SafeWork NSW v Autocare Services Pty Limited [2022] NSWDC 641 | Case summary

SafeWork NSW v Autocare Services Pty Limited [2022] NSWDC 641 | Case summary | Zoe

Judgment

On 15 May 2019 Mr Trent McIntosh was performing running repairs to the air lines of a vehicle transportation trailer. Mr McIntosh was employed by the defendant Autocare Services Pty Ltd (Autocare) as a heavy vehicle driver. Mr McIntosh died while performing that work, when a deck of the trailer descended and crushed him.
On 29 April 2022 Autocare entered a plea of guilty to the elements of the offence pleaded in the Summons filed on 27 April 2021. On 8 November 2022 the prosecutor was granted leave to amend the Summons. The Amended Summons alleged that Autocare was a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) and failed to comply with that duty and thereby exposed Mr McIntosh to a risk of death or serious injury contrary to s 32 of the Act.
Paragraph 13 of the Amended Summons pleaded the risk as follows: "13. The risk was the risk of workers, in particular Mr McIntosh, suffering serious injury or death as a result of being struck and/or crushed by the movement of a deck on the trailer while undertaking maintenance work on the airlines of the trailer."
The matter was set down for a disputed facts hearing before me on 8 November 2022. In a previous judgment delivered on 14 November 2022 (SafeWork NSW v Autocare Services Pty Ltd [2022] NSWDC 547) I noted that Autocare accepted that it committed a breach of duty by failing to take the measures particularised in pars 14(a) and 14(b)(v) of the Amended Summons, which pleaded as follows: "14. The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr McIntosh, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk: a) Prohibiting non-maintenance workers from undertaking any minor fault fixing or repair work on trailers; and /or b) In the alternative to (a) above, if non-maintenance workers were to undertake minor fault fixing or repair work on trailers then: (v) Enforcing a requirement that non-maintenance workers seek authorisation (from the maintenance supervisor) prior to any minor fault fixing on a trailer."
I held that the prosecutor had failed to establish that the balance of the matters pleaded in par 14 of the Amended Summons were reasonably practicable.
The maximum penalty for the offence is a fine of $1,500,000.

[8]

Training and Accreditation Process at Autocare

Mr Blake was provided with driver training when he started at Autocare in 2012.
He underwent a three-day safety and site induction carried out by Mr Alan Goodridge, the training officer at the time. Mr Blake was walked around various trucks and trailers and had the various parts identified. The deck locking pins were demonstrated to him and he was told not to place any part of his body under a deck that was not supported by the locking pins. This instruction was repeated numerous of times in Mr Blake's induction training. He was told that breaches of safety regulation, including interfering with the proper operation of the trailer controls, would likely result in immediate dismissal.
The driver training included a "buddy training" regime in which a new driver was paired with an experienced driver for about two or three weeks. The new driver would load and unload vehicles and operate the truck and car-carrying trailer and equipment under the supervision of their buddy.
To become an accredited driver for Autocare, a new driver had to pass an on-site examination carried out by a training officer who assessed the driver's capabilities. This accreditation meant the driver was deemed to be trained to safely operate a trailer. This was a formal accreditation process which all Autocare drivers went through.
Mr Blake participated in the new driver training program, including buddy training, in April 2012. He eventually became accredited to operate several car-carrying trailers, including the Doric H4.
The driver training also included training on speed, fatigue, logbooks and safety. This involved "line of fire" training, which taught drivers to recognise when there is potential for a movement of force in the equipment and to ensure they are not in harm's way of that movement, for example not going under decks that were not supported by pins that were locked out.
During the induction and buddy training, it was stated numerous times that only hands were to touch or operate the deck controls. The controls were never to be operated by feet, elbows or wedged open with any object.
Mr Blake stated that this training and instruction was typical of that provided to all drivers.

[9]

Autocare's Fleet Maintenance System

Mr Blake's role as Fleet Maintenance Supervisor relied on him being informed about faults or repairs needed by the drivers. A driver could call, text or speak to Mr Blake personally in order to notify him about a maintenance issue, or alternatively contact the fleet controller for his or her shift to report an issue.
Drivers reporting any maintenance issues were required to complete a Serviceability Report. This was a sheet kept in the fleet controller's office at each site where the drivers' shifts commenced. Mr Blake did not have to wait to receive the Serviceability Report to authorise the repair. He often had trucks or trailers repaired immediately before he acquired the paperwork.
The Serviceability Report was complemented by a priority rating system. Drivers assessed whether the issue required them to ground their equipment immediately, tagging and locking it so it could not be used. The equipment then remained out of service until repaired and cleared by a licensed repairer. That protocol was never overridden to Mr Blake's knowledge.
Once informed of an issue, the fleet controller recorded it in the Shift Operations Report. This was reviewed by Mr Blake at the commencement of his shift so he could determine any issues and prioritise maintenance as required. He usually inspected the faulty truck or trailer personally to identify if there were any other issues that needed rectification. Mr Blake deferred maintenance to the next service unless he determined it was unsafe or not fit for purpose, in which case the equipment would be stood down and sent straight to the repairer.
Mr Blake kept a fleet status whiteboard in the Port Kembla office which recorded maintenance issues for trucks and trailers. This whiteboard was visible to all other office staff, including fleet controllers and load planners. Continuous real time fleet status was displayed for all office staff and drivers.
Servicing occurred relatively frequently because of the mileage on the trucks and trailers. Mr Blake then liaised with the repairers about scheduling the work, having regard to the Serviceability Reports.
Autocare engaged multiple companies to provide them with mechanical and engineering services. Engineering services for trailers were usually carried out by JME Engineering at Unanderra. Mr McIntosh's truck and trailer were usually serviced by Illawarra Truck Repairs.

[15]

Mr McIntosh's Use of Masking Tape

Mr Blake attended the scene of the incident on 15 May 2019.
Mr Blake saw Mr McIntosh's usual truck and trailer combination which he had used on his shifts for about three years. The trailer was unloaded, the main deck was down and the front flip deck was raised. Mr Blake thought this was unusual and stated that the trailer decks were not in their normal position when unloaded and travelling back to base.
The police asked Mr Blake to assist them. Mr Blake noticed the truck engine was running and there was a smell of burnt hydraulic fluid. He looked at the front of the truck for any sign of a leak of hydraulic oil but there was no leak nor was there oil on the road. The hydraulic oil tank/reservoir was hot and radiating heat.
After inspecting the truck, Mr Blake then approached the trailer. Next to Mr McIntosh's body he saw one of Autocare's air line repair kits on the ground together with air line connectors and a pair of side cutters directly under Mr McIntosh.
Mr Blake was shown the control panel for the well deck on Mr McIntosh's Doric H4 trailer. The button to control the "down" direction for the well deck was compressed with masking tape scrunched up tightly into a ball. The ball of tape was wedged against the well deck air button and the side of the control housing, jamming the button in the "ON" position.
Mr Blake confirmed to SafeWork NSW that he was he not aware of masking tape or any other item ever being used by driver to override the controls on their trailers. This was the first time he had ever seen anything like this take place on Autocare trailers. Mr Blake stated his shock as this was contrary to everything Autocare had trained its drivers to do. It had never been suggested by anyone within Autocare that safety mechanisms, handles, valves or switches ever be tampered with in any way whatsoever. In his view, Autocare was very focused on safe work practices and the company culture was built around getting home safely every day.
Mr Blake was likewise shocked to see that Mr McIntosh appeared to have placed himself under the suspended well deck. He thought that all drivers understood that they were never to place themselves in the "line of fire" and that included never being under an unsupported trailer deck.

[22]

Autocare's WHS Approach and Systems at the Time of the Incident

Autocare had and retains a comprehensive safety management system designed to eliminate or minimise the risks to the health and safety of its workers so far as is reasonably practicable.
New Autocare drivers underwent training in line with Autocare's Driver Accreditation Procedure, which relevantly included: 1. General company and relevant site induction training. 2. Driver training, including: 1. The provision of a Drivers Operations Manual containing many of the Standard Operating Procedures (SOPs) for various trailers, and other procedures and processes referred to below. 2. Specific equipment training on trailers and verification of competency. 3. The following maintenance process requirements: 1. Drivers were not to undertake any electrical, mechanical or other maintenance on trucks and instead were required to contact their supervisor. Drivers were required to seek permission from the Maintenance Manager to carry out minor repairs. 2. Drivers were to report during every shift any matters of concern to the Fleet Controller. If the issue related to maintenance during the day shift, it had to be reported to the Maintenance Supervisor. 3. Drivers were required to report maintenance matters to the Maintenance Supervisor through serviceability reports given to the Fleet Controller or Maintenance Manager. This report included a priority rating to assist in appropriately managing matters. 1. SOP training for relevant work and equipment. 2. Fatigue management. 3. Emergency response procedures. 4. Incident reporting. 5. EPOD use. 6. Tie down procedures. 7. Vehicle delivery procedures. 8. WHS policies and procedures. 9. "A Booking" procedure for provision of transportation services to non-dealer/OEM customers. 1. Critical Risk Controls and Life Saving Rules. 2. Basic Fatigue Management certification (externally provided). 3. Provision of contact numbers for 24-hour roadside assistance and 24-hour internal support. 4. Being partnered with a buddy driver for a period of time before the final accreditation assessment.
Drivers and other workers received ongoing information, training and instruction to reinforce compliance with processes, systems and procedures, including by way of: 1. Toolbox talks. 2. Key operations or safety measures. 3. Safety engagements carried out by management and documented in the Lifeguard system. 4. Stop for Safety sessions to reinforce processes and controls and provide a forum for workers to raise any hazard or risk concerns.
Autocare's safety systems and procedures also included: 1. Various health and safety policies. 2. SOPs for the specific trailers, including the Doric H4 trailer. 3. SOPs for various tasks. 4. Risk reviews and control treatment plans in a documented risk register. 5. Driver shift plans. 6. Pre-start checks. 7. Review of loaded trailers by the fleet controller at exit points of Autocare compounds. 8. End of shift reports prepared by fleet controllers for every transport shift which are reported to the NSW Transport Operations Team. 9. Regular review and auditing of hours for compliance with the fatigue management procedure. Autocare also holds accreditation for Basic Fatigue Management under the National Heavy Vehicle Accreditation Scheme, which requires independent auditing of Autocare's system. 10. Regular systemised maintenance of trucks and trailers by external providers. 11. Audits undertaken by LINX Cargo Care Group auditor. 12. An incident investigation and reporting procedure. 13. The use of the Lifeguard system where incidents, hazards and near-misses are reported. Drivers can also log incidents, hazards and near-misses directly or request a matter to be logged by a fleet controller. This is a priority rated system. Once logged, relevant managers and health and safety advisors are required to review and allocate any actions to address reported matters and the progress of these actions can be tracked by Autocare. 14. Disciplinary procedures for when procedures are breached, including tampering with equipment, which was classified as a form of serious misconduct. 15. Safety, Health and Environment Council at National and State level.

[24]

Corporate WHS Management - Due Diligence

Autocare's Senior Leadership Team was led by an Executive General Manager who reported directly to Mr Simpson. Autocare had a sole Director who was also the LINX Group CEO. Autocare's Senior Leadership Team was overseen by the LINX Group Senior Leadership Team.
All actual and potential high-risk incidents and serious safety incidents were reported to the LINX Group CEO, Autocare Director and the LINX Group Board under Autocare and LINX Group's incident notification procedures. Mr Simpson was responsible for ensuring that this occurred.
The LINX Group Senior Leadership Team received monthly reports outlining Autocare's safety performance and reviewed the risk register for the Autocare business at monthly meetings. The LINX Senior Leadership Team also attended Autocare sites and conducted safety engagements.
LINX Group used a tool called Lifeguard which generated daily reports of safety hazards, injuries and near-misses. Mr Simpson received an email alert if any high-risk incident was entered into the Lifeguard system. He reviewed these reports and could inquire about the actions taken and the controls implemented. Mr Simpson also received verbal reports in the event of high-risk incidents.
There were also management reports that summarised the safety hazards, near-misses and incidents as well as the corrective actions. These were discussed in various management forums and meetings. During the Chief Executive Safety Council meetings, Mr Simpson reviewed and considered hazard and risk trends and those reported through Lifeguard. In these reviews, he dug deeper into specific items and took suitable action as required. In Senior Leadership Team meetings, trends were reviewed and direction was provided to relevant individuals.
Mr Simpson also received information on hazards, injuries and/or near-misses in monthly HSE reports by division and Group, and monthly management Board reports. Senior Leadership Team meetings reviewed and discussed the hazards, injuries and near-misses and any trends and provided direction to relevant individuals within the business for actions to be taken to enhance controls.

[29]

Objective Seriousness of the Offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at pp 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
Further at [42] his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. The general risk of drivers carrying out running repairs was actually known to Autocare. It had in place a policy prohibiting drivers from carrying out running repairs on trailers but failed to observe or enforce its own policy. The existence of the policy showed that Autocare appreciated that there was a risk. 2. The particular dangers posed by the tightness of the space under the well deck, the need to get under the deck to access the air lines and the lack of locking pins for the well deck were particular risks known to Autocare (see the cross-examination of Mr Blake). However, there was no evidence that these risks were part of the "buddy" training given to new drivers. 3. Drivers had been performing running repairs on air leaks for some time without incident. However, there was a not insubstantial risk that an unqualified driver could make a mistake, or be ignorant of the risks associated with the well deck, with catastrophic consequences. Drivers were not mechanics. 4. The air lines to the well deck were hard to access and there was the added danger that the well deck could not be supported by locking pins when work was carried out on it. No doubt it was for those reasons that most air line repairs to the well deck were performed by qualified mechanics. 5. There was no training about repair of air lines provided to drivers by Mr Blake. He accepted that the repair of an air line at night by a driver working alone may not be a simple task. 6. The potential consequences of the risk were death or serious injury. 7. Autocare had qualified mechanics who could have carried out repairs to air line leaks. There was no practical burden or inconvenience involved in taking appropriate steps, as Autocare already employed mechanics to repair trailers. 8. The breach of duty caused the death of Mr McIntosh. 9. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence.
I find that level of culpability of Autocare is in the upper half of the mid range.

[34]

Victim Impact Statements

The defendant was convicted at the sentence hearing on 13 December 2022.
Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a). A Victim Impact Statement may be tendered to the court only by the prosecutor - s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement - s 30D(1).
A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate - s 30E(1).
By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim's death on the family victim or other members of the primary victim's immediate family. Members of a primary victim's immediate family include children and grandchildren of the deceased - s 26.
A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community - s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.
The court received the written Victim Impact Statements of: 1. Ms Lynette McIntosh, the wife of Mr McIntosh, dated 26 October 2022 (PX3). 2. Ms Mary McIntosh, the mother of Mr McIntosh, dated 6 November 2022 (PX4). 3. Ms Stacey McIntosh, the younger sister of Mr McIntosh, dated 6 November 2022 (PX 5).

[38]

Costs

Counsel for the prosecutor submitted that there should be an order for the defendant to pay the costs of the prosecutor. Counsel also acknowledged that there was a discretion in relation to such an order.
Senior counsel for the defendant submitted that in exercising the discretion, the court should come to the view that no order for costs should be made in favour of the prosecutor. Senior counsel pointed out that Autocare pleaded guilty at an early stage to a contravention based on par 14(a) in the Amended Summons. Further, Autocare pleaded guilty to a contravention based upon par 14(b)(v) in the Amended Summons, when that subpar was amended during the disputed facts hearing. It was submitted that Autocare had succeeded on all of the issues that were contested at the disputed facts hearing. Senior counsel submitted (MFI 2, par 54) that "it is plain that those costs [of the disputed facts hearing] would far outweigh the costs incurred by the prosecutor in relation to the plea and sentence hearing in respect of the matters to which Autocare pleaded guilty".
I do not accept that submission. There is no evidence as to the quantum of costs involved in the disputed facts hearing, as opposed to the costs of the prosecutor in bringing the proceedings and preparing them for trial, as well as the costs of the sentence hearing. I deal below with my own "broad brush" approach to the apportionment of costs.
Section 257B of the Criminal Procedure Act 1986 (NSW) provides that "A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies…".
The operation of s 257B in the context of work health and safety prosecutions was considered by the Court of Criminal Appeal in Bulga. The court said at [219] that costs are discretionary and that the trial judge is ordinarily in the best position to make an assessment of the time and importance of different issues where a party has succeeded on some and failed on others.
The approach to awarding costs based upon separate issues in civil proceedings also applies in criminal proceedings, with the qualification that regard must be had to the fact that the prosecutor has a public duty to put all material issues before the court: Bulga at [221].
The Court of Criminal Appeal recognized at [231] that when apportioning costs, mathematical precision is not possible, but it is incumbent on the trial judge to identify the considerations which led him or her to apportion in a particular manner.
The Court of Criminal Appeal identified some of the factors to be taken into account at [233]-[235] as follows: 1. An evaluation by the trial judge of the time particular issues took in terms of evidence and submissions. 2. Whether the prosecutor was successful in establishing a breach of the Act (although this factor is not relevant in this case, given that Autocare pleaded guilty). 3. Whether the prosecutor failed in demonstrating that some of the proposed methods were reasonably practicable. 4. Whether the sentence hearing resulted in the submissions of the prosecutor or the defendant being favoured.
In coming to a conclusion in relation to an appropriate costs order, I make the following findings: 1. The prosecutor had a public duty to bring these proceedings and was justified in doing so, inter alia, by the plea of guilty entered by Autocare. 2. There would have been considerable work done by the prosecutor, and considerable costs incurred, in formulating the charge, drafting the pleadings, collating the evidence to be tendered against Autocare and preparation generally. 3. There were costs involved in appearing before the court on eight directions hearings before a plea of guilty was entered. 4. Autocare pleaded guilty to a failure to eliminate the risk by forbidding drivers from carrying out running repairs to trailers. 5. Autocare pleaded guilty to an amended particular, when such amendment was only granted during the disputed facts hearing. 6. Autocare was successful on the disputed facts hearing and the prosecutor failed to establish the other measures pleaded in par 14 of the Amended Summons. 7. The cross-examination of Mr Blake on the sentence hearing, while short and to the point, considerably cut down the force of his evidence. 8. The submission made by counsel for the prosecutor that the offence fell in the mid range of objective seriousness was accepted and the submission by senior counsel for Autocare that the offence fell in the lower range of objective seriousness was rejected.
Doing the best I can, and taking into account the matters set out above, I find that the appropriate order is that Autocare should pay 75% of the costs of the prosecutor.

SafeWork NSW v Autocare Services Pty Limited

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