Solicitors:
Safe Work (NSW) (Prosecutor)
Clyde & Co (Defendant)
File Number(s): 2015/00233400
[2]
sentence
Tamex Transport Services Pty Ltd (the offender) appears for sentence after it was found guilty after trial of an offence contrary to section 32 Work Health and Safety Act 2011 (the Act).
The Court's reasons for the finding of guilt are set out in its decision SafeWork NSW v Tamex Transport Services Pty Limited [2016] NSWDC 295. I will adopt the defined terms used in that judgment.
The maximum penalty for the offence is a fine of $1.5 million.
[3]
Facts
Mr Lever was employed by a third party as a truck driver. On 28 February 2014, he drove a semi-trailer to the offender's Beresfield Depot to deliver freight, arriving at about 3.30am. At the depot, an employee of the offender, Mr Mackersey, began to unload the truck using a forklift. Mr Lever assisted in the unloading process by taking steps to unsecure the load. A short time later, Mr Lever was standing at the rear nearside of the trailer undoing a load restraint strap, within 2 metres of the operating forklift. He was struck in the head by the door of a freight cage (cage) that became dislodged and fell as the cage was removed from the mezzanine level of the trailer by the forklift.
Mr Lever suffered a depressed skull fracture and a traumatic brain injury. He has ongoing deficits of higher cognitive functions, right-sided deafness, dental injuries and an injury to his lower back.
Mr Lever had been a regular visitor to the depot since about 2000. On the night of the incident he had completed a run from the depot to Tamworth, Muswellbrook and returning to the depot, commencing at about 7.15pm on 27 February 2014 and returning at about 3.00am the following morning. He had done that run 5 nights a week from at least August 2007. Mr Lever and Mr Mackersey had developed a usual practice for unloading the truck. The usual practice allowed Mr Lever to come into close proximity to the operating forklift; that is within about 1-2m. The usual practice exposed Mr Lever to a risk of death or serious injury from being struck by the forklift or being struck by an object falling from the forklift during the unloading process.
The incident was caused by the offender failing to:
implement and enforce a Traffic Management Plan (TMP) at the depot that that provided for:
a 5m pedestrian exclusion zone around an operating forklift;
the provision of a designated truck driver safety zone;
an instruction to truck drivers to remain in the TDSZ while their vehicle was being loaded or unloaded; and
an instruction to forklift operators to cease activity if a pedestrian came within the 5m pedestrian exclusion zone; and
secure the cage doors to the cage.
The risk was actually known to the offender by no later than 28 May 2013. It ought to have been aware of the risk prior to that time because there was information available within the transport industry that identified the risk; for example, the LUEZ guidelines.
The offender also had actual knowledge of the measures available to implement a TMP by no later than 28 May 2013. It ought to have been aware of those measures prior to that time because that information was available within the transport industry.
In 2010 the offender adopted a Safe Work Method Statement that required the observance of a 5m pedestrian exclusion zone around an operating forklift. The language in which the requirement was expressed was ambiguous and ineffective. In any event the relevant workers were not trained on the existence of the 2010 SWMS and its requirements were not enforced at the depot prior to the incident.
In May 2013 Mr Dee the Compliance/Human Resources Manager of the offender circulated a draft SWMS. The May 2013 SWMS contained the requirements of the TMP that I have found were reasonably practicable. The May 2013 SWMS was not implemented by the offender. The May 2013 SWMS did not contain a requirement for the securing of the cage doors, because Mr Dee did not foresee the precise mechanism of incident.
In October 2013 the offender had discussed the LUEZ guidelines and commenced a trial of their implementation at its Brisbane depot. That trial had not completed at the time of the incident.
On 12 March 2014 the offender adopted the May 2013 SWMS with some slight modifications, including the requirement to secure the cage doors. The offender has continued to make improvements on the system that it adopted after the incident, which I will refer to when dealing with the offender's case.
[4]
Medical Reports
The prosecutor tendered a report of Dr Stephen Buckley dated 25 July 2016. Dr Buckley is a consultant physician in rehabilitation medicine. He examined Mr Lever on 2 May 2016 for the purpose of preparing the report.
Dr Buckley opined that Mr Lever sustained a traumatic brain injury in the extremely severe range. It involved post traumatic amnesia of more than 53 days. He has experienced relatively mild deficits of higher cognitive function, but quite marked deficits of emotion and behaviour. He has moderately severe memory loss and marked impairment of recognition of people. He has impaired judgement, problem solving and difficulty with social interaction. He has difficulty with activities of daily living and extremely severe impairment of temper control.
Mr Lever has suffered psychological symptoms including anxiety and depression.
Mr Lever also suffered right-sided hearing loss, dental injuries and an injury to his lower back in the incident.
[5]
The Offender's Case on Sentence
The offender relied on an affidavit of Peter Hoffman, sworn 8 November 2016. Mr Hoffman was present in Court for the sentence hearing but not required for cross-examination.
Mr Hoffman is one of the directors of the offender. The offender is a freight company operating across regional New South Wales, Southern Queensland and Victoria. It provides transportation services in respect of time critical freight including pharmaceuticals and mechanical parts. The offender's head office is in Tamworth and it has been operating since about 1991. The offender employs approximately 100 employees and operates across five branches in Tamworth, Sydney, Brisbane, Newcastle and Moree.
The depot was purchased in around May 2007. At the time of the incident there were 17 employees working there, 24 hours a day 5 days per week, over morning and afternoon and night shift.
Mr Hoffman was notified of the incident about four hours after it had occurred. He drove to the depot to oversee the investigation. After the incident and throughout 2014 Mr Hoffman and other senior employees of the offender were in contact with Mr and Mrs Lever to provide any required assistance. In about December 2014 the offender offered to pay for building works at Mr Lever's home. This offer was ultimately not accepted by Mr and Mrs Lever.
On the day the incident, Mr Dee directed all employees and contractors to observe a 5 m pedestrian exclusion zone from a working forklift and to ensure that cages were shrink-wrapped prior to being loaded.
On 12 March 2014 a revised Safe Work Method Statement was adopted by the offender for the task of loading and unloading trucks at the depot. Employers and subcontractors were trained on the SWMS on 12 and 13 March 2014.
The offender reviewed the traffic management rules for each of its depots. The offender implemented a formal traffic management plan for each depot which has continued to be updated.
The offender installed signage relating to the pedestrian exclusion zone and in about July 2016 fitted blue lights on all of the forklifts to mark the 5 m exclusion zone around the forklift. The blue light technology cost approximately $25,000 to install.
In around late 2015 the offender reviewed the induction and training requirements for all positions within its operations. It adopted an online induction for all employees and contractors. It has also developed and implemented a training register to maintain an up-to-date record of all training received by employees and contractors.
Following the incident the offender adopted a regular review of the CCTV footage of all depots by supervisory staff. The system involves watching the footage for about 1.5 hours per day and producing a report on its content. Any breach of the safe system of work, for example an infringement of the pedestrian exclusion zone can thereby be reported and dealt with.
Within about one month of the incident all cage doors were chained. The offender's employees were trained on this system. A second chain was introduced to prevent cage doors swinging out dangerously at a later time.
The offender has also spent considerable funds in implementing a traffic management program at other depots. In Sydney, the offender has invested approximately $160,000 to provide for the separation of pedestrians and operating plant.
Mr Hoffman deposed that the offender is committed to the protection of workers from any risk to health and safety as result of its operation and that it is committed to providing the necessary resources to continually improve its systems to prevent such risks arising.
Mr Hoffman outlined the offender's commitment to corporate citizenship and community involvement. I will expand on those matters later.
The offender has achieved accreditation with the TruckSafe Industry Accreditation Program (TruckSafe). It is also committed to conducting its operations with environmental best practice and the minimisation of waste throughout its operations.
[6]
Consideration
I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[7]
Objective Seriousness
The risk of serious injury or death to a pedestrian being in close proximity to an operating forklift was obvious. It was a risk actually foreseen by the offender. The offender had identified the risk or a very similar risk in the 2010 SWMS and the draft May 2013 SWMS prepared by Mr Dee. The precise mechanism of the incident was foreseeable, but not obvious.
The 2010 SWMS purported to introduce a 5m pedestrian exclusion zone around an operating forklift. Unfortunately, the offender adopted the 2010 SWMS but did not implement it, train its employees on it or enforce it.
The measures that could have been taken to eliminate or minimise the risk had been identified by the offender by May 2013. The offender was in the process of adopting the LUEZ guidelines. The measures adopted to implement the TMP and to secure the cage doors were relatively simple and not costly.
The gravity of the risk was significant it included a risk of death.
The failure of the offender to act on the risk that it had identified, when it knew of the measures that could be adopted to eliminate it, is a circumstance of aggravation.
The injuries sustained by Mr Lever were very serious. He has been left with profound disability that interferes with the activities of daily living, which is now permanent. He is now dependent on his wife and others to provide care for him.
I have had regard to the maximum penalty prescribed for the offence.
The objective seriousness of the offence is in the mid-range.
[8]
Deterrence
The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
There is also a need for specific deterrence, however in this case it is reduced. The offender had taken some steps prior to the incident to comply with the requirements of its health and safety duty. After the incident, the offender took immediate steps to improve its systems. The offender has continued to refine and make further improvements to the system it adopted immediately after the incident. The offender has accepted responsibility for its failings that led to the injury of Mr Lever and offered him appropriate support. Specific deterrence remains relevant to the sentencing exercise because the offender continues to operate a business that is inherently dangerous to its employees and other persons who may be working at its premises.
[9]
Aggravating factors
The injury, emotional harm and loss caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.
[10]
Mitigating factors
The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been in business since 1991. It operates in a highly regulated industry and is subject to many requirements that are directed at ensuring the safety of its employees and other persons. The offender employs about 100 people and has many others visit its depots on a daily basis.
The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated itself to be a good corporate citizen. The offender provides gratis services to the Westpac Helicopter Rescue Service, Camp Quality and Variety, foregoing about $50,000 per annum in revenue. It also provides scholarships to students at the University of New England at a cost of approximately $18,000 per annum. It also provides sponsorships to smaller local charitable projects and sporting teams in the sum of approximately $20,000 per annum. It has also committed itself to conducting its operations in an environmentally responsible way.
The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Prior to the incident the offender had systems in place to identify risks to the safety of workers involved in its operations. It had made some progress towards implementing the appropriate measures. The offender's response to the incident was swift and has been extremely thorough. It has continued to make improvements on the system that it implemented after the incident. I am satisfied on the balance of probabilities that the incident has resulted in the offender taking its responsibility to ensure safety very seriously and that accordingly it has demonstrated good prospects of rehabilitation.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Hoffman on behalf of the offender expressed remorse for the injury to Mr Lever and the distress that Mr Lever and his family have incurred as a result. The offender has accepted responsibility for its failings that led to the incident. The offender's response was swift and extensive. I am satisfied on the balance of probabilities that the offender has demonstrated genuine remorse and contrition.
The offender co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
[11]
Penalty
The offender is convicted.
I impose a fine of $220,000.
I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
I order that the offender pay the prosecutors costs as agreed in the sum of $82,000.
[12]
Amendments
21 February 2017 - Jurisdiction confirmed as Criminal
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Decision last updated: 21 February 2017