Rodney Morrison v Powercoal Pty Limited

Industrial Relations Commission (NSW)|1998-06-30|Before: Schmidt J, Ms AJ

Industrial Relations Commission of New South Wales in Court Session

CITATION : Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298 PROSECUTOR: Rodney Morrison PARTIES : DEFENDANT: Powercoal Pty Limited (ACN 052 533 070) FILE NUMBER: IRC 4399 of 2001 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - breach of 15(1) of the Occupational Health and Safety Act 1983 - mining industry - plea of guilty - first offence - fatality - failure to train in the interaction of automatic jack retraction feature of the miner and the operation of remote control device - failure to isolate machine from its power source while maintenance work was being performed - defendant guilty of charge - penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 R v Sharma [2002] NSWCCA 142 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 WorkCover Authority of New South Wales (Inspector Buggy) v P&O Ports Ltd [2000] NSWIRComm 249 CASES CITED : WorkCover Authority of New South Wales (Inspector Dunlop) v Robert Shone Constructions Pty Ltd [2002] NSWIRComm 222 WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Sharpin) v Bovis McLachlan Pty Ltd [2002] NSWIRComm 210 WorkCover Authority of New South Wales (Inspector Sharpin) v Christie Civil Contracting Pty Ltd [2002] NSWIRComm 209 WorkCover Authority of New South Wales (Inspector Robins) v Katoomba Scenic Railway [1998] NSWIRComm 308 (30 June 1998) HEARING DATES: 11/05/2002; 11/06/2002 DATE OF JUDGMENT: 11/18/2002

PROSECUTOR: Ms AJ Katzmann SC with Mr R Reitano of counsel SOLICITORS: PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES: DEFENDANT: Mr BD Hodgkinson SC with Mr PJ Nolan of counsel SOLICITORS: Sparke Helmore

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

RODNEY MORRISON v POWERCOAL PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 This prosecution was brought under s15(1) of the Occupational Health and Safety Act 1983. The defendant pleaded guilty to an amended allegation, tendered by the prosecutor at the hearing of the plea, at the same time as two other prosecutions brought against the defendant for breaches of the Act were dismissed.

2 The breach finally alleged was that the defendant had failed to: Ensure the health, safety and welfare at work of all of its employees, in particular Christopher Elliott and Colin Bradley, contrary to section 15(1) of the Occupational Health and Safety Act 1983.

3 The particulars of the charge were: 1. At all material times Christopher Elliott was an employee of the defendant. 2. At all material times the defendant operated an underground coal mine located near Dora Creek, 35 kilometres south west of Newcastle on the western side of Lake Macquarie which coal mine was and is known as Cooranbong Colliery ("Cooranbong Colliery"). 3. On 1 July 1999 at or about 11:45pm Christopher Elliott was one of four persons working at Cooranbong Colliery approximately 125 metres below the surface and about 7.5 kilometres from the entrance to the mine at a section of the mine known as Stowage B Panel. 4. Prior to 11:45pm on 1 July 1999 Christopher Elliott was one of four persons working to install a conveyor boom onto a Joy 12 CM 12 (No CM04) Continuous Mining Machine ("the Continuous Miner"). 5. Whilst performing the installation the power to the Continuous Miner was turned on and the stabiliser jack to the Continuous Miner was lowered when the continuous miner was turned off. 6. Whilst performing the installation Christopher Elliott climbed into a space between the underside of the conveyor boom and the stabilizer jack which was in the lowered position. 7. Whilst performing the installation the left hand boom lift cylinder ram was found to be too tight to extend by hand to align the top clevis and it was decided to drive the ram out by using the Continuous Miners hydraulics by turning its power on. 8. Prior to powering up the Continuous Miner Colin Bradley positioned himself under the rear side of the Continuous Miner between the rear bumper and the floor adjacent to the left hand side of the stabilizer jack foot and held the said foot in position with his own foot. 9. Prior to powering up the Continuous Miner Christopher Elliott remained in the space between the underside of the conveyor boom and the stabilizer jack which was in the lowered position. 10. Christopher Elliott then requested another employee, Douglas Jones to start the Continuous Miners power. 11. Douglas Jones started the Continuous Miners power with a remote radio controller the effect of which was to cause the stabilizer jack to be raised causing Christopher Elliott's legs to be trapped between the stabilizer jack and the underside of the Continuous Miner. 12. At the time that Christopher Elliott's legs became trapped they were crushed and the metal pierced his left thigh cutting through the femoral artery and vein causing his death. 13 The Defendant failed to provide such information, instruction, training and supervision as maybe necessary to persons carrying out the installation of conveyor booms onto the Continuous Miner to ensure the health, safety and welfare of its employees.

4 An agreed statement of facts was tendered and the defendant called evidence from Mr Andrew Myors, General Manager, Mandalong Mine. Various documents were also tendered. The agreed Statement of Facts provided: 1. At all material times Christopher Elliott and Colin Bradley were employees of Powercoal Pty Limited ("Powercoal"). 2. At all material times Christopher Allen was an employee of Waratah Engineering Pty Limited ("Waratah Engineering") 3. At all material times Powercoal was a body corporate. 4. At all material times Rodney Morrison was authorised to commence prosecutions under the Occupational Health and Safety Act and this prosecution was commenced pursuant to that authorisation. 5. At all material times Powercoal operated an underground coal mine located near Dora Creek, 35 kilometres south west of Newcastle on the western side of Lake Macquarie which coal mine was and is known as Cooranbong Colliery ("Cooranbong Colliery"). 6. On 1 July 1999 at or about 11.45pm Christopher Elliott was one of four persons working at Cooranbong Colliery approximately 125 metres below the surface and about 7.5 kilometres from the entrance to the mine at a section of the mine known as Stowage B Panel. 7. Prior to 11.45pm on 1 July 1999 Christopher Elliott was assisting in the installation of a conveyor boom onto a Joy 12 CM 12 (No CM04) Continuous Mining Machine ("the Continuous Miner"). 8. Prior to 11.45pm on 1 July 1999 Colin Bradley and Doug Jones who were both employees of Powercoal were also assisting in the installation of the conveyer boom to the Continuous Miner. 9. At all material times Christopher Allen was the service technician employed by Waratah Engineering to work upon the maintenance and assist in the installation of the conveyor boom. 10. The Continuous Miner was owned by Waratah Hire Pty Ltd ("Waratah Hire") and had been hired by Powercoal pursuant to a hire contract for the purposes of producing coal. Waratah Hire engaged Waratah Engineering to service the Continuous Miner. 11. At all material times Waratah Engineering employed service technicians who were required to service mining and other equipment (such as the Continuous Miner) for Waratah Hire and others. Waratah Engineering owned and operated a workshop for that purpose and also sent its technicians to mine sites to work on mining equipment. 12. On 30 June 1999 the Continuous Miner sustained damage to the conveyer boom main hinge points. 13. A Mr Gluszek from Waratah Hire and Christopher Allen went to Cooranbong Colliery on 30 June 1999 and inspected the Continuous Miner. It was observed that the pivot tubes had broken out, that there were some fractured brushes and some other damage to the Continuous Miner. 14. Christopher Allen removed the conveyer boom from the Continuous Miner and it was taken to Waratah Engineering's workshop for repairs. 15. On 1 July 1999 Christopher Allen was asked to go to Cooranbong Colliery to assist in the installation of the conveyer boom on the Continuous Miner. 16. The installation of the conveyer boom onto the Continuous Miner had commenced during the afternoon shift on 1 July 1999 but had not been completed. The night shift crew comprising of Christopher Elliott, Colin Bradley, Doug Jones and Christopher Allen were all required to complete the installation and specifically were required to connect the boom lift cylinders to the boom and reconnect the conveyer chain. 17. Whilst performing the installation the power to the Continuous Miner was turned on and the stabiliser jack to the Continuous Miner was lowered. 18. Whilst the Continuous Miner's power was off, but not isolated at all and whilst performing the installation Christopher Elliott climbed into a space between the underside of the conveyor boom and the stabiliser jack which was in the lowered position. 19. During the installation the left hand boom lift cylinder ram was found by Christopher Elliott to be too tight to extend by hand to align with the top clevis. It was therefore decided to drive the ram out by using the Continuous Miners hydraulics by turning the Continuous Miner's power on. 20. Prior to powering up the Continuous Miner Colin Bradley positioned himself under the rear side of the Continuous Miner between the rear bumper and the floor adjacent to the left hand side of the stabiliser jack foot and held the said foot in position with his own foot. 21. Prior to powering up the Continuous Miner Christopher Elliott remained in the space between the underside of the conveyor boom and the stabilizer jack which was in the lowered position. 22. Christopher Elliott then requested Douglas Jones to start the Continuous Miner's power. 23. Douglas Jones started the Continuous Miner's power with a remote radio controller the effect of which was to cause the stabilizer jack to be raised although not fully from its lowered position. This caused both of Christopher Elliott's legs to be trapped between the stabilizer jack and the underside of the Continuous Miner. 24. The Continuous Miner was immediately shut down using the remote control. Christopher Elliot's legs remained trapped. The Continuous Miner was then restarted so as to release Christopher Elliott's legs by use of the remote control whilst holding the stabiliser jack toggle in the down position. This did not override the automatic retraction of the stabilizer jack which then retracted to the full up position. The effect of this was to further crush Christopher Elliott's legs. 25. Colin Bradley was able to remove his right leg from its position between the stabilizer jack and the main frame of the Continuous Miner before the stabilizer jack first started to retract. 26. At the time that Christopher Elliott's legs became trapped they were crushed and the metal pierced his left thigh cutting through the femoral artery and vein ultimately causing his death. 27. At all material times the stabiliser jack of the Continuous Miner automatically retracted upon the hydraulic pump on the Continuous Miner being started. It was not necessary for the operator to activate the stabilizer jack for it to retract. Further, the retraction of the stabilizer jack could not be defeated by the operator using the remote radio transmitter. 28. Powercoal had Isolation Procedures (GWP005) and Continuous Miner Operating Procedures (SWP002). These procedures were not applied on the night of 1 July 1999. These procedures did not specifically deal with the work that was being performed on 1 July 1999. 29. Powercoal did not provide any information, instruction or training to Colin Bradley or Christopher Elliott in the installation of the conveyor boom and in particular: (a) that the stabilizer jack would automatically retract when the power to the Continuous Miner was activated; (b) that no instructions were given to Colin Bradley ad Christopher Elliott about the method to be adopted to attach the boom lift jacks to the boom; (c) that Colin Bradley and Christopher Elliott were not provided with any information, instruction or training on the need to ensure that the machine was isolated when reinstalling the conveyor boom to the Continuous Miner; (d) at no time during the replacement of the boom were any of the persons present allocated to act as supervisor. 30. In the report of Inspector Conlon, District Inspector of Coal Mines, he said: "an amended safe working procedure for removal and replacement of a conveyor boom on 12CM12 continuous miners has been formulated. Retraining of the workforce in the new procedures has been undertaken." 31. Powercoal has no prior convictions under the Occupational Health and Safety Act 1983.

5 At the time of the accident the defendant operated six collieries in the Lake Macquarie and Newcastle areas and one at Lithgow. It employed approximately 1400 employees, about 245 at the mine at Cooranbong. This was its first offence under the Act.

6 The continuous miner involved in the accident was being repaired by three of the defendant's employees, who were working together with an employee of Waratah Engineering, supplied by the owner of the miner, Waratah Hire Pty Ltd.

7 The evidence showed that the defendant had in place an extensive safety programme, which included training of employees in relevant safety matters. This flowed not only from the obligations imposed by the Act, but also from the obligations imposed by other legislation specific to the mining industry, where particular regulation is made, specific to the dangers inherent in underground mining operations.

8 The unfortunate irony revealed by the evidence, was that the two aspects of the continuous miner particularly involved in this accident, the stabilizer jack and the remote control device, were themselves innovations designed to improve safety. It was their interaction in the particular circumstances of the work being performed, which led to the accident, which here occurred.

9 The purpose of the jack was to prevent the miner inadvertently moving backwards or from side to side, during coal cutting operations. The automatic retraction feature of the stabilizer jack had been added to the miner design, following upon a serious mining accident at another mine, only a few years previously. This design improvement had resulted from co-operation between the manufacturer and the Department of Mineral Resources. The remote control device was also a safety feature introduced throughout the mining industry, in the 1980's. Its use had removed operators of the equipment from their position on the machine when operating it manually, an inherently dangerous position, given the nature of the work involved in underground coal mining.

10 The evidence showed that the design feature leading to the retraction of the stabiliser jack operated automatically, whenever the machine was switched on. The remote control device could not be operated to override this automatic safety feature. The evidence showed that this was not properly understood by the employee operating the remote control device, or by the two fitters working on the machine. The fitters both held delegations from the mine manager, under the relevant legislation, to perform and supervise maintenance work of the kind they were engaged upon. It was one of them, Mr Elliott, who directed the third employee to turn the machine on, using the remote control.

11 When the stabiliser jack retracted upon the machine being started, thereby trapping the two employees working on the miner, the operator's reaction was to immediately switch the machine off and then to restart it, whilst also depressing the jack control mechanism, in order to reverse the jack retraction. Tragically, the remote control mechanism was incapable of overriding the inherent, computerised safety design feature of the machine. Starting the machine the second time only led to further retraction of the jack, not its reversal. While one employee, whose foot had been resting on the jack when the machine was switched on, managed to disentangle himself, the second employee, Mr Elliott, who appeared to have both legs resting on the jack while lying on his back on the ground under the machine, could not.

12 The defendant frankly acknowledged a serious deficiency in the training which its employees had received in this aspect of the miner's operation. What also cannot be overlooked however, in considering this deficiency, was that had the employees adhered to the otherwise generally applicable procedures when performing maintenance work of this kind, which required isolation of the machine from its electrical power supply, this accident could not have occurred. Such isolation would have prevented the jack retracting.

13 The proper approach to the work involved the machine's isolation and the use of a portable electrical power supply, in order to operate the hydraulic boom lift cylinder, without starting the machine itself. It was this cylinder, which the employees were seeking to move, when switching the miner on. The use of a separate power supply to power the cylinder alone, was readily available at the site. Its use would have ensured that the jack did not retract.

14 There was no doubt on the evidence that the employees involved in the accident had been extensively trained in the applicable isolation procedures. Mr Myors in cross examination, nevertheless, also candidly acknowledged that the particular written instructions applying to this operation, could have been misunderstood by the employees as permitting the operation of the machine, to raise the hydraulic cylinders, rather than requiring use of an independent power source to achieve that effect.

15 This concession, nevertheless, has to be considered in a context where the defendant's records showed that on 44 previous occasions, the work of refitting hydraulic cylinders on continuous miners had been undertaken by its employees, without difficulty. The evidence as to the way in which such maintenance fitting work was performed, which included photographs of a re-enactment of the work being performed when this accident occurred, showed that the two employees were located inside the machine when it was switched on, with parts of their body in contact with the jack. Given the automatic nature of the jack retraction when the machine was switched on, the proper inference from the evidence was that on earlier occasions when such work was performed, the machine was isolated and had not been operated as it was on this occasion. Had it been otherwise, a similar accident to that which here occurred, would have earlier been inevitable. Whether the fitters involved in this accident had performed this maintenance work before, was not known. The evidence showed, however, that they were qualified and comprehensively trained to perform such maintenance work, although there was no specific training given on this particular task. They had also had extensive training in isolation procedures and had been warned of the risk of serious injury or death, if those procedures were not followed.

16 The evidence also showed that the defendant speedily reacted to the deficiency which the accident had identified. It immediately alerted other employees of the accident and reinforced the necessity of strict compliance with applicable isolation procedures throughout its workforce. A risk assessment of the particular work in question was then conducted and new step-by-step procedures, including a checklist to be followed for particular types of complex maintenance tasks, which highlighted the necessity to use portable power packs at different stages, were developed and introduced. These procedures were developed not only for the work being performed when this accident occurred, but for other types of work as well.

17 The defendant also revisited its training and supervision system, particularly for jobs identified to be high risk. Mr Myors' evidence was that a new permit system had been developed. This required a specific review before such work was undertaken, instruction in the safe performance of the work was given and written authority for the work to proceed, was then also required from the Mine Manager. An audit process had also been introduced, with disciplinary action resulting, if employees were found not to be using applicable isolation procedures.

18 It was common ground that the maximum penalty applicable to this offence was $550,000.

19 It was submitted by Mr Reitano of counsel, appearing with Ms Katzmann of senior counsel for the prosecutor, that the defendant had accepted that it had failed in its obligations under the Act, in four particular ways: (a) that the stabilizer jack would automatically retract when the power to the Continuous Miner was activated; (b) that no instructions were given to Colin Bradley or Christopher Elliott about the method to be adopted to attach the boom lift jacks to the boom; (c) that Colin Bradley and Christopher Elliott were not provided with any information, instruction or training on the need to ensure that the machine was isolated when reinstalling the conveyor boom to the Continuous Miner; and (d) that at no time during the replacement of the boom was there any supervision present.

20 It was submitted that the objective seriousness of this offence was such as to place it at the higher end of seriousness, having regard to the obvious nature of the risk, its identification and the simple remedial steps available, which would have prevented its occurrence. Regard would also be had to its serious consequences - namely a fatality. This demonstrated the seriousness of the detriment to safety occasioned by the offence. The fact that the remote control device and the jack retraction system were safety features, did not make it any less important to give employees training about their operation.

21 Relevant to the question of foreseeability was that the two workers in question were working on and around heavy machinery, with known and obvious risks associated with it. The hazard presented by the work was obvious. The existence of the applicable isolation procedures demonstrated that the risk was known and identified. The existence of such procedures and the training given in them, did not take away from the absence of any procedures dealing with the specific risks associated with the task here being performed. It was a coming together of various features of the continuous miner, which here led to the offence charged.

22 It was also relevant that a portable power supply was readily available at the workplace. Its use would have precluded the accident occurring. Such prevention involved neither complicated, nor difficult measures. While it was true that the defendant had taken laudable steps before and after the accident in relation to training, the principle matter which required consideration was the nature and seriousness of the offence. It also followed that both specific and general deterrence were important in this case, involving as it did a breach of the Act in the coal mining industry.

23 It was submitted that the offence was such as to warrant a penalty in the higher range, given the simple steps which could have been taken to avoid a known and identified risk and the serious consequences which followed. It was, however, accepted that the defendant was entitled to a discount flowing from its plea. It was also conceded that the defendant had co-operated with the prosecutor in the investigation, and that steps had been promptly taken to deal with the risk to safety which had been revealed.

24 Mr Hodgkinson, senior counsel appearing for the defendant with Mr Nolan of counsel, submitted that a high range penalty was inappropriate in the circumstances of this offence. While the defendant had entered a plea to an offence, which it conceded had been serious, it was also submitted that proper regard must be had to a number of circumstances, which would not properly permit the conclusion urged for the prosecutor. The assessment of the nature and seriousness of the offence had to be approached in the context of the particular defendant brought before the Court.

25 It was submitted that account would be taken of the fact that this was a first offence, committed by the defendant in its extensive undertakings in the mining industry. While the defendant, through the evidence given by Mr Myors, had frankly accepted that there was a serious deficiency in its approach to safety on this occasion, it would be accepted that the deficiency had come to light at a workplace where extensive prior endeavours had been made to ensure safety.

26 While there was no specific procedure to be followed when this task was performed, it was submitted that proper account would also be taken of the systems in place to ensure the safety of this work, including the applicable isolation procedures and the extensive training which had been given to the employees in how such work should be safely performed. Implementation of the isolation procedures would have precluded this accident. The defendant had accepted that it could not rely on those procedures and the training given in them and had, as a result, implemented an entirely new approach to training. These matters had to be weighed in balance.

27 Account would also be taken of the extensive remedial steps taken by the defendant to remedy the deficiency which the accident had highlighted, but which were only addressed by the prosecutor. It followed, so it was submitted, that a high range penalty would not be imposed, consistent with the Court's approach in various other prosecutions. A penalty in the lower range was appropriate, particularly given that this was a first offence committed by a defendant with a very significant and comprehensive approach to safety.

28 Submissions were also advanced as to the appropriate discounts to be given, in light of the applicable sentencing guidelines.

29 The admitted facts and the evidence here demonstrated that despite a commendable pre-existing approach to safety in an inherently dangerous industry such as coal mining, this guilty plea was properly entered by the defendant, in acknowledgement of its breach of the onerous obligations imposed upon it by the Act. The defendant accepted that the risk here in question, whilst known, had not been eliminated by the steps which had been taken to deal with it.

30 The proper approach to the imposition of penalty is well settled, requiring the imposition of a penalty which reflects the nature and quality of the offence in question. In the case of a plea such as this, the principles discussed in R v Thomson, R v Houlton (2000) 49 NSWLR 383 are to be followed. (See R v Sharma [2002] NSWCCA 142 and Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 at [37]).

31 The evidence showed that there was a deficiency in the training provided in the work here in question. The employees were seemingly not aware of the automatic retraction of the jack and its serious consequences, were the machine to be turned on, while they were performing the maintenance work they were engaged on. Nor did they appreciate that this automatic retraction could not be overridden by use of the remote control.

32 The evidence did not leave open to doubt that the applicable isolation procedures, if they had been implemented, would have precluded the accident occurring. Whether the direction given by Mr Elliott to start the machine resulted from a misunderstanding of the document in question, which applied to this work, as Mr Myors conceded was possible, or for some other reason, cannot be determined on the evidence. That the work being undertaken had been performed on many occasions beforehand, without incident cannot be overlooked. As I have found on the evidence, that record cannot have resulted from mere good fortune. While account must also be taken of the fact that neither of the two fitters who had been trained and delegated the function of performing and supervising this type of work, had in fact been designated the supervisor of the particular job being performed, it is also relevant that they had that capacity, and it was employees with such training who were amongst those performing the work. It was one of those fitters who gave the direction for the machine to be switched on, apparently without demur by the defendant's other employees or by Mr Allen, who was also present. A portable power pack was available and its use would have precluded this tragedy occurring. Once again, the evidence showed that a simple and available measure, if taken, would have precluded a serious and readily foreseeable risk to safety arising.

33 Those factors can but only lead to the conclusion that the breach here in question was a serious one, as the defendant properly accepted. As the authorities have now long made well clear, employers have obligations to protect even well trained and experienced employees from exposing themselves to dangers, even those which might seem obvious. The defendant here plainly failed to do so. The defendant accepted that its failure to train the employees in the interaction of the automatic jack retraction feature of the miner and the operation of the remote control device, left them in a position where exposure to serious injury and indeed, death, resulted from their failure to isolate the machine from its power source while the maintenance work was performed. That, it appears, while readily foreseeable, was a danger not appreciated by these employees, who did not utilise the alternate power supply available to them, which would have ensured their safety.

34 The parties were at considerable odds as to the penalty which would properly flow from the evidence as to the nature of this offence. While I am well satisfied that a substantial penalty must be imposed, I am unable to accept the prosecutor's submission that the circumstances must lead to the imposition of a high range penalty. In my view, a penalty of the kind proposed would be inconsistent with both the evidence in this case and the approach which the Court has taken in other cases involving a plea to a first, albeit serious, offence where the gravity of the consequences of the offence has been of the worst kind, namely a death has occurred. While it is not easy in prosecutions brought under the Act for comparisons to be readily drawn between the circumstances of different offences, the approach adopted in cases such as Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99; WorkCover Authority of New South Wales (Inspector Dunlop) v Robert Shone Constructions Pty Ltd [2002] NSWIRComm 222; WorkCover Authority of New South Wales (Inspector Sharpin) v Christie Civil Contracting Pty Ltd [2002] NSWIRComm 209; WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163; WorkCover Authority of New South Wales (Inspector Buggy) v P&O Ports Ltd [2000] NSWIRComm 249; WorkCover Authority of New South Wales (Inspector Sharpin) v Bovis McLachlan Pty Ltd [2002] NSWIRComm 210 and WorkCover Authority of New South Wales (Inspector Robins) v Katoomba Scenic Railway [1998] NSWIRComm 308 (30 June 1998), are pertinent and support the conclusion which I have reached about the appropriate range of the penalty to be imposed in this case.

35 While the sentencing process commences with a consideration of the nature and quality of the offence revealed on the evidence, it is also well settled that the task of the Court in fixing penalty, is to assess the relative seriousness of the offender's particular offence, in relation to a worst case for which the maximum penalty is provided. I am satisfied, having regard to the nature and quality of the offence, the gravity of the potential risk to safety flowing from this offence and the evidence which threw light on the defendant's culpability, that such an approach in this case could not properly lead to the imposition of a high range penalty. In arriving at the appropriate penalty, account must also be taken of the defendant's record, as well as the other matters properly raised in mitigation.

36 As to record, I am satisfied on the evidence that this defendant's record did not result as a matter of luck, but rather from the real attention it had paid to safety at this workplace prior to this accident, in a proactive, not merely a reactive way. The existence of a safety system, which would have prevented the accident, if adhered to, must also be taken into account. Given the nature of the detriment to safety here in question, I do however accept that elements of both general and specific deterrence must feature in the penalty imposed and have taken this into account in fixing penalty.

37 I turn then to the question of any discount. I am satisfied that this was an early plea, entered as soon as the prosecutor had amended the application for the orders it sought in these proceedings and sought the dismissal of the two other prosecutions under the Act which had been brought against the defendant, arising out of the same circumstances. I am satisfied that the discount appropriate to be applied in these circumstances, having regard to utilitarian savings and contrition, is a total of 35%. In this latter regard, it is appropriate that I take into account the very considerable action taken by the defendant in response to the risk to safety, which the accident had exposed. In an environment where there had already been serious attention paid to safety matters generally, the detailed step by step instructions and check lists introduced by the defendant for complex maintenance work, together with a new instruction and approval process and enhanced safety audit procedures were commendable and properly now to be taken into account in fixing penalty.

38 I turn then to the amount of the penalty. I am satisfied that the appropriate penalty in the case of this first offence, having regard to all of the matters earlier mentioned, is a substantial penalty, in the order of $100,000. Applying the discount fixed, a proper penalty of $65,000 emerges.

39 For the reasons given, I find the defendant guilty of the charge and make the following orders: 1 The defendant is to pay a penalty of $65,000, with a moiety to the prosecutor.

2 The defendant is to pay the prosecutor's costs, as agreed, or in the absence of agreement, as assessed by the Court. ------------------------

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.

[1998] NSWIRComm 308

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