manufacturing Plant in accordance with the contract between Monier PGH Holdings Limited and Mulgoa Quarries Pty Limited.

f) At all material times the defendant, in accordance with the contract between Monier PGH Holdings Limited and Mulgoa Quarries Pty Limited, required drivers in the employ of Mulgoa Quarries Pty Limited to weigh their vehicles and cargo upon the weighbridge and cause a computer generated delivery docket to be produced in the course of effecting the delivery of raw materials to the Horsley Park Manufacturing Plant.

g) At all material times drivers employed by Mulgoa Quarries Pty Limited were required to move between the weighbridge and weighbridge computer in order to cause a computer generated delivery docket to be produced.

h) At all material times persons not in the defendants employment, and in particular William Besant, were exposed to risks to their health and safety arising from the conduct of the defendants undertaking while they were at the defendants place of work. In particular, there was a risk of drivers slipping and/or falling when gaining access to and egress from the weighbridge computer.

i) At all material times the defendant failed to implement adequate measures to ensure drivers employed by Mulgoa Quarries Pty Limited did not use the steel beam and square steel supporting post fixed to the steel beam and concrete walkway as a means of access to and egress from the weighbridge computer.

[6] The first and second defendants pleaded guilty to the amended charges. Statements of agreed facts were tendered. It is unnecessary to refer to the whole of the statements. The agreed facts provided the following relevant information: 14 The weighbridge at the Horsley Park Manufacturing Plant was used to weigh vehicles and their cargo as they entered the Plant. The weighbridge was located within the Plant approximately 50 metres from the entrance. An inclined ramp provided vehicular access to the flat surface of the weighbridge. The flat surface of the weighbridge measured approximately 18 metres in length and 3.5 metres in width. Steel anti-crash barriers ("steel beams") measuring approximately 210 millimetres in width ran the length of the flat surface of the weighbridge on each side. A concrete walkway, extending the length of the weighbridge, was located adjacent and parallel to one side of the weighbridge. The weighbridge computer was located at a point approximately halfway along the length of the concrete walkway. The concrete walkway was at a level approximately 840 millimetres lower than the top of the adjacent steel beam. A square steel supporting post was fixed to the steel beam and concrete walkway in the vicinity of the weighbridge computer. A set of stairs were located at each end of the weighbridge and provided access to the concrete walkway below. The side of the weighbridge adjacent to the weighbridge computer was not provided with guardrailing or other means to prevent persons falling from the flat surface of the weighbridge or the steel beam to the concrete walkway below. The other side of the weighbridge, however, was provided with guardrailing. Slip-resistant tape was fixed to the steel beam adjacent to the concrete walkway and the square steel supporting post in the vicinity of the weighbridge computer.

15 The weighbridge computer was provided with an aluminum platform suspended above the ground and designed to facilitate drivers' use of the computer.

16 Immediately preceding the accident Besant was observed by Steven Langlands, also employed as a truck driver by Mulgoa Quarries Pty Limited, to cause his prime mover to ascend the inclined ramp leading to the flat surface of the weighbridge and stop the vehicle upon the flat surface of the weighbridge. Thereafter, Besant alighted from his vehicle and walked upon that 210 millimetre wide steel beam adjacent to the concrete walkway in the direction of the weighbridge computer. When Besant was at a point approximately 3 steps from the square steel supporting post fixed to the steel beam and concrete walkway Langlands attention was diverted away from Besant while Langlands attended to some paper work. When Langlands next returned his attention to Besant he observed him (Besant) to be lying motionless on the concrete walkway with blood coming from his head and left ear. There were no other witnesses to the events immediately leading to the injuries of Besant.

17 CSR Limited had operated the weighbridge at the Horsley Park Manufacturing Plant since approximately 1995 and the defendant had supplied and delivered materials to that Plant from some time in 1996. The side of the weighbridge adjacent to the weighbridge computer had at no time been provided with guardrailing or other means to prevent persons falling from the flat surface of the weighbridge or the steel beam to the concrete walkway below. Approximately 4 years prior to the date of the incident slip-resistant paint was applied to the steel beam as a result of complaints made by drivers as to the steel beam being slippery when wet. Prior to May 2000, there is no indication of any prior incident involving any driver slipping off the steel beam. In 1995, there was a slip on the weighbridge. In late April 2000 Besant made a similar complaint regarding the steel beam and, as a result, as at the date of the accident the slip-resistant paint had been replaced by slip-resistant tape affixed to both the top of the steel beam and the top of the square steel supporting post. Besant and Dominic Gauci from CSR both reported this to Ian John Forrest, the Defendant's allocator supervisor. In addition, the drivers indicated to Forrest that they were reasonably happy with the slip resistant tape which had been affixed to the top of the steel beam.

19 Drivers, including Besant, devised and adopted a practice whereby they alighted from their vehicle, walked along the 210 millimetre wide steel beam that ran parallel and adjacent to the concrete walkway, stepped down from the steel beam onto the square steel supporting post and then either stepped down from the square steel supporting post to the concrete walkway before stepping up and onto the aluminum platform attached to the weighbridge computer or stepped directly from the square steel supporting post to the aluminum platform attached to the weighbridge computer. Whilst stepping from the steel beam onto the square steel support and the aluminium platform they could hold onto the surround of the weighbridge computer. The same or similar path was taken when returning from the weighbridge computer to the vehicle. The practice provided the most direct means of access to the weighbridge computer from the cabin of a vehicle parked on the weighbridge and was the procedure implemented by Besant as at the date of the incident.

20 As at the date of the incident Howard Hill was employed by the defendant as the Transport Manager. Three years prior to the date of the incident Hill was otherwise employed. In the course of that other employment Hill was responsible for the provision of driver training. At that time Hill provided driver training to persons including drivers then in the employ of the defendant. The content of that training, however, did not specifically address work activities associated with weighbridges. Besant himself had provided instruction in the operation of the weighbridge computer, in so far as causing the production of a computer generated delivery docket was concerned, to less experienced drivers. However, no instruction was provided to new drivers regarding appropriate means of gaining access to and egress from the weighbridge computer. Instead, less experienced drivers followed the method they observed implemented by the more experienced drivers such as Besant.

21 The weighbridge was not manned thereby giving rise to the need for drivers to alight from their vehicles parked on the weighbridge and gain access to the weighbridge computer.

Between 20 April and 26 April 2000 Besant informed Ian Forrest, employed by the defendant as a supervisor, that the steel beam was slippery when wet with dew early in the mornings.

22 In late April or early May 2000 both Besant and Forrest informed Dominic Gauci, employed by CSR Limited as a supervisor at the Horsley park plant, that the steel beam was slippery. When informed by Besant of the slip hazard, Gauci advised Besant not to walk on the steel beam and instructed Kirsty Green, employed by the CSR Limited at the Horsley Park plant as a dispatch clerk, to order some slip-resistant tape. Gauci's purpose in requiring the order of slip-resistant tape was that, in the event drivers did walk on the steel beam, the steel beam would not be as slippery. Green, within days, fixed slip-resistant tape along the steel beam and the square steel supporting post being the areas where she knew drivers to walk.

23 There was available alternate means by which drivers could reach the weighbridge computer from their vehicles stationed upon the weighbridge. Those means involved drivers alighting their vehicles, walking upon the flat surface of the weighbridge to either set of stairs located at each end of the weighbridge, descending those stairs to the concrete walkway situated below the weighbridge and walking along the walkway to the weighbridge computer. When a vehicle such as that driven by Besant on the date of the incident was parked centrally on the weighbridge there existed a clearance of approximately 540 millimetres between a vehicle and the steel beam in which a driver could manouvre (sic) along the flat surface of the weighbridge.

24 As at the date of the incident involving Besant CSR Limited operated numerous weighbridges at other plants that, unlike the weighbridge at the Horsley Park Manufacturing Plant, were positioned at ground level.

25 As at the date of the incident involving Besant CSR Limited also operated weighbridges at other plants that were positioned above ground level including a plant at Schofields. The weighbridge at Schofields differed from that at Horsley Park in that it was provided with platforms incorporating guardrailing mounted to its sides.

26 Subsequent to the accident the defendant caused the following remedial measures to be implemented: (a) CSR Limited devised an interim procedure whereby an employee of the CSR Limited, delegated the task of weighbridge operator, manned the weighbridge and operated the weighbridge computer alleviating the need for drivers to alight from their vehicles whilst on the weighbridge for that purpose. Consultation between the defendant and CSR Limited with regard to the interim procedure was undertaken before being approved and reduced to writing; and

(b) the defendant provided instruction and training in the devised procedure to employees.

30( sic ) On 15 May 2000 an autopsy was performed on the dead body of Besant at Westmead Hospital, Department of Forensic Medicine, by Dr Bogdan Hulewicz. In Dr Hulewicz' Forensic Medicine Final Report dated 16 June, 2000 he made the following comments: "Death was due to head injury including a skull fracture and brain contusions.

The pattern of brain injury was consistent with a moving head striking a fixed object/surface as seen in a fall onto the back of the head.

The autopsy examination also disclosed severe heart disease including enlargement of the heart and degenerative narrowing of the coronary blood vessels. This could have caused the deceased to collapse and strike his head."

31 The defendant's failure was the failure to implement adequate measures to ensure employees did not use the steel beam and square steel supporting post fixed to the steel beam and concrete walkway as a means of access to and egress from the weighbridge computer.

[7] The agreed statement of facts in relation to the second defendant was similar in terms to that relating to the first defendant. Relevant substantive differences were as follows:

20 There was available alternate means by which drivers could reach the weighbridge computer from their vehicles stationed upon the weighbridge. Those means involved drivers alighting their vehicles, walking upon the flat surface of the weighbridge to either set of stairs located at each end of the weighbridge, descending those stairs to the concrete walkway situated below the weighbridge and walking along the walkway to the weighbridge computer. When a vehicle such as that driven by Besant on the date of the incident was parked centrally on the weighbridge there existed a clearance of approximately 540 millimetres between a vehicle and the steel beam in which a driver could manouvre (sic) along the flat surface of the weighbridge. So far as Besant was concerned, his ability to manouvere (sic) between a parked vehicle and the steel beam was further restricted as a result of his relatively large size (approximately 139 kilograms in weight).

23. Subsequent to the incident the defendant undertook a comprehensive investigation culminating in a written report and recommendations and caused the following remedial measures to be implemented: (a) signage prohibiting drivers walking along steel beams and requiring drivers walk along the flat surface of the weighbridge were affixed to both the weighbridge and weighbridge computer;

(b) an interim procedure was devised whereby an employee of the defendant, delegated the task of weighbridge operator, manned the weighbridge and operated the weighbridge computer alleviating the need for drivers to alight from their vehicles whilst on the weighbridge for that purpose. Consultation with Mulgoa Quarries Pty Limited with regard to the interim procedure was undertaken before being approved and reduced to writing;

(c) the aluminium platform attached to the weighbridge computer was removed; and

(d) platforms incorporating guardrailing were fitted to both sides of the weighbridge at Horsley Park.

4 His Honour also referred to certain other evidence tendered by the respondents at first instance. It is not however necessary to deal with that evidence as it substantially related to matters not presently relevant. One additional matter of evidence which is, however, relevant to the appeal is the evidence called by the appellant from the forensic pathologist who undertook the autopsy of the deceased. His Honour described the evidence of Dr Hulewicz as follows: [11] Dr Bogdan Hulewicz was called for cross-examination. Dr Hulewicz is a qualified medical practitioner who carried out the autopsy on Mr Besant. His findings are contained in the agreed statement of facts. Dr Hulewicz was asked some questions about whether there were any marks on Mr Besant's body consistent with him attempting to break his fall. Dr Hulewicz indicated there were no such marks. He agreed that if a person was falling backwards it was less likely there would be marks on the body indicating an attempt to break a fall than if the person had fell forward.

5 It is also necessary to refer to certain of the conclusions at first instance to the extent relevant to issues in the appeal. Dealing with the first respondent his Honour referred to the risk identified in the amended charge and the failures of the first respondent as acknowledged by its plea of guilty in the following terms: [12] Dealing firstly with the first defendant, the risk identified in the amended charge was that of employees slipping and/or falling when gaining access to and egress from the weighbridge computer at the second defendant's Horsley Park plant. The charge alleged that the defendant failed to implement adequate measures to ensure employees did not use the steel beam and square steel supporting post fixed to the steel beam and concrete walkway as a means of access to and egress from the weighbridge computer. The maximum penalty in this case is $550,000.

[13] The first defendant has acknowledged its failure to ensure the health and safety of employees, in particular Mr Besant, through its plea of guilty. The first defendant submitted, however, that in considering the gravity of the offence, in light of Dr Hulewicz's finding that the condition of Mr Besant's heart "could have caused the deceased to collapse and strike his head", the Court should not take into account the fact of Mr Besant's death. Mr D O'Neil of counsel for the first defendant referred to the prosecutor's submission that:

A sentencing judge may not take facts into account which are adverse to a defendant unless those facts have been proved beyond reasonable doubt. Where a defendant seeks to have matters taken into account in its favour on sentence those matters must be proved on balance of probabilities.

6 His Honour also noted the submissions of counsel for the first respondent which relied upon the amendment of the charge against his client when the prosecutor had withdrawn the particular that "William Besant sustained fatal head injuries when he slipped and/or fell and struck his head on the concrete walkway ...". In that regard his Honour noted the submission that "when the Court takes out of account the death of the deceased it is left with assessing a risk to safety 'created by employees walking along the 210 millimetre guard rail raised 840 millimetres above the footpath' in circumstances where the relevant regulation only requires fall protection to be provided at a height of 1.5 metres or more" (para [14] of his Honour's judgment). It will be observed that para [14] appears to be the basis of the third ground of appeal which we will discuss in detail later in our judgment. However, we do not consider that his Honour accepted the first respondent's submission in that respect since his Honour then said the following: [15] As the Full Bench observed in the recent judgment of Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32]: [32] In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

7 His Honour did, however, come to the following conclusion as to the significance of the death of the deceased: [16] In light of Dr Hulewicz's observations that Mr Besant's death could have been caused other than by a failure on the part of the first defendant, there is reasonable doubt in this respect. Consequently, in assessing the degree of seriousness of the risk I do not propose to take into account the death of Mr Besant, tragic though it was.

8 His Honour then, in paras [17] to [19], referred to the prosecution's submission as to the importance, in assessing the nature and quality of an occupational health and safety offence, to have regard to whether there was a reasonably foreseeable risk: Capral Aluminium Limited v WorkCover Authority (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 at 62; further, that the first defendant was aware of the practice of drivers, in taking the most direct route from their vehicles parked on the weighbridge to the weighbridge computer, walking along the steel beam, which ran the full length of the weighbridge, onto a square post and then onto a concrete walkway that was adjacent to, and 840 millimetres below, the weighbridge. It was in that context that his Honour referred to the appellant's submission that the first respondent was aware of the risk presented by walking on the steel beam when it was slippery, and that the risk was obvious.

9 His Honour also noted the first respondent's submission that the risk of falling from the steel beam involved only "mild to moderate injury and limited foreseeability".

10 This submission was made by the first respondent in the context of its submissions which were set out in para [18] of his Honour's judgment, as follows: [18] On the question of foreseeability, Mr O'Neil submitted:

· Prior to the incident there had been no reports of any incident involving a fall from the steel beam.

· When Mr Besant complained of slipperiness in April 2000 discussions were held with CSR who attended to the problem by applying slip-resistant tape.

· Safety experts engaged by the first defendant had not detected the risk of employees slipping off the steel beam.

· Drivers alighting from their vehicles and walking along the steel beam had the ability to hold onto their vehicle for support thus reducing the risk of falling and making it less foreseeable that someone could fall.

11 It must be emphasised that his Honour did not accept those submissions. The conclusions reached by his Honour were: [20] In my opinion, the first defendant was undoubtedly aware of the risk to injury of falling from the steel beam or the square steel supporting post. The practice of allowing drivers to walk along a relatively narrow 210 mm steel beam without any guardrails and then to step down onto a steel post in order to get to a concrete walkway 840 mm below the weighbridge was an obvious and inherently unsafe practice with the likely consequence that someone who did slip would inevitably sustain an injury. The practice, in my opinion, could only have been made marginally safer by the application of slip resistant tape. In this respect, I note that the tape was applied so that the steel beam "would not be as slippery". And, of course, the application of the tape could only have had the result of inviting drivers to continue the practice.

12 His Honour added: [21] With respect to the availability of simple and straightforward steps to remedy the defect Ms Backman submitted it was open to the defendants at any time prior to the accident to, for example, take appropriate steps to incorporate guardrails on the weighbridge. Such measures were in force prior to the accident at other plants operated by CSR such as the weighbridge at its Schofield plant. In relation to the first defendant, whilst it would not have been open to it to unilaterally erect the guardrails, there was an obligation on that defendant to direct its employees not to walk along the steel beam and to ensure that direction was followed. I note, in this respect, there was an available alternative means of accessing the computer that avoided having to walk on the steel beam.

13 In dealing with the second respondent his Honour concluded: [24] I turn to consider the second defendant. Although the second defendant was charged under a different section of the Act to that which applied to the first defendant, the risk identified in the amended charge and the nature of the failure of the second defendant are essentially the same as those alleged against the first defendant. As with the first defendant, in assessing the degree of seriousness of the risk in the case of the second defendant I do not propose to take into account the death of Mr Besant. The maximum penalty in the case of the second defendant, in light of previous convictions, is $825,000.

[25] As to foreseeability and the availability of steps to remedy the defect giving rise to the risk, I take the same position as that expressed in relation to the first defendant. The complications arising from the Trade Measurement Act 1989 and referred to by Mr M Shume of counsel for the second defendant regarding the modification of the weighbridge are, in my opinion, of no consequence. If difficulties arise in modifying a structure that presents a risk to safety the answer is, in light of the absolute duty cast upon employers to ensure safety, not to use the structure or to take all reasonably practicable steps to eliminate the risk.

[26] I also take the same position with the second defendant in relation to general deterrence as I have with the first defendant. As to specific deterrence, the second defendant is a very large organisation and it might be contended that because of the spread of its industrial activities and its record of prior convictions, in particular those relating to its PGH division, that any penalty should reflect a strong element of specific deterrence. However, one has to have regard to the second defendant's policies, programs and practices regarding occupational health and safety. I consider these to be of a high standard. One also must have regard to the measures taken by the second defendant following the incident in May 2000 to avoid a recurrence of the risk. In fixing the penalty I have sought to bring these factors into proper balance.

14 In determining penalties of $39,000 and $44,200 for the first and second respondents respectively (after deduction of discounts in each case of 35 per cent for the guilty pleas and other subjective factors) his Honour held: [28] The nature and quality of the offences committed by the defendants in these proceedings is such that they should not attract severe penalties given that I have excluded from my consideration the death of Mr Besant for the reasons earlier given. The risks created by the failure to take appropriate steps to prevent persons using the steel beam and support post in gaining access to and egress from the weighbridge computer were, nevertheless, obvious risks known to the defendants and the risks were easily avoidable.

[29] I have had regard to the need for consistency in sentencing given that the same circumstances have given rise to the two prosecutions: see Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 325 at 340-341; Capral Aluminium 99 IR at 56-58. The maximum penalties applicable to the respondents were, respectively, $550,000 and $825,000.

15 The appellant pressed his appeal on four grounds, which may be summarised as follows: (a) first, that although counsel for the appellant at first instance conceded that the prosecution could not prove that the deceased had died as a result of falling off a 210 millimetre wide steel beam which was used as a walkway, the beam was situated 840 millimetres above and adjacent to a concrete walkway. The failures pursuant under the Occupational Health and Safety Act arose inter alia out of allowing the beam to be used as a walkway and the failure to erect any guarding or fencing to stop persons falling off the beam. However, there was no dispute that the deceased died as a result of head injuries in falling from which ever place he fell. Thus the prosecutor did prove beyond reasonable doubt the potentiality of the "risk" of death by falling a distance. Although his Honour correctly identified that in assessing the gravity of the offence the focus must be on the risk and not the consequences of the accident, his Honour accepted that the consequences of the accident could be used to assess the degree of seriousness of the risk. However, his Honour in stating "I do not propose to take into account the death of Mr Besant, tragic though it was", his Honour's reasoning was based on the prosecution's inability to prove that the death was as a result of the deceased falling from the beam. This, it was submitted, amounts to an error of fact and law in terms of the principles in House v The King (1936) 55 CLR 449. It is thus submitted that the fact that the deceased either died from a fall from the beam, or died from a fall on the walkway beneath the beam caused by a heart attack, whichever be the correct version, only demonstrates (beyond reasonable doubt) that persons could die by a fall from the beam as there was no doubt the deceased died from a fall. (b) secondly, his Honour did not make any finding as to what type of injury could be sustained by a fall from the beam. Thus, his Honour failed to identify the "risk of injury" which was relevant to the breaches that had occurred. His Honour in simply stating that the breach would cause "an injury" thereby failed to exercise his discretion correctly. Had his Honour identified the particular risk of injury relevant the breaches would have been dealt with more seriously than they were. (c) thirdly, his Honour wrongly stated the law and this caused his Honour to misdirect himself as to the seriousness of the breach when he relied on the fact that "the relevant regulation only requires fall protection to be provided at a height of 1.5 metres or more" (para [14] of his Honour's judgment). The height from which the deceased was at risk of falling in using the beam as a walkway was 840 millimetres. His Honour had available, as provided by the prosecutor, Australian Standard 1657-1985 (which was adopted by the Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990). The Standard requires guard rails where the walkway is more than 300 millimetres above an adjacent platform or floor. Thus on the agreed facts the respondents breached the Regulation contrary to his Honour's finding. It was submitted that, in any event, his Honour was wrong (and misled by the relevant respondent into believing that it was appropriate to do so) to refer to the Construction Safety Regulation, which allowed openings of 1.8 metres, as the "relevant" regulation since the site was not a "building" or "construction" site and thus the Construction Safety Regulation was not relevant to the particular site. (d) finally, it was submitted that the fines his Honour determined against the respective respondents were manifestly inadequate and not merely at the low end of an acceptable range.

16 It is convenient to deal with the first and second grounds together as the grounds are related and we do not consider that either of them should be upheld.

17 The relevance to the gravity of an offence of injuries suffered as a result of a breach of the Occupational Health and Safety Act and the relevance of potential serious consequences or serious injuries of that breach, are well settled: see, for example, Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) at paras [94] and [95] where it was held: [94] We consider that the limited injuries suffered by Mr Stafford must be seen in the context of that evidence and also in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries suffered, or which may have been suffered, and the gravity of the offence. We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Watson v Southern Asphalters Pty Limited (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 131; WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409; Lawrenson Diecasting Pty Limited at 476; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited at 90 - 91; and Page v Walco Hoist Rentals Pty Limited (No. 2) at 22.

[95] It must however be recognised that the principle does not lead to the proposition which, at least implicitly, was relied upon by the appellant. That is, relatively minor injuries of themselves demonstrate that the offence was not a serious one. We do not consider that is or represents a correct statement of principle or correctly portrays the situation here. We consider the relevant risk was not exemplified by the limited nature of the injuries suffered, and thus those injuries do not give an accurate insight into the seriousness of the breach of the Act. Rather, we consider that the breach of the Act, although limited to the failure to provide adequate protective clothing, was a very serious one indeed.

18 We do not consider that the proper application of the relevant principles requires the sentencing judge to expressly specify the type of injury that could have been suffered as a result of the particular breach of the legislation, although it is appropriate in most cases for there to be an indication of the kind of consequence that could have resulted from the breach. The second ground of appeal should therefore be rejected.

19 As to the first ground of appeal, we are not persuaded that the appellant (the prosecutor below) proved at the relevant standard that the likely consequence of the breaches of the statute was a fatality. Although a fatality might have been possible in the circumstances, there was not evidence from which it could be concluded that the physical circumstances of the deceased's fall, if it had been caused or precipitated by the deceased suffering a heart attack, did not have an effect on the potential causes of such a fall. In other words, there was no evidence which could have excluded the possibility the fatality may not have occurred merely from the breaches but would only have occurred in the personal circumstances of the deceased. Ground one must also fail.

20 It is also convenient to deal with the third and fourth grounds of appeal together albeit for different reasons to those relevant to the other grounds of appeal.

21 We have concluded that the fourth ground of appeal should be upheld. We consider that the fines imposed by his Honour were manifestly inadequate and in explaining why we have reached that conclusion it is necessary to say something about the third ground and return briefly to the second ground.

22 It is open to a court of criminal appeal, in an appropriate case, to conclude that a sentence is manifestly inadequate without the identification of specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 at 325; WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 at 73 - 74; see also House v The King (1936) 55 CLR 499 at 505. We are prepared to base our decision in this matter on manifest inadequacy simpliciter, although we consider it appropriate to refer to another matter as having some relevance.

23 As noted, we consider that the sentences imposed by his Honour were manifestly inadequate. We have reached this conclusion having regard generally to the findings his Honour made as to the objective circumstances of the offences. There was however one matter upon which his Honour made no finding. That was in respect of the potential consequences (as to injury, etc) relevant to the breaches to which the respondents pleaded guilty. His Honour (see paras [16] and [24]) dealt with the matter consistent with what appears to have been the common ground between the parties at trial. That is, by not taking into account the death of Mr Besant in assessing the degree of seriousness of the risk and thus the gravity of the offences. What his Honour did not do, however, was to refer to, or apparently assess, the risk's potential to cause or result in serious injury such as limb fracture, or worse (although his Honour did refer to the relevant principle in paras [15] and [16] of the judgment (see paras [6] and [7] above) exemplified by the Full Bench judgment in Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416). It is likely if his Honour had approached the matter in that way the fines imposed would have been much greater.

24 We should observe that we have reached the conclusion we have on the fourth ground of appeal notwithstanding the strenuous submissions of the respondents that we should not do so.

25 Returning then to the third ground of appeal, it will be recalled this related to the contention that his Honour wrongly relied on the relevant part of the Construction Safety Regulation which required that full protection was only to be provided where a fall of more than 1.5 metres could occur and this overlooked the effect of Australian Standard 1657-1985 and its adoption by one of the regulations made under the Occupational Health and Safety Act.

26 As noted earlier, this ground appears to be a reference to para [14] of his Honour's judgment where his Honour said: [14] Mr O'Neil also referred to the fact that in amending the charge the prosecutor had withdrawn the particular that "William Besant sustained fatal head injuries when he slipped and/or fell and struck his head on the concrete walkway …" It was submitted for the first defendant that when the Court takes out of account the death of Mr Besant it is left with assessing a risk to safety "created by employees walking along the 210 millimetre guard rail raised 840 millimetres above the footpath" in circumstances where the relevant regulation only requires fall protection to be provided at a height of 1.5 metres or more. (We have emphasised the words which the appellant relies on for this ground of appeal). His Honour's judgment then relevantly includes paras [15] to [17], to which we have earlier referred. When those paragraphs are correctly understood, it is clear that his Honour did not accept the submission of counsel insofar as it depended on the reference to "the relevant regulation only requires fall protection to be provided at a height of 1.5 metres or more." Analysis of the relevant paragraphs of his Honour's judgment, and especially para [17] thereof, makes clear that his Honour was not incorrectly diverted from the issues by the first respondent's reliance on the matters set out in para [14]. Ground three is not made out.

27 Finally, as to the grounds of appeal, it may be noted that although we have rejected the appellant's first ground of appeal we have, in upholding the fourth ground, adverted as a possible explanation as to why inadequate penalties were imposed, to matters which have some resonance with ground two but this does not qualify our dismissal of that ground.

28 Having concluded that the appellant has succeeded in his final ground of appeal the next issue requiring consideration is whether the appeal should be upheld and, if so, what orders should be made in substitution of those made at first instance.

29 It is settled that a court of criminal appeal having identified error in sentencing at first instance in a prosecution appeal is not bound to uphold the appeal and increase the sentence imposed. Rather, the appeal court must approach the issue of re-sentencing with caution and has an overriding discretion to dismiss the appeal. The relevant principles have been recently restated in the Full Bench judgment in Weathertex at 75. Full Bench authority in this Court also makes plain that the usual approach, if it is decided to re-sentence on appeal, is to have regard to the principle of double jeopardy even if the appeal concerns a corporation: see, for example, Weathertex at 74 and 77.

30 We do not consider that it would be appropriate to exercise our discretion to dismiss the appeal. We do not accept the submissions of the respondents that in some way the approach of the appellant, as prosecutor at first instance, was a factor in the error we have found to have occurred.

31 As to the appropriate penalties in the matter, we consider it appropriate to approach the matters generally in the way in which that occurred at first instance, save for two matters (this means that, subject to the principle of double jeopardy, we should apply the same discounts as were applied by Boland J). First, we should give weight to the principle of double jeopardy; second, we should give explicit weight to the significance of the potential consequences of the breaches as described earlier in these reasons.

32 Approaching the matter in that way we consider that the fine imposed on the first respondent should be $58,500, and that on the second respondent $84,500, penalties which are at the lower end of applicable penalties. There should be no costs order made as to the appeals.

33 We accordingly make the following orders in disposition of the appeal: 1. The appeals are upheld.

2. The fines imposed by Boland J on the respondents are set aside.

3. In lieu thereof: (a) the first respondent, Mulgoa Quarries Pty Ltd, is fined the sum of $58,500;

(b) the second respondent, CSR Limited, is fined the sum of $84,500.

(c) a moiety of each fine shall be paid to the WorkCover Authority of New South Wales.

4. There shall be no order as to the costs of the appeals.

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