Rodney Dale Morrison v GPR Engineering

PROSECUTOR: Mr M Scott of counsel Department of Mineral Resources LEGAL REPRESENTATIVES: DEFENDANT: Mr S Benson of counsel Penmans Solicitors

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: STAUNTON J DATE: 21 February 2003

RODNEY DALE MORRISON v GPR ENGINEERING (CENTRAL COAST) PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983. EXTEMPORE JUDGMENT [2003] NSWIRComm 56

1 This matter concerns a prosecution laid by Mr Rodney Morrison, an authorised officer on behalf of the Department of Mineral Resources.

2 The defendant entered a plea of guilty to the offence as charged on 27 September 2002 before Haylen J. The offence involves a breach of s 15(1) of the Occupational Health and Safety Act 1983 ('the Act'). The offence as expressed says that, on 13 June 2000 the defendant: FAILED TO ensure the health, safety and welfare of work of all of its employees, in particular Mr Rodney Welsh.

3 In particular, it is said the defendant: (1) failed to provide or maintain a safe system of work for the re-installation of the crusher main frame inside the quarry's primary crushing plant that was, or were, safe and without risks to safety. (2) failed to provide such information, instruction and supervision as may be necessary to persons carrying out the re-installation of the crusher main frame; (3) failed to undertake any, or any proper risk assessment of the work that Rodney Welsh was required to undertake; (4) failed to ensure any, or any appropriate supervision of the work being performed by Rodney Welsh; (5) failed or omitted to institute a system of work that regulated the hours of work Rodney Welsh was required to undertake; (6) failed or omitted to provide proper instruction and/or training in risk identification assessment and control.

4 In the proceedings before me, the prosecution tendered an agreed statement of facts that included an Investigation Report prepared by Mr Paul Hamson and Mr Walter Koppe for the Director-General of the Department. That Report is an extremely thorough report and they are to be commended for it.

5 The agreed facts, together with the Investigation Report, provide an extremely comprehensive overview of this matter addressing the circumstances of the accident, the major causal factors of it, the action taken by various parties post the accident, as well as many other technical details.

6 A number of photos are included in the Investigation Report. These photos have greatly assisted me is understanding the layout of the mine site where the accident occurred and the precise nature of the machinery involved.

(1) At all material times the Defendant employed Mr Rodney Welsh ("the worker"). (2) The Defendant was engaged in the business of providing recruitment, labour and hire and administrative services. (3) At all material times the Defendant hired out the services of Rodney Welsh to ACR Maintenance Pty Limited as a leading hand/maintenance fitter holding both crane and dogman tickets. (4) ACR Maintenance Pty Limited had been contracted to provide a maintenance crew to maintain all production related fixed plant and infrastructure at the Boral Quarry at Emu Plains in the State of New South Wales ("Boral Quarry"). (5) In or about mid June 2000 ACR Maintenance Pty Limited was undertaking maintenance and repair work on a TX Jacques Crusher mainframe at the Boral Quarry which was situated in the primary crushing plant. (6) On or about 11 June 2000 the crusher main frame had been removed from the primary crushing plant. It had been transported by mobile crane to the quarry's workshop where work had been carried out on it. (7) On 13 June 2000 Rodney Welsh attended work at Emu Plains Quarry and was assigned by Alex Colvin (ACR Maintenance Pty Ltd, Management Supervisor) to assist in the re-build of the TX Jacques Crusher. (8) On 13 June 2000 at about 2pm Rodney Welsh was working as part of a four man team responsible for re-installing the TX Jacques crusher main frame inside the Boral Quarry Primary Crushing Plant. (9) Rodney Welsh was working with Mr Perkins (fitter), Derek Collins (Apprentice Fitter) and Alex Colvin (ACRM Maintenance Manager and Supervisor). Rodney Welsh worked under the direct supervision of Alex Colvin whilst working at the site. (10) On 13 June 2000 Rodney Welsh assisted in the re-assembly of the crusher main frame in the workshop. When this was completed the crusher main frame was lowered by the workshop overhead crane onto the concrete floor of the workshop. (11) Alex Colvin then drove a Franna mobile crane into the workshop. Rodney Welsh then changed the chain slings attached to the crusher main frame from the overhead crane hook onto the hook of the mobile crane. Whilst doing this Rodney Welsh was seated on the outer rim at the top of the crusher main frame. (12) Rodney Welsh then dismounted from the crusher main frame. The crusher main frame was transported from the Quarry's workshop to an area adjacent to the primary crushing plant via a mobile crane driven by Alex Colvin utilising chain slings. It was placed on the ground beneath an overhead crane which extended outside the primary crushing plant. (13) The primary crushing plant had an overhead crane mounted within it. This overhead crane moved along a monorail which extended from within the plant to approximately 1.5 metres outside the Northern external wall of the plant. (14) The crusher main frame was placed on two wooden sleepers of uneven lengths. At all material times the ground upon which the sleepers rested was wet, muddy and uneven. (15) The top of the main frame was 2.05m in diameter whilst the threaded studs protruding from the bottom of the main frame (which were sitting on the sleepers) were on a pitch circle diameter of 0.5m. The main frame weighed approximately 12 tons. At all material times the dimensions of the main frame were such that when it sat on its hydra-set on uneven ground it was unstable. (16) The boom of the mobile crane was then lowered and the weight was taken off the chain slings. Rodney Welsh then tries to rock the crusher main frame with his hands to check if it was stable. (17) Whilst performing the re-installation Rodney Welsh climbed onto the crusher main frame and sat on the upper rim with his legs dangling inside. (18) Whilst performing the re-installation Rodney Welsh attempted to remove the chain slings from the mobile crane's lifting hook so that they could be transferred to the lifting hook for the overhead crane. (19) Whilst attempting to remove the chain slings the crusher main frame rolled onto its side causing Rodney Welsh to be trapped between the inner rim of the main frame and the boom of the mobile crane. (20) At the time that Rodney Welsh became trapped he suffered a serious crush injury to the pelvic region along with a severe open (compound) fracture/ligamentous injury to the left knee. (21) Rodney Welsh's abdominal and knee injuries were operated upon. Rodney Welsh was hospitalised from 13 June 2000 until 25 July 2000. (22) Rodney Welsh's injuries prevented him from resuming his normal work for a period in excess of seven days. (23) The Defendant has no prior conviction.

8 On Tuesday, 13 June 2000, Mr Welsh was working as leading hand maintenance fitter at the Emu Plains quarry. By all accounts, Mr Welsh was an experienced and skilled worker with a number of trade and technical certificates. He was working as part of a four-man team responsible for installing a crusher main frame inside the quarry's primary crushing plant following repair and maintenance work being carried out in the quarry workshop.

9 The crusher main frame was being transported from the workshop to an area adjacent to the primary crushing plant. This was done by mobile crane utilising chains and slings. When it reached a point adjacent to the primary crushing plant, the main frame was placed on the ground and beneath the overhead crane which extended outside the primary crushing plant. Mr Welsh, after checking the stability of the crusher main frame, using what is described as a 'rocking motion by hand', then climbed onto and inside the crusher main frame with his legs dangling inside.

10 As part of his task at this time, Mr Welsh was attempting to remove the chain slings from the mobile crane lifting hook, so that they could be transferred to the lifting hook for the overhead crane. While he was doing this, the crusher main frame rolled onto its side and Mr Welsh became trapped between the inner rim and the main rim of the boom of the mobile crane.

11 As a result, Mr Welsh suffered what is described as severe crush injury to his pelvic region, as well as a serious compound fracture and ligament damage to his left knee. He spent some six weeks in hospital. On the material before me, has recovered to a point where he has now returned to work - not with the defendant - although I will come to its role in his rehabilitation and other matters in due course.

12 Investigations by the Department of Mineral Resources identified the primary cause of the accident to be: · the failure to properly support and stabilise the main frame prior to Mr Welsh climbing onto and inside it; · a failure to provide a safe system of work for the performance of the job of removing and re-installing the main frame or the crusher; and · the inherent instability of the main frame in combination with the ground conditions at the scene of the accident.

13 On the latter point, one only has to look at the photographs to see the state of the ground owing to the amount of rain and the consequential unevenness and instability that clearly rendered the task at hand all the more vulnerable to accidents occurring.

14 On behalf of the defendant, affidavits with annexures were tendered from Mr Phillip Charles Rich and his wife, Mrs Gae Eveline Rich. Mr and Mrs Rich are both directors and equal shareholders in the defendant company. Mrs Rich is also the company secretary.

15 It is relevant, I believe, to put the defendant's role and liability into context as far as this particular accident and the evidence before me is concerned.

16 At the time of the accident the defendant was a relatively small labour hire company. It is no longer in business as such. At the relevant time it supplied labour to, amongst other companies, ACR Maintenance Pty Limited. For the purposes of these proceedings before me, and indeed for anybody else wanting to understand the various employment, supervisor and other relationships between the defendant and other parties involved in these proceedings, pp 15, 16, 17 and 18 of the Investigation Report sets out in diagrammatic form the interlocking relationships as between this defendant and other defendants vis a vis Mr Welsh. For ease of reference and understanding, p 15 of that Investigation Report setting out the relevant corporate relationships is attached to this judgment as Annexure A.

17 Given those relationships, it is not surprising that there are other corporate and personal defendants caught up in prosecution proceedings arising from the accident to Mr Welsh on 13 June 2000. Those corporate defendants still to be dealt with arising from this accident are: · Boral Resources (NSW) Pty Limited, · Boral Construction Materials Group Limited, · ACR Maintenance Pty Limited, · Australian Crusher Repairs Pty Limited. 18 Apart from the defendant before me, the current state of those other proceedings, and I say this advisedly, would appear to be that ultimately they will all proceed to be dealt with as pleas of guilty. Having regard to those interlocking relationships and the ultimate determination of liability and penalty, there is no doubt that, ideally, all matters should be dealt with together to ensure, as best as possible, some consistency of approach and outcome on those important issues.

19 Notwithstanding that, in this matter, the defendant has expressed a desire to proceed today.

20 The defendant has no prior convictions and it is agreed that the maximum penalty in this matter is $550,000.

21 In considering offences under the Act for the purposes of penalty, one must start by considering the objective seriousness of the offence. That principle is well settled and was expressed by a Full Bench of this Court in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464, more specifically at 476, where the Court had this to say: "In the case of an offence under s 15(1) of the OH&S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence when there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant." 22 Having regard to that statement of the Full Bench it much be said that in relation to this matter, Mr Welsh, on any view, is lucky to be alive when one has regard to the potential risk to safety as a consequence of this accident. 23 Further, the foreseeability of risk is particularly relevant considering the nature and relative magnitude of the task that Mr Welsh and his workmates were required to undertake on the day in question.

24 When considering all that is contained in the Investigation Report, one would have expected a proper risk assessment of the task would have been undertaken, despite the fact that the particular task of repairing and maintaining the crusher main frame was not undertaken often - according to the Investigation Report approximately once a year.

25 Reference to the photographs in particular assist the Court's understanding that what was confronting Mr Welsh and his workmates was a very big, cumbersome, heavy piece of machinery that had to be shifted from one place to another. When one considers that in more detail, there can be no doubt that primarily it was important to ensure that the piece of machinery was moved safely, that it was properly secured for the purposes of that process, and that it was absolutely stable while the task of moving it was undertaken. In the way in which that was done on 13 June 2000, that was certainly not the case.

26 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent the injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

27 As far as that point is concerned, one need go no further than pages 41 and 42 of the Investigation Report which set out the remediation steps undertaken by the various corporate defendants after this accident. In fairness to the defendant before me, the Report notes that the remedial steps taken by it since the accident is that GPR Engineering was: "actively involved in some of the measures taken by Boral and ACRM to prevent reoccurrence".

28 The major steps taken by way of remediation were clearly undertaken by Boral Resources who own the Emu Plains Quarry and not by the defendant before me or ACR Maintenance. The specific steps taken were: · a risk assessment of the task for future purposes; · a support frame was constructed and used for future transporting of the crusher main frame; · a concrete slab was erected beneath the overhead crane adjacent to the primary crushing plant. The latter step absolutely crucial, it would seem to me, to stabilise the crusher main frame before it is lifted.

29 In imposing a penalty in this matter regard must be had to general and specific deterrence. That much is evident from the decisions given by the Full Bench of this Court in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 particularly at paras [74] and [77]. The latter is a paragraph that, on behalf of the defendant, I have already been taken to. In para [74] the Full Court says in relation to general and specific deterrence, that: "We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process."

30 Para [74] goes on to state that "the judge must indicate with some precision" if excluding either of those aspects in his/her considerations. On that point para [77] states: "In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act."

31 The defendant has ceased to operate as a labour hire company. Indeed, as Mr Rich explained, he is now working alone doing engineering work - mostly machining and the production of components. I am satisfied that the defendant will not be in a position to commit a similar offence in the foreseeable future. While I take into account general deterrence as a factor in this matter, I do not consider that specific deterrence should be a significant component in any penalty that I impose.

32 Counsel for the prosecution emphasised the nature and extent of the obligations of labour hire companies to ensure the health, safety and welfare of their employees sent to work at a client's premises. It is a well settled area of the law. As the Full Bench stated in Drake Personnel t/a Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1990) 90 IR 432: " … an employer who sends its employees into another workplace over which they exercise limited control is for that reason under a particular positive obligation to ensure that those premises or the work done do not present a threat to the health, safety or welfare of those employees. Certainly there is no basis to consider that such an employer has a lesser liability or obligation under s 15(1)."

33 Further, the prosecution submitted, this was a serious offence. I agree. On any view, the matter is objectively serious and I propose to approach the consideration of penalty on that basis. In saying that, it is proper that I have regard to the decision drawn to my attention on behalf of the defendant of WorkCover Authority of NSW (Inspector Paul Mansell) v Orica Australia Pty Limited (2002) 116 IR 158 and more particularly at para [72] where Walton J, Vice-President said: "When determining an appropriate penalty for a defendant in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is primarily important to assess the nature and contribution of the defendant to the relevant risk: "

34 I have already commented on the interlocking relationship of the various corporate defendants, which is clear on the evidence before me.

35 Counsel on behalf of the defendant submitted, in effect, that Mr Welsh was an experienced and skilled employee and should have known better than to do what he did on the day in question. That may well be so but one has to be mindful of what this Court has had to say about employers' obligations notwithstanding what one might call the rather impulsive and on occasion, negligent behaviour of employees. I refer particularly to the decision of Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: "The very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry." 36 I come now to the material presented to me in Mr and Mrs Rich's affidavits -both are significantly detailed.

37 Mr Rich's deposes that he and his wife became equal shareholders in the defendant company and, as at June 2000, the date of this accident involving Mr Welsh, had been in business for some six years. At that time they were in business as a labour hire company and had approximately 30 employees. According to Mr Rich, at least half of those employees were boilermakers and half were fitters. Of those employees, six of them including Mr Welsh, were permanently supplied to one of the other defendants involved in this matter, ACR Maintenance Pty Limited and were permanently employed at the quarry site at Emu Plains.

38 Mr Rich, in his affidavit material, comments on the technical experience of Mr Welsh in his capacity as leading hand and maintenance fitter, and Mr Welsh's excellent work record. More particularly, Mr Rich outlined the role that he (Mr Rich) played in fostering the defendant's obligations in relation to occupational health and safety. The extensive material that was distributed to each employee is detailed in his wife's affidavit.

39 Mr Rich further records the practical steps that he undertook in discharging the defendant's occupational health and safety obligation. He states that he visited the various work sites at least once a month and had what he called a 'tool box' meeting with his employees that was, in effect, a safety meeting. At those meetings there was encouragement and every opportunity for employees to raise safety matters with him and he acted, as it were, as a form of work site delegate on behalf of his employees to take matters up with the relevant employers on their behalf. He says Mr Welsh had done this on at least two prior occasions and that he, Mr Rich, genuinely believed that his lines of communication as far as ability and willingness to observe occupational health and safety matters was very open, transparent and one that was readily accessible to all employees. I accept that affidavit material and it was not challenged by the prosecution.

40 I also accept that Mr and Mrs Rich, as directors and shareholders of the company were, to use their expression, 'personally devastated' by what happened to Mr Welsh - so much so that they are no longer in the labour hire business and ceased such a business as a result of this accident.

41 Mr Rich's affidavit goes on to say that, having inspected the site of the accident, he was very concerned about what he observed and, if he had been a supervisor there, rather than in the role that he perceived himself to be in, he certainly would not have allowed the system of work leading to the accident to take place as it did.

42 There is also considerable evidence in his affidavit, as well as Mrs Rich's, of the steps that were taken post this accident to tangibly assist Mr Welsh both in financial and rehabilitation terms as far as re-employment opportunities and training were concerned.

43 Mrs Rich's affidavit repeats some of what Mr Rich had to say, but does add by way of annexures, considerable documentation about the material that was given to each of the defendant's employees concerning occupational health and safety matters.

44 I believe it is relevant and important to highlight, as counsel on behalf of the defendant has done, page 32 of the Investigator's Report regarding his assessment of this particular defendant's approach to workplace policy and procedure matters. He reports as follows: GPR Safe Work Practice Policy and Procedures GPR also had safe work practice policy and procedures which appear to be identical in many aspects to those provided by ACR. When questioned in relation to this document the victim indicated that he had received it as separate documents over the last two years and had made use of it by "Looking and using basic safety knowledge." The general issue of risk/hazard assessment is addressed in at least two separate places in the document. The document appears to be of a reasonable standard and comprehensive considering the size of GPR as a company. Investigator's Comments Whilst the various manuals and work procedures developed by the companies did not contain a specific procedure for the job of re-installing the main frame they do address to some degree the issue of risk assessment. It would appear from the investigation that the victim and his supervisor did not receive adequate training in this area and in any case did not apply any of these principles in relation to ensuring the stability of the main frame.

45 This extract is positive for the defendant noting that it did have policies and procedures in place that were independently considered to be of a "reasonable standard and comprehensive considering the size of the defendant". Notwithstanding that, some aspects by way of risk assessment were not as thoroughly addressed as one would have expected.

46 Counsel for the defendant also asked me to take into account the financial circumstances of the defendant. It is a factor that I must, simply because s 6 of the Fines Act tells me I must. Section 6 of the Fines Act (1996) states: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

47 The affidavit of Mr Rich contained some information as to the joint assets of Mr and Mrs Rich. As well, there was a Balance Sheet for the defendant as at July 2002. What that material discloses is that, while the defendant has a modest positive net assets over liabilities, and Mr and Mrs Rich have a home and land on the Central Coast, the home is secured by a mortgage. As well, they have dependent children.

48 Counsel for the defendant drew my attention to the decision of Walton J, Vice-President, in WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 at para [86] where his Honour says: "Having regard to the aforementioned authorities regarding the relevance of the financial means of a defendant, I shall significantly reduce the amount of fine which would have otherwise been ordered to be paid by the defendant due to the defendant's limited means and impecuniosity."

49 There is no evidence before me that Mr and Mrs Rich as directors/shareholders of the defendant company are impecunious. However, I do accept that this company has modest and limited resources and having regard to my obligations under the Fines Act to take such matters into account, I will do so.

50 The plea has been entered at the earliest opportunity and the prosecution acknowledges that the defendant is entitled to a discount on that basis. I assess that discount at twenty-five per cent.

51 There are other features that it is proper I take into account and, in part, have been acknowledged by the prosecution. The defendant has no prior convictions. One could say it has not been in business for a great length of time. Nevertheless it does come, to use the expression generally referred to in equity, with "clean hands" as far as any prosecutions under the Act are concerned.

52 It is clear that the defendant, via Mr and Mrs Rich, have fully co-operated with the investigation in this matter and have done all that they possibly could to assist in that regard. I do accept that there is genuine remorse on behalf of Mr and Mrs Rich as the shareholders of this company and they have given every practical and positive assistance to Mr Welsh in his recovery process.

53 Taking these features into account I determine a further discount of ten per cent.

54 Taking into account all the matters that I have referred to, I determine a notional penalty in this matter of $40,000. In applying the discounts I have determined, I determine a final penalty of $26,000.

Orders 55 I make the following orders: (1) The defendant is convicted of the offence as charged. (2) I impose a penalty in this matter of $26,000. (3) I allocate a moiety to the prosecution on the usual terms. (4) Costs as agreed or assessed. ---------------------------------

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