Rodney Dale Morrison v Marathon Tyres Pty Ltd [2007] NSWIRComm 77 | Case summary

1 On 28 May 2004, Paul Strong was working with Jason Richards at the Mount Thorley/Warkworth Mine near Singleton. They were both employed by Marathon Tyres Pty Ltd ("Marathon Tyres") and on that day having replaced a tyre were engaged in the task of attempting to refit the rear wheel of a large earthmoving vehicle. The tyre was of large dimensions and weighed approximately four tonnes. To perform this task, Mr Strong and Mr Richards were operating a vehicle loading crane fitted with a tyre handler attachment. In the course of bringing the wheel on to flat ground, the wheel came forward and crushed Mr Strong against the service vehicle. Mr Strong subsequently died of these crush injuries. 2 An investigation into the accident was conducted by the Department of Primary Industries (formerly the Department of Mineral Resources). As a result of that investigation, Rodney Dale Morrison Director, Mine and Forest Safety Performance of the Department of Primary Industries, a person who had been appointed an Inspector pursuant to s 47A of the Occupational Health and Safety Act 2000, instituted proceedings against Marathon Tyres alleging a breach of s 8(1) of the Occupational Health and Safety Act. The Application for Orders particularised the risks as being: employees were exposed to a risk of being struck by parts of the vehicle loading crane and its loads, and employees were exposed to a risk of being crushed by a tyre and the rear of the service vehicle which housed the vehicle loading crane. The particulars of the failure were specified as follows: (1) a failure to ensure that employees undertook a safe system of work in relation to changing tyres whilst using a vehicle loading crane; (2) a failure to ensure employees did not stand in a position between the tyre and the service vehicle on which the vehicle loading crane was mounted during the tyre removal and replacement process; (3) a failure to ensure employees did not enter the area in which a tyre was being removed or replaced, leaving it to the discretion of employees as to where those employees stood during the tyre removal/replacement process; and (4) a failure to undertake an adequate assessment of the risks involved in tyre removal/replacement by use of a vehicle loading crane. 3 On the first occasion the matter was before the Court the defendant had not yet received the entirety of the prosecution brief and was therefore unable to fully consider the matters raised against it. On the second occasion the matter was listed before the Court, the defendant entered a plea of guilty to the charges as particularised This judgment deals with the evidence and submissions on sentence. The judgment in this matter should be read in conjunction with the judgment of the Court in Rodney Dale Morrison v Rio Tinto Coal (NSW) Pty Ltd [2007] NSWIRComm 78 being related proceedings concerning the alleged breach of s 8(2) of the Occupational Health and Safety Act by the operator of the Mount Thorley/Warkworth Mine. 4 The evidence for the prosecutor comprised of: an Statement of Agreed Facts; a bundle of documents made up of photographs, a sketch plan of the accident, a view of the accident site with relevant dimensions, a plan of the mine site workshop and vehicle service bay; safe working procedures; a risk assessment prepared for the day of accident; a Coal and Allied work permit for Mr Strong and Mr Richards to work on the day of the accident; Victim Impact Statements prepared by Mr Strong's mother Carolyn Strong, his father James Strong, his brother Daniel Strong and his wife Leah Strong. The Statement of Agreed Facts appears as an annexure to this judgment. 5 A record of prior convictions showed that, on 13 March 2006, the defendant had been convicted by the Chief Industrial Magistrate of a breach of s 8(1) of the Occupational Health and Safety Act relating to an incident in October 2003 and had been fined the sum of $24,000. The particulars of that offence were a failure by the defendant to ensure that the system of work relating to the storage, handling and use of a particular solvent at the site was safe and without risk to the health of its employees, a failure to ensure that the working environment of its employees in and around the earthmover tyre chamber at the site was safe and without risk to health and a failure to provide such information, instruction and training to its employees in relation to the use of the solvent in the tyre repair process as was necessary to ensure the health and safety at work of its employees. The site was the workshop at Mount Thorley. The defendant's employee involved in this incident was classified as a branch manager/tyre repairer, and in the course of repairing a tyre using the solvent from a plastic squeeze bottle, vapour from the solvent ignited and the employee suffered "full thickness burns to both his hands and forearms up to the elbow and light burns to the right side of his face", requiring seven days' hospitalisation and an inability to return to work for approximately three weeks. 6 The defendant engaged outside consultants immediately after the accident "to rigorously investigate the cause of the incident" because it was difficult to identify the source of the ignition. Amongst the contributing causes identified by the WorkCover Authority was the lack of a local exhaust to prevent build-up of vapour and the absence of equipment such as rubber gloves, eye protection and respirator. The Chief Industrial Magistrate noted that the defendant provided the Court "with substantial and impressive evidence relating to the occupational health and safety policies and procedures established by the defendant over the 35 years that the company" had been in operation. That record was described as "outstanding" and as indicating that the defendant was not an employer that was "cavalier or indifferent" to its obligations under the legislation. Its previously unblemished record was regarded as by no means accidental and demonstrated an impressive level of vigilance concerning occupational health and safety obligations. While the occurrence of this incident was regarded as inexplicable having regard to the that history, the Chief Industrial Magistrate noted that, following the incident, the defendant's actions were "prompt, extensive and appropriate" in addressing the risk exposed. While the offence was found to be an aberration, it was found to be in the "medium to high range of matters" coming before that Court. The fine of $24,000 was reduced by 25 per cent because of the early plea and was imposed in the circumstances of a jurisdictional limit of $55,000 in relation to an offence carrying a maximum penalty of $550,000. 7 For the defendant, two affidavits were read: the first by Shayne Andrew Mackie, the Mount Thorley area manager for the defendant; the second by Gregory Michael Nesbitt, the general manager and director of the defendant. 8 Mr Mackie's duties included managing the overall operation of the Mount Thorley business, assessing the competence of tyre fitters at the site, supervising the performance of the defendant under its contracts and overseeing the occupational health and safety systems, including liaison with the defendant's external occupational health and safety consultants and internal occupational health and safety managers. Mr Mackie had commenced with the company in 1984 when it was known as East Maitland Tyre Services and had worked in a number of capacities, including performing work as a tyre fitter's offsider on earthmoving equipment. He was service manager at the defendant's Mount Thorley branch between 1998 and 2003 where the workforce grew from four to 24 tyre fitters. The defendant's clients grew so that, by the end of 2003, there were a number of mining clients of the defendant. 9 In relation to the defendant's business, Mr Mackie noted that it traded and had businesses throughout Australia and had been engaged in the tyre fitting business for over 30 years. A significant proportion of its business was in the sale and repair of off-road tyres for earthmoving machines involving changing tyres on heavy equipment such as loaders, mine dump trucks and large forklifts. The defendant's employees at Mount Thorley serviced mines in the Hunter Valley owned and managed by Coal and Allied Pty Ltd ("Coal and Allied") and its related company Rio Tinto Coal (NSW) Pty Ltd ("Rio Tinto") and also mines operated by Roche, Bloomfield Collieries and Thiess. On the day of the incident, the defendant had been a long term contractor to Coal and Allied and Rio Tinto at the company's Mount Thorley/Warkworth Mine. 10 The tyre being changed on the night of the incident was used on large earthmoving equipment and was approximately 3.5 metres in diameter, a metre wide and weighed approximately 4 tonnes when fitted to a rim. Mr Mackie described the process of fitting large earthmoving vehicles, a process involving some 15 separate steps. The work of tyre fitting at mine sites in the Hunter Valley usually involved employees working in pairs with one designated as the operator (who was the leader and more experienced of the fitters and was responsible for the mobile operation of the tyre handling crane or forklift) with the other referred to as the "offsider" who assisted with various tasks under the direction of the operator. The machinery used to change the tyre was known as a "Vehicle Loading Crane" ("VLC") tyre handler. The VLC used in this incident was a standard Volvo truck with a modified tray on which was mounted a 50 tonne HIAB crane. The crane was fitted with a tyre handler rather than a hook and used two arms and hands to hold and rotate tyres up and down through 180 degrees. The truck was fitted with four stabilisers deployed prior to the lifting operation in order to keep the truck stable while the crane was lifting a load. All components were driven hydraulically. The service truck had to be parked approximately 4.5 metres from the earthmoving vehicle to perform the tyre changing task. 11 The crane and hands were generally remotely operated by the operator using radio controls strapped to his waist. Duplicate lever controls were provided on the side of the crane towards the rear of the truck's tray. The control levers on the radio controlled box were spring loaded so that movement of the crane ceased immediately the operator took pressure of the levers. These mechanisms on the crane, in use on the night of the incident, were tested and were found to be without fault. 12 A description was given of the incident on the night of 28 May 2004 in more detail than set out in the Statement of Agreed Facts. The team arrived at the mine shortly after 6.00 pm and completed a permit to work while in the workshop foreman's office. There were two vehicles to be repaired and the team completed a risk assessment for that work. That documentation was given to the Rio Tinto supervisor at the workshop. The unavailability of pre-fitted tyres as replacements led to the extension of the task on this night -ultimately, two tyres had to be replaced rather than one. At approximately 10.30 pm, in the process of putting the tyre on the earthmover, Mr Strong was unable to line up the tyre with the wheel hub and asked Mr Richards to gather some timber so that he could bring the tyre assembly off the hub and lie it down on the timber, then reposition the grab hands of the VLC tyre handler and so present the tyre squarely to the hub. Mr Strong was standing facing the hub of the earthmoving truck between the hub and the rear of the VLC tyre handler vehicle and using the VLC remote control strapped to his waist. Using the remote control, the tyre was brought off the hub and towards him. The hands were rotated so that the lower edge of the upright tyre was tilting upwards and towards Mr Strong with the upper edge tilting backwards towards the mining truck. At this point, Mr Richards turned away to deal with the wooden blocks and, when he turned back, Mr Strong was pinned against the rear of the tyre handler vehicle by the large tyre. Mr Richards could not release the remote control box from Mr Strong's waist and failed to manipulate the manual controls that could have transferred the operation of the crane apparatus from the remote control box to the manual levers. Mr Richards then ran approximately 200 metres to the Mount Thorley control room and raised the alarm. 13 Detailed evidence was then given of the defendant's safety system prior to the incident and a very large amount of documentation was presented to the Court with counsel helpfully indicating key aspects of that system. There was a very substantial occupational health and safety manual applicable to the defendant's nationwide business and there were safe working procedures for tasks relevant to tyre fitting operations and the identification of hazards by way of risk assessments. There were toolbox talks, a system of on-the-job training and the use of a buddy system with experienced employees, the engagement of outside consultants and random on-the-job safety observations of tyre fitting teams performing the work. Tyre fitting employees were inducted into the safe working procedures at the various mine sites at which they worked and often held industry specific licences such as Heavy Vehicle Driver Licences. The material presented to the Court showed that the safety system was not only extensive but was actually monitored to ensure and to encourage compliance. 14 It was of some significance that safety observations were carried out by mine staff employees as part of the mine owner manager's responsibilities under various legislation. A tyre fitting manual was under development by the defendant at the time of the incident. The defendant had also worked closely with Rio Tinto prior to the incident to develop its risk assessment and safety procedures in order to obtain approval to work at Rio Tinto's mine site. In particular, attention was drawn to the detail of the safety observation audit sheet (with numerous examples of completed audits made available to demonstrate how the system operated in practice) and the manner in which the risk management procedure operated. That procedure required, where possible, at least two people to be involved in the risk management process and attention was directed to both risk ranking by reference to considerations of "probability" and "consequences". The mobile equipment procedure covered cranes and provided guidelines that were to be followed in order to help minimise the risk of accidents involving mobile equipment. Apart from the necessity for licences and being aware of their surroundings crane operators were to ensure that they did not suspend a load or travel a load over a person nor were they to lift or suspend a person from the crane attachment. There was considerable evidence about the training system. 15 The defendant's worksheet for bolting and unbolting of earthmover tyres identified unplanned movements as a hazard when commencing a tyre change. That type of movement was said to be likely to form a certain catastrophic result and the control measures identified was to isolate the machine in accordance with the isolation procedure including the chocking of wheels and locking the articulation pin if necessary. That document did not identify the risk that arose involving Mr Strong. The worksheet identified removing the tyre, removing the inside tyre and fitting the inside tyre as being subject to the hazard of the tyre falling but the control measures and actions required were to secure the tyre in the tyre handler grabs. Again, the risk that was present involving Mr Strong was not identified. 16 The operation of a VLC required a WorkCover licence. Mr Mackie had arranged for an external trainer to instruct the defendant's employees for the purposes of obtaining such a licence. Mr Mackie was aware that courses for training for a VLC ticket available at the time used a VLC with a hook apparatus and not one with tyre grabs. He formed the opinion that training was insufficient to cover the operation of the VLC with the tyre handler. Mr Mackie required the defendant's employees to be trained in the use of tyre grabs and was present when a group of the defendant's employees, including Mr Strong, were trained. In the course of that training, the defendant's employees were instructed not to get between the crush points, not to duck under the outrigger, not to get themselves in between the tyre when bringing it to sit it down on the ground, not to stand under the boom and not to get themselves in a situation they could not get out of. If they were slewing to the right hand side, they were instructed not to stand and slew over the top of their heads - they were to stand outside the path or stand on the other side of the truck. If there was not enough room for employees between the tyre and the service vehicle, they were instructed not to stand in that position. They were instructed to stand away from the boom and to have themselves in a situation where they could always get out of trouble. It was an obvious no-go zone to be standing between the vehicle when pulling a tyre towards the employee and, if the tyre was moving away from the employee, they were to stand where they had vision but were not to get into a crush or pinch point or under the boom. 17 Prior to the incident, Mr Mackie had discovered that there was no formal training course for tyre fitters regarding off the road and heavy mining vehicles. A mechanic could undertake a TAFE course to obtain accreditation but, in his opinion, there were no TAFE courses that could meaningfully complement the practical on-the-job training the defendant was providing to its off the road tyre fitters employed at Mount Thorley. In the two years prior to the incident, Mr Mackie was part of the six man working group the defendant had established with the aim of developing a comprehensive tyre fitter's manual. The manual was intended to be a module-by-module programme for delivery by internal technical specialists and external qualified trainers from a registered training organisation. The defendant was working closely with the Caterpillar Institute of Western Australia, a registered training organisation. Mr Mackie's intention was that Marathon's tyre fitters and other people from the industry external to the defendant would undertake the programme with registered training organisations and receive accreditation. This programme was meant to be finalised in approximately July 2004. Mr Mackie intended that the tyre fitting manual and training programme would complement the risk assessments, safe work procedures, toolbox talk meetings and on-the-job training processes already in operation under the defendant's safety system. The tyre fitting manual was completed early in 2005 because of other delays and, since that time, the defendant had used the manual as an internal tool to train its tyre fitters. The defendant was presently negotiating with New South Wales TAFE for certification of the programme. While the course is intended to be nationally recognised, at the present stage it would only be available to the defendant's employees. 18 There was a detailed safe work procedure that covered the work being performed by Mr Strong and Mr Richards on the night of the accident. Mr Mackie accepted that the safe working practice document was not prescriptive as to where the VLC operator should or should not stand during the various tasks being performed. The document did indicate where the offsider should be located and also required clear communications between the operator and the offsider. Prior to the accident, Mr Mackie had observed some defendant's operators standing in front of the hub of an earthmoving vehicle while operating the VLC to move a tyre with the tyre moving away from the operator towards the hub of the vehicle. At the time, he considered that this was necessary in order to obtain a clear view of the delicate task of placing the rim on the hub without damaging the tyre valve, brake and other components. He had instructed operators in this method. He was also aware that operators stood in this position for the same reason during the initial part of the wheel removal but he was not aware of any training or instruction to operators to remain in that position after the tyre had cleared the hub and was coming back towards the operator rather than moving away from the operator. Regrettably, that action was taken by Mr Strong on the night of the accident. 19 Following the incident, the defendant took a number of steps to address the risk so exposed and Mr Mackie identified some 26 such steps. Counselling was made available, a full internal investigation was commenced, all tyre changing activities at Mount Thorley was suspended for two weeks, an external safety consultant was engaged to review the safety systems, there was co-operation with the Department inspector as well as with Rio Tinto and counselling was made available to Mount Thorley staff. New safe work procedures for VLC tyre handlers and forklift handlers were established. Amongst other things the new safe work procedures prohibited operating the tyre handler while another person was in the tyre handler working area and a risk assessment was to be undertaken to define the tyre work area. There was to be utilisation of an appropriate barrier and barricades including signage and the barriers defining the work area were to be effectively maintained during the entire work procedure. No unauthorised personnel were to enter the tyre handler work area and all personnel were to be positioned so that they had a clear vision of the load: they were not to position themselves between any hard obstacle and the load to avoid creating a crush or pinch point nor were they to be positioned between any hard obstacle and the load if an uncontrolled release occurred thus avoiding the creation of a crush or pinch point. 20 There were toolbox meetings and training in the new procedures and, following that training, tyre fitters were required to complete a written assessment. Mr Mackie made particular mention of the fact that, in conjunction with a forklift truck manufacturer and Rio Tinto, the defendant had developed a forklift type handler machine that markedly improved the vision and safety associated with the tyre changing operation. The defendant had purchased two of these forklifts at a cost of approximately $370,000 each. Because of the nature of the forklifts and the fact that they could not be registered to be driven on public roads, they were stationed full-time on site. A special permit was required for freighting the forklifts due to their wide wheelbase. Because of these attributes, the forklift was not able to be moved from site to site for less frequent tyre changes - for this work and for transporting large tyres the defendant had continued using the VLC tyre handler vehicles in conjunction with the new safe working procedures and work methods developed since the incident. The defendant had also arranged for tyre fitters and supervisors to undertake hazard awareness training from an external provider well regarded in the mining industry. As a result of participation in this training, the defendant's employees obtain a nationally recognised certificate. Each month the management and staff at Mount Thorley reviewed a pre-existing risk assessment or formulated a new risk assessment for varied or new tasks, for instance where a manufacturer had brought out a new design of rim. 21 Each service vehicle is now fitted with a hydraulic isolator that isolates every function of the crane and is operated by individual locks and keys issued to tyre fitters and which can only be operated by the correct key. This system prevents any other person from inadvertently operating the machine. 22 Mr Mackie stated that Mr Strong was a colleague and a workmate. He expressed his deep regret for the incident and the loss of Mr Strong's life. He described the incident as being very upsetting and distressful for all of the men at the defendant's business and, in particular, those employed at the Mount Thorley branch. 23 Gregory Nesbitt was the general manager and director of the defendant having been a director since July 1998. Prior to that date, the defendant was not incorporated and operated as a partnership. Mr Nesbitt had been involved in the defendant's business and the tyre fitting industry for the past 18 years. Mr Nesbitt's father had started a small tyre retailer and tyre fitting service business with a business partner in East Maitland in 1970. In 1977, his father expanded and established the tyre fitting workshop at Mount Thorley with about six employees. At the time, the business held the sole distributorship rights for Michelin tyres within New South Wales. 24 Mr Nesbitt commenced employment with the defendant in January 1989 and between 1991 and 1997 he was the manager of the defendant's Mount Thorley operation. He became a partner in the business in 1992 and in 1994 the defendant's head office was opened at Sandgate, a suburb of Newcastle. By November 1997, Mr Nesbitt had moved from the Mount Thorley branch to the Sandgate head office taking up the position of National Earthmover Product Manager. Between 1998 and the end of 2003, the defendant's Mount Thorley operation grew from one premise and seven tyre fitters to two premises and 24 tyre fitters. This expansion coincided with the defendant gaining Rio Tinto as a client in late 1998. In July 1998, a majority of the defendant's shares were purchased by Alesco Corporation Ltd and, under a staged purchase, Alesco acquired all the shares in the defendant from Mr Nesbitt and his father by June 2001. After Alesco acquired its majority interest in the defendant Mr Nesbitt was employed as the National Earthmover Product Manager and had been the General Manager for the defendant since June 2001. 25 Mr Nesbitt described the principal business of the defendant as being the retail sale of car and light truck tyres; tyre fitting for cars and light trucks; tyre fitting and servicing on earthmoving vehicles in the mining industry; the sale of large tyres for earthmoving vehicles; tyre changing and service work in respect of heavy mobile machinery used in the ports of Sydney, Melbourne and Newcastle and the provision of tyre fitting services and specialised tyre fitting training to the Australian Defence Forces. The defendant's Off The Road division serviced mine sites and other clients with large earthmoving equipment. When the defendant established a branch at Mount Thorley, it had approximately six employees but now had 46 employees at Mount Thorley. The defendant was a long term provider of products and services to many large companies including Rio Tinto, Roche, Centennial Coal, Bloomfield Collieries, Thiess, Toll Holdings and the Daracon Group. The defendant had contracts with government agencies and the Defence Forces and supplied tyre rims and "run flat" technology for the Defence Forces armed personnel carriers. The defendant had approximately 147 employees throughout Australia with branches or trading subsidiaries in Mount Thorley and seven other locations. 26 The defendant's expenditure on occupational health and safety since 1994 showed a figure of over $350,000 in 2004, $440,000 in 2005, $510,000 in 2006 and $775,000 (projected) for 2007. Mr Nesbitt said that these figures incorporated money spent on staff resources (being salaries for dedicated occupational health and safety and training), training of staff, safety equipment and personal protection equipment, safety audits conducted by external consultants, payment for site specific safety inductions and drug and alcohol testing of the workforce. The increase in the figures since 2004 was largely explained by reference to staff resources: in 2004, the defendant employed only an occupational health and safety manager and in response to this incident it employed a special projects manager and, more recently, an in-house qualified trainer. 27 In 2005, the defendant spent approximately $740,000 purchasing two forklift tyre handler machines developed by the defendant in conjunction with Rio Tinto and the forklift manufacturer with the aim of creating an industry leading standard in relation to safety in tyre fitting activities for large earthmoving and mining equipment. Since the incident the defendant had spent on average an amount of $385,000 per year (in addition to the forklift tyre handler purchase) on capital expenditure items aimed at improving safety. These purchases included several self-locking jack stands at a cost of approximately $25,000 per unit, crack and failure testing carried out on VLC tyre handlers and other equipment and a complete overhaul, stripping back and re-building of the mobile tyre handler apparatus. 28 In relation to Mr Strong and his family, Mr Nesbitt pointed out that the defendant continued to pay Mr Strong's wages to his wife for approximately three months following the incident to ensure that money was going in to the home, particularly as Mrs Strong had a baby daughter. These arrangements were meant to give some support to the immediate family until insurance payments were available. In addition, the defendant established a trust fund with a $30,000 donation for Mr Strong's baby daughter. Throughout 2004, Mr Nesbitt kept in contact with Mr Strong's mother-in-law as to Mrs Strong's wellbeing. Mr Nesbitt also spoke to Mr Strong's wife during June 2006 about their ongoing welfare. 29 The incident involving Mr Strong resulted in a concerted effort by all staff and employees of the defendant to completely overhaul its systems of work with an even greater focus on occupational health and safety. Mr Nesbitt said that, as a result of the amount of work involved, he was confident that the defendant was now a "global leader in safety" in the inherently dangerous off the road tyre fitting industry. DELIBERATION 30 In relation to the objective seriousness of the offence, the prosecutor submitted that it was relevant to note the agreed fact that it was common practice for the tyre handler operators to stand in front of the hub of an earthmoving vehicle while operating the VLC to move a tyre when that tyre was moving away from the operator towards the hub and also that operators stood in this position during the initial part of wheel removal. It was said the operator stood in this position because they needed a high level of visibility to ensure that components such as brake linings and tyre valves were not damaged. The defendant's foreman and management knew that this practice occurred. Further, the safe work procedure relevant to this task indicated where the tyre fitter should stand but did not indicate where the tyre handler operator should or should not stand when operating the remote control of the vehicle loading crane. The safe working procedure did not indicate that the tyre handler operator was at risk of being struck and/or crushed by a vehicle loading crane and/or its load when standing in the pinch or crunch point between the tyre and the service vehicle while the vehicle loading crane was not isolated. Because of this omission in the safe working procedure, the system of work relied on the tyre handler operator exercising a discretion to remove himself from the pinch or crush point as he brought the tyre back closer to the body of the service vehicle so that, in practice, the tyre handler operators moved in and out of the pinch or crunch point at their discretion. 31 As group service manager, Mr Mackie was present at the training of employees in the operation of tyre grabs which was also attended by Mr Strong. The advice given in the training session to employees was never to put themselves in a position they could not get out of: the warning about not being in a position where they could be crushed meant that the risk was known and foreseeable. The degree of foreseeability was a significant factor to be taken into account when assessing the level of culpability of the defendant and the gravity of the offence would be affected by the existence of the reasonably foreseeable risk that was likely to result in serious injury or death. In addition, there were simple and straightforward remedial steps which could have been taken by the defendant to avoid the risk. Indeed, all the steps taken by the defendant after the incident were capable of being taken prior to the incident. 32 The prosecutor accepted that the defendant had entered an early plea of guilty and was entitled to a discount of up to 25 per cent as assessed by the Court. It was also accepted that the defendant had taken significant steps to improve workplace safety following the incident. The defendant's prior record, however, was something to be taken into account and led to the maximum penalty for the offence to be $825,000. The prosecutor accepted that the defendant had co-operated with the Department of Primary Industries throughout the investigation and the prosecution process. 33 Submissions for the defendant emphasised the fact that the safe working procedure identified the risk of not being clear of the grabs and the danger to employees remaining in the path of the tyre. However, the safe working procedures assumed that the only employee at risk was the tyre fitter. There was no warning against the tyre handler operator placing himself in the path of a load that he was controlling. The lack of a specific direction was probably due to the fact that the risk was self evident and it was thought that the operator using the remote control would naturally place himself outside of the area of danger just as the tyre fitter was to be outside the area of danger. The defendant did not submit that the risk of injury from standing in the path of a suspended tyre was not foreseeable and, indeed, accepted that the risk was so obvious that the need for a safe work procedure to warn against that action was not appreciated. The tyre handler operator had the freedom to move around and keep himself out of harm's way but the procedure also gave him the freedom or discretion not to do so. The defendant therefore submitted that it was not reasonably foreseeable that Mr Strong would remain in the path of the load as he brought the wheel well away from the earthmoving vehicle: it was not reasonably foreseeable that his instincts would not cause him to step out of the way. Notwithstanding the awful consequences for Mr Strong, it was submitted that the defendant's breach was not "of the most serious kind". 34 While the role of general deterrence was accepted the defendant submitted that the comprehensive nature of the existing safety system, together with the prompt steps taken to address the risk exposed by the accident involving Mr Strong, meant that there was little room for the operation of specific deterrence. General deterrence was to discourage other potential offenders and specific deterrence was aimed at dissuading the defendant from repeating its offence. In relation to subjective factors, there was a clear demonstration of contrition and the defendant had entered its plea immediately after the service of the prosecution brief. 35 The objective seriousness of this offence is to be judged by the nature of the risk: the charge particularised the risk as being employees being exposed to being struck by parts of the vehicle loading crane and its load and being exposed to a risk of being crushed by a tyre and the rear of the service vehicle which housed the vehicle loading the crane. The charge was particularised as a failure to ensure that employees undertook a safe system of work in relation to changing tyres, a failure to ensure employees did not stand in a position between the tyre and the service vehicle between tyre removal and replacement processes, the failure to ensure that employees did not enter the area in which a tyre was being removed or replaced, leaving it to the discretion of employees as to where those employees stood during the tyre removal and replacement processes and a failure to undertake an adequate assessment of the risks involved in tyre removal and replacement by use of a vehicle loading crane. Having regard to the dimension and weight of the wheel, the risk of a crush injury meant that any injury received would be very serious and potentially fatal. In the present case, adequate arrangements had been made for the tyre fitter and, for some reason, it seemed to have been assumed that the operator using the remote controls would look after himself and would not have to be reminded by direction not to work in an area that would leave him exposed to serious crush injuries. Notwithstanding the defendant's otherwise extensive safety systems, the failures particularised in the charge are glaring omissions in circumstances where the risk was foreseeable and known. I am unable to accept the defendant's submission that it was properly assumed that the operator would instinctively move out of the way of danger - that submission almost amounted to acknowledgement of a system whereby the operator was to look after himself. Not only was this risk foreseeable but it was addressed by at least some training provided to the defendant's employees by an external provider. The steps taken after the accident demonstrate not only what could be done but how there was little difficulty in taking those steps. In all of the circumstances, this offence is properly to be considered a serious breach of the Act by the defendant. 36 The defendant has readily accepted that general deterrence should play a role in the setting of an appropriate penalty and submitted that, having regard to the purpose of specific deterrence, the circumstances of this defendant did not warrant a heavy component in the penalty referrable to specific deterrence. There is substance in that submission. The Court was carefully taken through the heavily documented system used by the defendant in its considerable undertaking. There was evidence of the way in which the existing system was emphasised by training, audit and observation and how the system was kept under review. The failure of the system exposed by this incident was quickly addressed and rectified. Considering the 30 year history of participation in this industry and its growing participation in the heavy mining equipment part of the industry, it is a fair assessment to conclude that the defendant's risk of re-offending is relatively low. The defendant, however, is an employer of a significant number of employees at a number of sites many of whom are engaged in potentially dangerous activities. It is in those circumstances that specific deterrence should be considered in setting an appropriate penalty although it will play a reduced role in this particular case. 37 The subjective factors are significant. The defendant entered a plea of guilty at the earliest possible time and should therefore be entitled to a discount of 25 per cent. While the defendant had a previous conviction of a different nature to the present offence, that conviction led to the maximum penalty of $825,000 being available for this offence. While the previous conviction leads to a consideration of this offence in a higher penalty regime it must be readily accepted that the defendant has a good record having regard to its 30 year participation in industry the nature of the industry and the number of its employees engaged in that industry. The defendant is to be given credit for its extensive existing safety system, the prompt steps taken to remedy the defect in its system of safety exposed by this incident and its full co-operation with the investigating authorities. Its contrition has been shown not only by its early plea of guilty and the expressions of remorse made by senior officers in their evidence in this case but also in relation to the consideration shown to Mr Strong's family. These matters all operate to mitigate the severity of the penalty. 38 Having considered the terms of the judgment of his Honour the Chief Industrial Magistrate in relation to the previous offence and the nature of that offence, I am satisfied that this breach does not represent the type of departure from acceptable safety standards that would indicate an indifference to workplace safety or a propensity to come into breach of safety laws. The present breach is considered against the background that a maximum penalty of $825,000 is available although there is no material that would cause the Court to impose a heavier sentence because of the defendant's record. The penalty to be imposed is set having regard to the objective seriousness of the offence, the need for general deterrence, recognition of specific deterrence on a limited basis, and, the subjective factors that serve to mitigate the seriousness of the penalty. 39 Having formed the view that the plea of guilty was properly entered and that the defendant should be convicted of a breach of s 8(1) of the Act, it is then necessary to deal with the Victim Impact Statements from Mr Strong's family, submitted by the prosecutor.

Rodney Dale Morrison v Marathon Tyres Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Cases Cited (1)

Cited By (1)