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[2011] NSWIRComm 141
Industrial Relations Commission (NSW)
2011-09-29
Staff J, Mr P, Ms P
Original judgment source is linked above.
Judgment 1Endeavour Coal Pty Ltd (the "defendant") held the lease of a mining area within the Appin Colliery known as the "Douglas District". Mining undertaken within that district was known as the "Douglas Project". 2The defendant had responsibility for the Douglas Project on behalf of the BHP Billiton Ltd ("BHP Billiton"). Illawarra Coal Pty Ltd ("Illawarra Coal") was the holding company for the defendant, which, through Illawarra Coal Holdings Pty Ltd ("Illawarra Holdings") entered and had in place special service agreements with Delta Mining Pty Ltd ("Delta") and Southern Colliery Maintenance Pty Ltd ("Southern Colliery"). 3Pursuant to these special service agreements, Delta and Southern Colliery, each and independently of the other, supplied supplementary labour to the defendant and other BHP Billiton companies as and when required, for the Douglas Project. 4As the Douglas Project developed, it required mega bolts to be installed into the roof of the mine. Scaffold was required to be erected for this work to be undertaken. 5A decision was made to have Southern Colliery contract with Waco Kwikform Ltd ("Waco)", a scaffold hire company to erect and dismantle the scaffolding. Waco subcontracted the work to Blue Water Scaffolding Pty Ltd ("Blue Water"), who erected the scaffold. 6At about 4.50pm on 7 July 2006, sections of the decking boards on one of the platforms of the scaffolding on which Mr Kenneth Evans, an employee of Delta, was working, collapsed. Mr Evans fell approximately 3.3 metres, dislocating both shoulders, fracturing his left shoulder and tearing tendons to his right shoulder.
The Charge 7The defendant, in an amended application for order, was charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000 (" OHS Act "), in failing to ensure that persons not in its employment, and in particular, Kenneth Evans, Aaron Morrison, Wayne Powell, Larry Tynan, Gary Nees and Matthew Withers were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work. The particulars were as follows: Particulars of risk: A. Non-employees were exposed to a risk of falling through scaffolding. B. Non-employees were exposed to a risk of being struck by people or objects falling through scaffolding. Particulars of the Failure:
Prosecutor's evidence 9Mr P Strickland SC, who appeared with Mr D O'Neil of counsel, for the prosecutor, tendered an agreed statement of facts which provided: Participants
Defendant's evidence 12Ms P McDonald SC, who appeared for the defendant, read an affidavit of Robert David Madeley, Manager, Mechanical Engineering of the defendant, who is currently seconded to the regional office of Illawarra Holdings. 13Mr Madeley stated that he had authority to give evidence on behalf of the defendant. 14After setting out his employment history in the coal mining industry, where he commenced as an apprentice fitter machinist in 1979, Mr Madeley described the Douglas Project ("the Douglas Project"), observing that there were four main contracting companies on the site at the Douglas Project. Two companies, Southern Colliery and Delta were the premium contractors in the Illawarra region. The other two contractors were Mastermyne Pty Ltd and Minecraft Consulting Pty Limited. The Douglas Project was run as a separate mine project from the Appin Colliery, which was a fully operated production mine. However, the two sites shared one statutory manager. A statutory mine manager delegation was provided for the Douglas Project so that there was a Deputy Statutory Manager for Appin Colliery, Douglas District. 15The Douglas Project no longer exists. In the second half of 2007, the Douglas Project was integrated with the existing Appin Colliery (now known as Appin East Colliery). The site of the Douglas Project became the Appin West Colliery when it commenced longwall mining. This is a system of mining that involves the extraction of large blocks of coal, with the coal being mined on retreat in slices of up to one metre thick from the long coal face. The Douglas Project was to utilise the longwall method of extraction. 16To oversee the number of contractors that were utilised at the Douglas Project, Illawarra Coal attempted to minimise the number of small contracting companies and utilise the primary contractors, referred to earlier by Mr Madeley. If work was required to be performed that could not be performed by one of the primary contractors, on occasion that work would be subcontracted through one of the primary contractors. 17Relevantly, in respect of these proceedings the contracts in place between Illawarra Coal and Southern Colliery and Illawarra Coal and Delta, concerned the provision of supplementary labour to a number of sites, including the Douglas Project. 18As a general rule while at the Douglas Project, Southern Colliery performed the role of engaging fitters and electricians conducting engineering work and Delta undertook outbye services and development work. 19Neither Illawarra Coal nor the defendant had a contractual relationship with Waco or Blue Water. Delta and Southern Colliery filled each of their roles at the site as a full time equivalent position within the defendant's organisational chart while Delta and Southern Colliery contractors were contracted to the Douglas Project, they were performance managed as full time equivalent employees. In this regard, they were in charge and managed the work activities relevant to their areas of responsibility, under supervision from the defendant. 20The defendant had and maintains a system of pre-qualification for the contractors it uses. The pre-qualification system at the time meant that prior to being inducted and commencing work at the Douglas Project, the contractor had to go through the contractor screening process. The contractor screening process applied to contractors that represented a pre-determined level of exposure and risk to the Douglas Project. The level of exposure and risk applied to a contractor that: (i) worked 20 hours or more during a calendar month; (ii) undertook regular wok on site on monthly, quarterly or other similarly repetitive cycles; or (iii) undertook a task considered to be of a significant level of risk to the business. 21Information sought from the contractor included: i) OH&S general; (ii) risk identification and management; (iii) workers compensation and rehabilitation plan; (iv) number of classified injuries for the last full year; (v) number of restricted (work) duties for last full year; and (vi) Health, Safety, Environment and Community ("HSEC") Management Standard performance. 22Contractors were assessed and had to receive a score of more than 60 per cent, or they were considered to have failed the contractor pre-qualification. The selection process was contained in a document annexed to the affidavit. 23Delta and Southern Colliery both went through the pre-qualification process. The Pre-Qualification Evaluation Checklist for both Delta and Southern Colliery was also annexed to the affidavit. 24The pre-qualification of contractors lasted for a period of time before contractors had to undertake a renewal of their pre-qualification. At the time of the incident, Detla was due to have its contract for the provision of supplementary labour reviewed by 31 December 2006. Similarly Southern Colliery was also to have their contract for the provision of supplementary labour reviewed by 31 December 2006. 25Mr Madeley detailed the circumstances which led to the necessity for scaffolding to be erected in the mine. He stated that to his knowledge there was no person at the Douglas Project that had the skills and training to design the scaffolding. Furthermore, it was known that the installation of the scaffolding required specific training, qualifications and certification. These were not held by anyone at the Douglas Project. As such, a contractor with suitable training and experience was required to design and install the required scaffolding. 26The defendant's requirements in relation to the installation and erection of scaffolding were set out. Annexed to the affidavit was a copy of the Delta 24 hour Project shift instructions for the day shift and afternoon shift on 7 July 2006 (the day of the incident) in which reference was made to Mr Larry Tynan to check David Loach's (both employees of Delta) notes regarding the sign off of the scaffolding. 27Also annexed was the Douglas 12 Line Transfer Secondary Support Week 1 of the Delta weekly plan which confirmed that "Yogi/Mother to signoff the finished structure assessment with Waco scaffolders - handover certificate". Mr Madeley understood that "Yogi" referred to Mr Denis Winley (an employee of Delta) and "Mother" to Mr Greg Nees (also an employee of Delta). 28Mr Madeley stated that from his discussions with Mr Loach before the incident, he understood that Stephen and Danny King were employees of Waco and that Waco were selected by Delta/Southern Colliery because they had undertaken prior scaffolding work underground at the Douglas Project. 29Mr Loach provided the scaffolding company with the height of the scaffold and expected load requirements. A meeting was held between the defendant's contractor co-ordinator, the defendant's Geotechnical Engineer and Southern Colliery concerning the engagement of the scaffolding company. 30Delta had previously advised they could not engage the scaffolding company due to payroll issues. Southern Colliery had previously engaged a scaffolding company. The outcome of a meeting was that Southern Colliery engaged Waco. 31Mr Madeley described the risk assessment that was undertaken for the installation of the secondary support for the roof. The assessment included four representatives from Delta, the defendant's Geotechnical Engineer, a representative from Waco, and two scaffolders from Blue Water. The objectives of the risk assessment were: (i) To identify hazards and existing controls associated with the installation of secondary roof support from scaffolding at 12C/T Douglas Main drivehead site, and to make recommendations for further controls where appropriate. (ii) The main consideration is for personal safety however equipment damage, operational loss or environmental issues will be considered where relevant. 32As the purpose of the risk assessment was the overall task of installing secondary roof support, it did not specifically address the task of installing the scaffolding. However, the risk assessment did identify that the erection and dismantling of the scaffold would need to be done in accordance with the scaffold company standards and procedures. In conducting the risk assessment, the defendant also relied on the expertise of the scaffolders to identify the risks associated with scaffolding, including installation. 33The steps to be followed in accordance with the risk assessment for the secondary support for the roof were set out in detail in the affidavit. Mr Madeley then explained the scaffolding installation and the incident. His evidence is consistent with what is found in the agreed statement of facts. He observed that it accepted a practice throughout the mining industry to use cap lamps attached to a person's helmet to provide lighting underground. He said that at no time after 30 June 2006 or prior to returning on 7 July 2006, did any representative of Waco or Blue Water request additional lighting or raise any concerns regarding lighting. If this had occurred, additional lighting it would have been made available. 34Illawarra Coal's Contractor Management Plan ("CMP") contained an equipment checklist for scaffolding. A copy was annexed to the affidavit. 35In summary, prior to the incident, the defendant took the following steps: (a) estimated the expected maximum load on the scaffolding, which included bolter thrust, materials and people; (b) required compliance with a 2 to 1 (2:1) safety factor of the estimated maximum load; (c) required competent and relevantly experienced scaffolders had been engaged; (d) required appropriate documentation such as a safe work method statement; (e) to have the design certified by a chartered civil engineer; and (f) to have a sign over to confirm that the scaffolding had been assembled in line with the scaffold design. 36However, the defendant accepted that there was no confirmation whether Blue Water had inspected the scaffolding, as required by the equipment checklist, by reference to a recognised checklist such as found in Australian Standard 4576:1995 Guidelines for scaffolding . The defendant did not confirm whether Blue Water had tagged off the scaffolding before the scaffold was used. 37Following an onsite review after the incident, and the regulator's safety alert, the defendant reinforced to all mine site workers the importance of complying with all requirements of the equipment inspection checklists. A revised contractor management process was implemented following the incident. 38Mr Madeley described the actions taken by the defendant following the incident. This included assistance provided to Mr Evans after the incident and once he left hospital on 9 July 2010 and was recovering at home. Though not an employee of the defendant when he initially returned to work, he was given alternative duties by the defendant in the safety and training department. He was also provided training in the operation of the control room. 39Scaffolding rectification work was carried out in accordance with a notice issued by the Department of Primary Industries (as it was then known). A further risk assessment was also undertaken. Delta had four operators and a supervisor attend the further risk assessment. Waco had two people attend, and the defendant had two people attend. B-Tak Services who was engaged to carry out the work, had a director and three scaffolders attend. The defendant required Waco to attend the site to carry out a further inspection of the scaffolding before it allowed any further employees or contractors to work from it. This inspection occurred on 30 October 2006, at which time Waco advised that the scaffolding was fit for purpose and could be used. 40Mr Madeley also attended that inspection of the scaffolding with a competent scaffolding person, and compared the design diagram to the actual scaffold that had been constructed. As a result of this comparison, the competent scaffolding person identified there was a missing component in the scaffolding, despite the rectification work. Annexed to the affidavit was a copy of the design diagram for the rectification work. Following a further inspection on 2 November 2006 Waco was issued with their Hazard and Corrective Action Report which recorded that the "scaffold had not been constructed as per certified design - kickboards not secure". A copy of this document was annexed to the affidavit. 41Waco's General Manager attended the Douglas Project on 10 November 2006 to meet with Mr Madeley and the then Vice President of Illawarra Coal. Following this meeting, Waco sent a letter outlining the corrective actions to prevent a reoccurrence of the incident. A copy of this letter was annexed. 42On 13 November 2006 Mr Pedro Camus, the civil engineer that signed off the original scaffolding design and Mr Johnson from Waco attended the Douglas Project to inspect the scaffolding and sign off its suitability for use. The defendant then sought an independent third party inspection of the scaffolding before any employees or contractors were allowed to access the scaffolding. Once the independent third party verified that the scaffolding was safe to use, the installation of the secondary support for the roof occurred. 43Mr Madeley set out the occupational health and safety systems in place for the defendant at the time of the incident. These systems included BHP Billiton's overarching Health, Safety, Environment and Community ("HSEC") Management Standard. This system included 15 HSEC management standards. 44As the Douglas Project progressed, it became a requirement that a task analysis was conducted for every task which did not have a written procedure. A copy of the HSEC task analysis conducted on 30 June 2006, together with other task analysis were annexed. 45All employees, primary contractors and visitors completed an induction process for the Douglas Project. There were four levels of induction, depending upon the type of work and where it was to be carried out. 46As part of the induction programme there was the " Working at Douglas Programme" that was delivered by the Operations Manager with the first few weeks of commencing at the site. The focus of the programme was on safety. A copy of the Programme was annexed. 47"Fatal Risk Control Protocol Champions" were implemented by each site to oversee fatal risk control protocols. BHP Billiton had 10 fatal risk control protocols. 48Planning and monitoring systems were also in place at the time of the incident. Once a week there was a planning meeting to plan the work for the next nine or ten days and to resolve any issues or operational conflicts which might arise as a result of the work planned. A weekly plan was prepared and emailed to relevant people and a copy was attached to the mine's noticeboard. An example of a weekly plan was annexed to the affidavit together with copies of the daily plan for 30 June 2006 and 7 July 2006. 49The Douglas Project had a Health, Safety, Environment and Community Committee ("HSEC Committee") which meet once a month. The Operations Manager, Health and Safety Manager and Deputy Statutory Manager for the Douglas Project District all attended the HSEC Committee meeting, along with other representatives of the workforce, including representatives from the primary contractors. 50The Douglas Project HSEC system was routinely audited by BHP Billiton's audit team. The Douglas Project also completed a HSEC self assessment against the HSEC Management Standards once a year. It was from the HSEC self assessment that the site developed and implemented its own performance improvement plan. 51Prior to the start of shift, the shift Undermanager, Deputies and shift supervisors would have a meeting to plan the work and resources for that shift. Prior to this meeting the oncoming and off going Undermanager's and Deputies would have conducted their shift handovers. A copy of the shift brief dated 5 July 2006 and 8 July 2006 was annexed. The shift briefing document was used to communicate additional information to the crews. In addition, from time to time, individual crew talks were held in the crib room underground to address any information that was specific to that crew. At the end of the shift, the offgoing Undermanager, Deputies and shift supervisors, would have a "shift debrief". Following this meeting, the Undermanager would prepare a report summarising the shift for the Deputy Statutory Manager. A copy of the shift operations reports from 30 June 2006 to 9 July 2006 was annexed. Once a month, the Operations Manager of the Douglas Project would hold communication sessions. Each communication session shared information concerning the Douglas Project's overall progress. 52In the Douglas Project Organisational structure the Operations Manager oversaw the Douglas Project. He was supported by function area management. Each of the primary contractors had a site representative from their organisation who attended the site to oversee the work being performed by that contractor. By way of example, Delta supervisor, Mr Loach, attended the Douglas Project three to five times a week. Delta issued their own shift instructions to their crews. A copy of the Delta shift instructions issued on 7 July 2006, day and afternoon shifts, was annexed. Similarly, Mr Paul De Leeuw from Southern Colliery also attended the Douglas Project two to three times per week to oversee the work that was being conducted by Southern Colliery employees. 53There was a strong emphasis on creating a strong safety culture at the Douglas Project. In the short time that the Douglas Project was operating, there were a number of safety initiatives that were undertaken. These included a four day induction training programme conducted by Southern Mines Rescue. Illawarra Coal held and continues to hold, a one day refresher training at the Southern Mines Rescue Station in Woonona for all employees and primary contractors. The refresher training involved the use of self rescuers, compressed air breathing apparatus ("CABA"), fire fighting and a mock underground evacuation. A copy of the underground re-accreditation training materials was annexed. The Douglas Project also implemented the "Working Together" Program, which was a residential leadership programme that ran over four days. The programme concerned leadership and culture with a focus on team exercises and the practical aspects of leadership. Employees and primary contractors were all invited to attend. A copy of the presentation was annexed. 54The "Watch Program" which stands for "We Aim To Change Habits" ("WATCH"), was a documented peer safety observation program. The programme was designed to be a "no blame, no name" program. A WATCH observation required the observer to assess against the provided criteria the behaviour of the person being observed. The WATCH Observation List was contained in the Douglas Project Blue WATCH book. Each employee and primary contractor at the Douglas Project received one of these books and they were available in the muster room. A copy of the book was annexed. WATCH observations were conducted by both managers and other workers at the mine. All personnel were required to perform at least one to two WATCH's per week. WATCH reports for Mr Love, Mr Loach, Mr Nees, Mr Tynan and Mr Withers were annexed. 55The "WATCH Committee" reviewed the number and quality of the WATCH observations to identify any trends from the observations. In addition to the "Working Together at Douglas Program", there was also the " Leadership Intervention Skills Training" ("LIST"). LIST was a three day mentoring and leadership training programme prepared with external consultants. The course aimed to improve leadership skills and create a unified work force. The training was provided to people in supervisory roles. A copy of the LIST training materials was annexed. 56In response to concerns regarding an increase in the number of near misses in 2005 operations ceased for one day to attend a "safety day". All employees and contractors that regularly worked at the Douglas Project attended. The Operations Manager made a presentation regarding the safety obligations at the Douglas Project. The Operations Manager then sought from all of the attendees a written confirmation of acceptance of their role and responsibilities. A copy of the Agenda for the safety day was annexed. 57Managers, Undermanagers and Coordinators each had a personal behaviour chart which recorded what safety actions and leadership skills had been demonstrated by that individual over the course of a 12 month period. The personal behaviour chart focused on the person's leadership within their department. The personal behaviour chart sought to make sure that persons in leadership roles "walked the talk, not just talked the talk". The personal behaviour chart was discussed as part of a person's performance review. 58Mr Madeley stated that the safety performance in 2006 prior to Mr Evans' incident was good. In July 2006 the lost time injury frequency rate of 8 was based on the number of injuries times 1 million exposure hours. In the month prior to Mr Evans' injury the lost time injury frequency rate was 3.3. Attached to the affidavit was a graph reflecting the safety performance at the Douglas Project. 59In the financial year of 2007, the Douglas Project spent $0.948 M on capital risk reduction projects. In the financial year ending 2007 the overall spend for safety was $1.206 M. 60In the financial year ending June 2011 the defendant's safety spend was $21.321 M. 61Mr Madeley detailed the Health and Safety Management system that had been mapped to the requirements of AS4804 and legislative requirements. Operations within the BHP Billiton group achieved the requirements of the standards through implementation of policies, procedures and processes suitable to their particular operation. He stated relevantly, hazard identification and risk management forms part of planning processes supported by formal risk assessments, behavioural safety observations, inspections and on the job risk assessments. Hazards are managed by application of the hierarchy of controls. Implementation and performance of the health and safety management system are monitored and the system incorporates processes for continual improvement. A copy of the Health and Safety management system structure was annexed. 62Mr Madeley set out the current safety systems relevant to the incident and stated that in 2006, a scheduled review of the procedures and documents underlying the CMP was undertaken. The review involved consultation with key members of operation at each Illawarra Coal site, engineers and team leaders and lead to the development of the Working with Contract Partners Framework. 63This contemplates the life cycle of the contractual process from scoping of the work to contract management and performance. When the contracted work is being executed a daily site inspection is to be undertaken. A copy of the Framework was annexed. Procedures regarding Work Preparation and Works Execution have also been developed to support the Working with Contract Partners plan. An e-learning package was developed for each of the key steps of the Working with Contract Partners Framework which included request for contract; tender process; contractor evaluation and award contract; execute, manage and improve, and performance management and contract closure. 64At the date of the sentencing hearing, 278 employees and contractors had completed the e-learning package. The e-learning package for Contract Owners includes the key steps of contractor evaluation and award contract. At the date of the sentencing hearing, 90 employees and contractors had completed this e-learning package. There is also an e-learning package for Job Owners which includes the key steps of execute, manage and improve and performance management and contract closure. At the date of the sentencing hearing, 159 employees and contractors had completed this e-learning package. 65In the latter half of 2008, the Working at Heights Protocol was reviewed and revised. The protocol provides that where working at heights (above 2 metres) is unavoidable a safe work platform is to be used. Where a platform cannot be used, fall arrest equipment is used and the protocol provides guidance regarding its use. A copy of the Working at Heights Protocol was annexed. 66The Working at Heights Protocol is supported by a Working at Heights Permit system. This permit system includes requirements for the use of scaffolding on site, including the requirements for a scaff tag to be installed; for the scaffolding to be designed and erected by ticketed scaffolders, and for the scaffold to be independently inspected. A copy of the permit was annexed. 67Mr Madeley stated that Illawarra Coal and the defendant are active in the communities around Appin. In the financial year ending 2009 Illawarra Coal spent $1,056,839 M in the community and $948,041 in the 2010 financial year. The monies provided support community activities, community working groups and donations. 68BHP Billiton is also a regular entrant in the NSW Minerals Council Safety Award innovation competition. It also conducts its own internal safety innovation awards ceremony with entrants from across its global operations. Winners are selected by an external panel of safety experts. This programme has had great success in encouraging and supporting safety initiatives across the global operation. 69Mr Madeley stated that he was authorised on behalf of the defendant to express its sincere regret and remorse for the injury suffered by Mr Evans, and the impact of his injury on Mr Evans' family. The defendant also expressed sincere regret and remorse for the exposure of risk of injury to Mr Nees, Mr Withers, Mr Tynan and Mr Morrison, and for the breach of the OHS Act . He stated that he understood that the President of Illawarra Coal was aware of the incident and of the breach of the OHS Act and would be providing a letter of contrition to the Court. 70Mr Madeley concluded by stating that BHP Billiton had co-operated with the Department of Primary Industry (as it was then known) during its investigation into the incident. The co-operation consisted of the provision of resources to the investigators, access to the underground environment for investigative purposes and making persons available for interview, together with the provision of relevant documents. 71During cross-examination, Mr Madeley confirmed that both an Authority to Work and a Task Analysis were completed in relation to the scaffolding work. He said that he assumed that the documentation that was provided at the risk assessment that was carried out prior to the scaffolding work would be relevant to "the job of erecting, of carrying out the secondary support in 12 cut through". He acknowledged that Mr De Leeuw, an employee of Southern Colliery, identified a problem with Waco's engineering assessment and OHS work policy and management plan. Subsequently, Mr De Leeuw postponed the erection of the scaffolding until the issue with the documentation was rectified. Mr Madeley learnt of this after the incident had occurred. He stated that he did not know whether Mr De Leeuw reported back to the defendant about the Waco OHS work policy and management plan. He further gave evidence that Mr Larry Tynan received and signed the handover certificate following the completion of the scaffolding work. Mr Tynan was a member of Outbye Services. 72Mr Madeley acknowledged that he participated in the investigation of the incident. He added that he became aware, during the course of the investigation, that there was a deficiency in the handover certificate in that it did not certify that the scaffold was fit for use. He agreed that he was a "champion" of the working at heights protocol. In a document titled "Working@Height", Mr Madeley described what was meant by "standards used for testing". He said it meant that testing of the fall restraint equipment was completed by an industry recognised facility. 73In an interview with the Department, he contended that although the defendant was generally responsible for implementing the fatal risk control protocol, his individual role was to provide guidance in the area of working at heights. 74He accepted that the fatal risk control protocol should have been included in and referred to as part of the risk assessment for two reasons. First, because there was the potential for the scaffolders to work at heights in erecting the scaffolding, and secondly, alternative methods of reaching heights required to install scaffolding considered at or prior to the risk assessment may not have been appropriate. 75Asked whether the task analysis should have included a measure that an inspection must be performed according to recognised standards, he stated that he did not have an opinion on this. After the incident, he recalled having discussions about the fact that both the handover certificate and the scaffolding were incomplete. 76During re-examination, he accepted that scaffolding was not included under the "Contractor Equipment Inspection Checklist" because it was not a usual piece of equipment used by the defendant who engaged scaffolding firms, such as Waco. In doing so, it relied upon such firms to provide appropriate equipment and completing scaffolding tasks satisfactorily.
Relevant principles 77The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act . Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) (" Capral ") 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:' 'Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.' [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: '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 Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (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 Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.' [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).'
Consideration 78The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the evidence. 79On 7 July 2006, the defendant failed to ensure that Blue Water inspected the scaffolding by reference to a recognised checklist such as used in Appendix J of Australian Standard 4576:1995. It further failed to ensure that Blue Water tagged off the scaffolding before its use. 80It was an agreed fact that the defendant was required to monitor Waco's work and the work of Blue Water through its operating systems which ranged from task analysis type processes to supervision by supervisors and statutory personnel in the areas of expertise. Through this monitoring and supervision, the defendant should have ensured that both the checking and tagging off of the scaffold occurred. 81I proceed to sentencing cognisant that the entering of a plea of guilty by the defendant amounts to a confession of guilt and an admission to all the elements and particulars of the offence to which the plea was offered: Woods v R [2008] NSWCCA 83; (2008) 184 A Crim R 108 at 367 per Spigelman CJ (Howie and Latham JJ agreeing). Furthermore, the conduct, which the defendant has admitted by its plea, demonstrates a failure by it to have in place the necessary safety systems required by the OHS Act to ensure the safety of non-employees. 82BHP Billiton's CMP dated January 2004 for Illawarra Coal outlined the responsibilities of all personnel associated with contracts at the mine. BHP Billiton provided all site managers, site co-ordinators and contracting firms management should be specialists in the CMP. All other site and contracting firm management were required to be familiar with the CMP procedures and in particular the flow charts of contractor management which outlined the requirements of engagement, use and monitoring of contract personnel at Illawarra Coal sites. 83The CMP provided that: "Any deviation from this process MUST be approved (in writing) by the Site Manager. These processes shall be used in conjunction with the Contractor Induction material and the Illawarra Coal HSEC Management System". 84Under the heading "Contractor Equipment Inspection Checklist", s. 5 Scaffolding included "Scaffolding tagged off before use". It was the defendant's failure to comply with this requirement which led to it admitting the conduct particularised in (b) of the amended application for order. 85An issue arose during the sentencing hearing in respect of questions that Mr Strickland sought to ask Mr Madeley regarding the BHP Billiton document known as the "Fatal Risk Control Protocols - Working at Heights" and whether this protocol was taken into account in the risk assessment. This document was dated January 2005. 86Ms McDonald objected to any evidence in respect of the fatal risk protocol, on the basis that there was no particular which alleged a deficiency in a risk assessment and that the protocol was not relevant to particular (a). 87Ms McDonald observed that the original application for order included an allegation that the defendant had failed to apply its own working at heights protocol. This failure was not included in the amended application for order. I would also observe that there was no particular alleging a deficiency in the risk assessment. 88I ruled that the protocol was not relevant to particulars (a) and (b). It was not contended that the protocol contained a checklist in accordance with Appendix J to AS4576:1995. The defendant conceded that the protocol was relevant as background material. I propose to approach this material with caution and do not intend to take it into account in determining the objective seriousness of the offence, as the objective seriousness should primarily be determined based on the charge and the particulars. To do otherwise would place the defendant in an unfair position, particularly in circumstances where it had not been alerted by the prosecutor that it had intended to rely upon the protocol and had not been provided with any opportunity to consider whether it wished to adduce any additional evidence in respect of this document. 89In my view, the failures to which the defendant has pleaded are narrow in scope reflecting the limited role that the defendant had with the installation of the scaffolding. It is not alleged that the defendant should have undertaken an inspection itself. An inspection of the scaffolding was undertaken by Blue Water, an entity with the relevant expertise in scaffolding. It failed to identify the deficiencies in the scaffold. 90Ms McDonald submitted that the defendant's culpability was limited when the following factors were considered: (i) The installation of scaffolding at the mine involved the installation of non routine equipment at the mine; (ii) Scaffolding was not used routinely below ground - the work of installing the roof support was usually undertaken by the employment of a QDS platform and basket; (iii) There was no person at the Douglas project with the skills or training to design and install the scaffolding; (iv) It was known that the installation of scaffolding required specific training, qualifications and required certification of the scaffolding before use; (v) The work of installing the roof support was part of the outbye services - this work was the responsibility of the contractor Delta Services Pty Limited; (vi) Delta's project co-ordinator David Loach approached Bob Madeley from Endeavour and proposed the use of scaffolding to install the support. Bob Madeley raised with Mr Loach, Endeavour's requirements for the scaffolding which included having a sign off that the scaffolding had been assembled according to the scaffold design; and (vii) There was no direct contractual relationship between Endeavour Coal and Waco or Blue Water Scaffolding. 91Furthermore, Ms McDonald submitted that the defendant took the following steps: (i) Estimated the expected maximum load on the scaffolding which included bolter thrust, materials and people; (ii) Required a 2 to 1 safety factor of the estimated load; (iii) Required competent and relevantly experienced scaffolders to be engaged; (iv) For procedures and documentation to be completed - such as the risk assessment and safe work method statement; (v) Have the design certified by a chartered civil engineer; (vi) Have a sign over to confirm that the scaffolding had been assembled in line with the scaffold design. 92Mr Madeley's evidence was that he was informed before the engagement of Waco and Blue Water that they had been selected because they had undertaken prior scaffolding work underground at the Douglas Project. 93The requirement of a signoff was communicated by Mr Madeley to Mr Loach. This requirement was evident as it was included in the shift instructions prepared by Delta and included in Delta's weekly plan. 94The defendant recognised that it did not have expertise in scaffolding. It therefore relied on those with the relevant expertise. The risk assessment process undertaken involved not only Delta employees, but also representatives from Waco and Blue Water. Although the risk assessment focused on the task of installing the mega bolts, the identified controls for the risks arising from the installation and dismantling of the scaffolding were "scaffolding company standards and procedures". 95The defendant relied on Delta and Southern Colliery to follow its requirements, in particular, the instruction that a sign over confirming that the scaffolding had been assembled in line with the scaffold design be obtained.
Foreseeability 96The defendant did not dispute that, objectively, it was foreseeable that an absence of a proper inspection of scaffolding where there had been a failure to properly erect the scaffold would lead to a risk that the scaffold would collapse and injure non-employees. 97The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence : Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [81]; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27]. 98However, the defendant submitted that, assessed subjectively in circumstances where it relied upon others with expertise, and that one of its requirements was a sign off by the contractors that the scaffold complied with the design be obtained, the Court would not find that the defendant would have reasonably foreseen that risk. In other words, assessed subjectively whether a defendant should have reasonably foreseen the risk, the defendant could not have reasonably assumed that the experts it relied upon would not determine the deficiency in the scaffolding. To conclude otherwise, Ms McDonald submitted, would require an examination by the defendant of the expertise, knowledge and involvement of the entities with that expertise. 99Ms McDonald submitted that in this respect whether the defendant could have subjectively foreseen the risk should be taken into account in mitigation. 100Foreseeability is an objective consideration which may go to aggravation or mitigation. It assists in the determination of the objective seriousness of the offence and a defendant's culpability: see Shannon v Comalco Aluminium Limited (1986) 19 IR 358 at 364; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 at 450. If the "experts" so described by Ms McDonald did not have the expertise to properly check that scaffold complied with the design drawing, this is a mitigating factor in the objective seriousness of the offence and reflects upon the contribution of the defendant to the incident. However, the evidence in the proceedings does not enable such a finding to be made. 101Ms McDonald did not caval with findings made in respect of other entities involved in the incident that the particular risk was objectively reasonably foreseeable. 102Indeed it was foreseen by the defendant, who raised with Mr Loach of Delta, the need for a sign off that the scaffold had been assembled according to the design drawing. 103Ms McDonald emphasised the role and place of the defendant in respect of this particular offence. Senior counsel submitted that the defendant was entitled to have its reliance on the experts taken into account. The statement of agreed facts provides that the decision to have Southern Colliery contract Waco, meant that Waco did not undergo the Illawarra Coal assessment provided by the Illawarra Coal CMP. However, the defendant did require Southern Colliery to review Waco's OHS Management Plan. Mr De Leeuw, an employee of Southern Colliery, did conduct this review. Mr De Leeuw also performed a check of the scaffolder's qualifications. 104Although damage or injury to employees does not of itself dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia at 428; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]. In the present case, Mr Evans, as a result of the incident, suffered serious injury. 105The seriousness of the risk , its foreseeability, and the ease of removing that risk, renders this offence to be a serious breach of the OHS Act . However, in light of the submissions of Ms McDonald, I propose to adopt the observations of Walton J, Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [241], [242] in determining the defendant's culpability. His Honour stated: [241] There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety ( McDonald's ) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); Workcover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; Workcover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; Workcover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and Workcover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316. [242] The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald's at 437. Such an analysis may assist in understanding the reasonableness of the defendants' actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution. However, in sentencing, a factor, such as a lack of control by a defendant employer engaged on a multi-employer worksite, will normally not result in a significant diminution in the objective seriousness of an offence: Morrison v Waratah at [46]. It will be plain from the foregoing discussion that it would be wrong, in law and principle, to approach such considerations as if some apportioning of the overall penalty between the defendant and the other entity was being undertaken by the Court (see Morrison v Waratah at [46] and Morrison v Powercoal (2005) at [123] and [124]). 106In addition to the factors relating to this offence, the Court is required in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that included an element of general deterrence. 107I consider it is appropriate to once draw attention to the need for employers and contractors working in any industry where scaffolds are regularly erected and dismantled that they must comply with the Australian Standard. Employers and contractors must ensure that a proper inspection of the scaffold, after it is built and prior to it being used, occurrs. Furthermore, it is encumbent upon employers and contractors to ensure a properly completed Handover certificates are provided. It is therefore appropriate that I give weight to the need for general deterrence in determining penalty. 108In relation to specific deterrence, I accept that the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following the incident are relevant, as is the propensity for the defendant to re-offend. Subsequent to the incident, the defendant has initiated a number of measures to minimise and/or eliminate the risks associated with contractors installing scaffolding, including: (i) immediately after the incident a further risk assessment was undertaken for the work. The defendant required Waco to attend the site to undertake rectification work on the scaffolding. Issues arose from the rectification work undertaken by Waco and there was a meeting held between Waco's General Manager, the Vice President of the defendant and Mr Madeley which resulted in Waco issuing a letter outlining corrective actions to prevent reoccurrence of the incident; (ii) there was an onsite review which identified issues with the operation of the CMP. It listed issues requiring amendment from the CMP. However the onsite review found that with plant and equipment routinely used at the site the contractor equipment inspection checklist and other relevant checklists were complied with but in respect of scaffolding although there was knowledge of the need for competent scaffolders to be employed, there was less knowledge of the inspection requirements under the Australian Standard and the requirement of tagging off; (iii) the defendant, as part of Illawarra Coal, reviewed the procedures and documents underlying the CMP and has developed the Working with Contract Partners Framework. There has been extensive education connected with the rolling out of this new framework.
Subjective considerations 109There are a number of relevant subjective considerations. Mr Strickland in oral submissions, acknowledged: ... there is no doubt that the defendant has a proactive approach, a positive, proactive approach to occupational health and safety matters. It had that approach before there incident and it has it after the incident and we accept that in the events leading up to the incident on 7 July, the defendant took a number of significant steps to ensure that appropriate measures were in place, appropriate safety measures were in place in relation to the scaffolding. We also acknowledge since the incident further rectification was carried out to minimise or reduce any risks in relation to a similar event occurring again and that is all very positive on behalf of the defendant. 110Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 provides for mitigating factors to be taken into account in determining the appropriate sentence. 111Relevant for these proceedings are the following sub-paragraphs: (a) the offender was a person of good character - the defendant has no prior convictions; (b) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise; (c) the remorse shown by the offender for the offence; (d) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or any other manner; (e) the plea of guilty by the offender; (f) the assistance by the offender to law enforcement authority.
The defendant is of good character 112The defendant has no prior convictions although it operates in an inherently dangerous industry. The occupational health and safety systems that have been in place and the changes that occurred after the incident demonstrates that it has a history of very good industrial citizenship. This is an important matter to be taken into account on sentence: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 at 161. 113There was an occupational health and safety system in operation at the time of the incident. It was a comprehensive system which was detailed in the affidavit evidence of Mr Madeley which I have summarised earlier in this judgment. The system commences at the top with adoption of key elements of an occupational health and safety system and then is developed through the corporate structures to the individual workplaces. The system involved not only the systems of inductions, fatal risk protocols risk assessment, safe work method statements, training but also consultation with its workforce through occupational health and safety committees and meetings. 114Mr Madeley's evidence set out the different campaigns utilised for safety including the Watch program, safety days and completion of personal behaviour charts. 115In addition, the defendant is a good community citizen as demonstrated by its financial and non-financial contributions to charities and community organisations. 116I respectfully agree with the observations of Kavanagh J that a court can give positive considerations to the corporate reputation and personal reputation of its directors and find that it has probative force to allow a measure of mitigation of penalty: Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295 at [23]. 117I also find that the evidence establishes that the defendant is unlikely to re-offend, particularly when the matters that I have earlier referred to in dealing with specific deterrence are taken into account.
The offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner. 118Mr Strickland submitted that firstly, Mr Madeley had been reluctant to accept that there was deficiency in the daily planning documents and secondly, that his evidence that the defendant had contracted the work to experienced scaffolders in Waco demonstrated a failure by the defendant to accept full responsibility for the incident. 119I have reviewed the evidence given by Mr Madeley and I reject counsel's contention that there was any failure on his part to accept full responsibility for the incident. Mr Madeley, as his evidence demonstrates, was intimately involved in the rectification work. This included ensuring that the rectification work was properly inspected. This led to further deficiencies being discovered and further rectification work being required. Mr Madeley oversaw this work and the introduction of the remedial steps taken by the defendant, set out earlier in these reasons. His conduct in my view, demonstrates that he was particularly concerned to ensure that a similar incident did not occur in the future. I find that Mr Madeley took full responsibility with respect to the failures which led to the incident on 7 July 2006. In addition, present in Court during the sentencing hearing, was Mr Anthony Holmes, Manager Group Legal, BHP Billiton, and Mr Colin Bloomfield, Illawarra Coal, President BHP Billiton. 120Ms McDonald also tendered a letter of contrition from the Board of BHP Billiton, Illawarra Coal dated 26 September 2006 signed by Mr Bloomfield. 121I find that the defendant has treated the incident and responded to the incident with extreme concern and formally expressed its concern and remorse for the incident. 122Its contrition is further demonstrated by the early indication of a plea of guilty.
Plea of guilty by the offender 123The defendant entered a formal plea of guilty to the amended charge at the earliest opportunity: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339. In accordance with the principles found in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, it is entitled to a discount of 25 per cent for the plea of guilty. 124I also note that the defendant fully co-operated with the Department during its investigation.
Parity 125Mr Strickland acknowledged that: ... your Honour has been aware of the defendants in the other matters and I accept that the failure of this defendant is different from the failure of the other defendants. Their particulars are different and their specific failures are different and have to be treated differently 126The contractual arrangements that occurred with respect to the mining at the Douglas Project were that ultimately Southern Colliery contracted with Waco to install scaffolding in the mine. Waco subsequently contracted with Blue Water. There was no contractual relationship involving the defendant and Waco, or the defendant and Blue Water. The only relevant contractual relationship involving the defendant with respect to the scaffolding was that Delta's employees performed some assistance during the installation of the scaffolding in the form of labour by handing up pieces of scaffolding to Stephen King and Danny King, who were employed by Blue Water. The particulars provide the key reference point for the role of this defendant in this incident. It had the most indirect responsibility of the various entities which have been prosecuted for failing to ensure that there was a proper inspection of the scaffolding after it was erected and prior to it being used. This defendant's failure was to ensure another entity, Blue Water, inspected the scaffold by reference to a recognised checklist and that it was tagged off before use. 127Its culpability, in my view, is less than that of Delta, the employer of Mr Evans, who pleaded guilty to a breach of s 8(1) of the OHS Act : see Inspector Regan v Delta Mining Pty Ltd [2011] NSWIRComm 107. Delta was offered, but declined the scaffold work because it did not have the skills or expertise to install the scaffolding. This led Southern Colliery contracting Waco to undertake the work. Waco subsequently subcontracted the work to Blue Water. 128The principle of parity which is applicable in this matter was succinctly stated in the joint judgment of Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at 301-302 as follows: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. 129Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
Victim Impact Statement 130Mr Evans provided a victim impact statement setting out the impact upon him and his life as a result of the injuries suffered in the incident. Mr Evans stated after falling several metres onto a moving conveyor belt, he sustained two dislocated shoulders, with fractures to his left shoulder and tendon tears to his right shoulder. 131Some of the consequences arising from the incident included "he did not have a decent night's sleep for over three months after the incident due to the pain in both shoulders"; "was unable to shower and dress myself without help for a considerable time"; "after six months of rehabilitation I had to have a reconstruction of my right shoulder"; "unable to drive my car for two months after the accident and also after the operation"; "underwent almost three years of physiotherapy and rehabilitation"; "suffered some emotional and psychological issues which have lessened over a period of time. This affected my marriage but things are all good now"; "loss of income while on workers compensation and unable to do overtime"; "unable to work in the mining industry again"; "unable to surf due to the pain and discomfort it causes"; "unable to do any work or activity above shoulder height due to pain and discomfort"; "disappointment and resentment towards the people responsible"; "they did not contact me to apologise or enquire about my health at all after the accident." 132In Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182 at [138] I observed: Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life. 133As the defendant has no prior convictions, the maximum penalty is $550,000. 134Taking into account all of the above matters and the evidence relied upon by the parties, I impose a penalty of $65,000.
Costs 135The prosecutor seeks costs and a moiety, which I propose to grant, except in respect of the notice of motion filed by the defendant in this matter where each party should pay their own costs.
Orders 136I make the following orders:
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. Decision last updated: 28 October 2011
Regan
Endeavour Coal Pty Ltd
(2002) 209 CLR 339
(2000) 49 NSWLR 610
(2000) 99 IR 29
(2000) 99 IR 159
(1999) 92 IR 8
(2009) 186 IR 125
(1999) 90 IR 464
(2005) 141 IR 465
(2003) 130 IR 364
(1997) 189 CLR 295
(2000) 49 NSWLR 383
(1986) 19 IR 358
(2000) 95 IR 383
(2004) 60 NSWLR 168
(1999) 90 IR 432
(1993) 47 IR 1
(1996) 83 IR 446
(1998) 82 IR 118
(1999) 90 IR 397
(2000) 99 IR 163
(2001) 110 IR 34
(2002) 112 IR 312
(2002) 116 IR 158
(2001) 109 IR 316