SafeWork NSW v Banana's Truck & Tipper Hire Pty Ltd; SafeWork NSW v David Monk - [2020] NSWDC 579 - NSWDC 2020 case summary — Zoe

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SafeWork NSW v Banana's Truck & Tipper Hire Pty Ltd; SafeWork NSW v David Monk

[2020] NSWDC 579

District Court of NSW|2020-09-30

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At a glance

Source facts

Court

District Court of NSW

Decision date

2020-09-30

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71
(2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39
(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71(2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty LimitedAttorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242

Judgment (33 paragraphs)

[1]

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Safe Work Australia, Draft Code of Practice: Managing Risks in Tree Trimming and Arboricultural Work (undated) Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work (July 2016) SafeWork NSW, Code of Practice, Managing the Risk of Falls at Workplaces (April 2016) SafeWork NSW Safety Alert "Safety video targets potentially fatal falls from flatbed trucks" (March 2015), SafeWork NSW Code of Practice: Managing the risks of plant in the workplace (July 2014) WorkCover NSW, Code Of Practice: Amenity Tree Industry (August 1998) Category: Sentence Parties: SafeWork NSW (Prosecutor) Banana's Truck & Tipper Pty Ltd (Defendant) David Monk (Defendant) Representation: Counsel: N Read (Prosecutor) D Woodbury (Defendants)

[6]

16 February 2017

BTTH was engaged to remove a phoenix palm tree from the front yard of a property located in Asquith in NSW.
Mr Monk was the designated supervisor at the site. Mr Morgan, Mr Bennell, Mr Grant Bennett (Groundsman/Truck Driver) and Mr Alan Knapman (sub-contracted Tree-climber) attended to conduct the work.
BTTH engaged Transformer Cranes to assist with the task of lifting the palm tree into the bin of the truck. Transformer Cranes provided a mobile crane and two workers, Mr David Isaacs (Crane Operator) and Mr Chay Blyth (Dogman).
Mr Monk explained the task to be completed and the work commenced. According to Mr Bennell, the method of work for lifting the tree into the truck was not discussed.
The work was to be completed by removing the fronds from the palm tree, cutting the barrel of the tree, lowering the barrel to the ground with the mobile crane, and loading the barrel into the bin using the mobile crane.
Mr Knapman climbed the tree and removed the fronds. He then cut the barrel of the tree. Once the barrel was cut, the crane lifted the barrel vertically and laid it on the ground. Mr Monk then left the workplace.
The barrel of the tree was double chained for a horizontal lift. The crane, operated by Mr Issacs, lifted the barrel into the bin. The barrel had not been measured to ensure that it would fit within the bin.
At the time of loading the barrel into the bin, the back gate of the truck was closed. A trailer float containing a stump grinder was attached to the back of the truck. It was possible to partially open the back gate of the truck at least 1.2 metres out to the leg stand on the float.
To assist the loading of the barrel onto the truck, Mr Bennell climbed up the back of the truck via the crane (situated between the cabin and the back wall of the bin). Mr Bennell was standing on either the crane or on a metal reinforced beam on the outside of the bin of the truck and was performing the role of a "spotter." Mr Bennell was not a ticketed dogman and he had not been assessed by BTTH as being competent to undertake the task of directing and/or spotting the landing of loads.
The barrel of the tree was too large for the bin. The mobile crane could not lift and re-position the barrel because the cut fronds became wedged in the hinges of the back gate.
Mr Bennell climbed up and over the wall of the bin and into it. Mr Bennell was passed a chainsaw in order to cut the barrel to a shorter length so that it would fit within the bin. Mr Morgan also climbed into the bin with a chainsaw to assist Mr Bennell in completing the cut.
The workers cut off approximately 500mm from the end of the barrel by using the chainsaws.
Mr Bennell and Mr Morgan began to climb out of the bin. While Mr Morgan was climbing out, he fell from the top of the left-hand side of the front wall of the bin, a height of 3,080mm, onto the road below and landed on the back of his head.

[8]

Systems of work prior to the incident

At the time of the incident there was no safe method of access to or egress from the tray of the truck, such as a permanently fixed metal ladder to enable access when the back gate of the truck was open.
The only method of access to the bin of the truck involved climbing, either via the back gate when the gate was open or over the bin walls via the crane.
BTTH did not develop, implement and enforce a safe method of work for loading the truck. Prior to the incident BTTH's practice was for tree trunks (or barrels) to be stepped out and cut to size prior to loading into the truck bin.
Before the incident, a toolbox talk was undertaken. Mr Monk had told Mr Blyth to place the palm tree on the ground, with the straight section cut off and the round head section to be loaded after the straight section. The back gate was to be opened to load.
Mr Morgan had observed Mr Monk jumping into the tray via the back gate to undo the chains on previous occasions. Mr Bennett said the method of accessing the tray changed from job to job. Mr Bennett said he had observed workers, including Mr Monk, accessing the tray by climbing when the back gate was closed.
Mr Bennell had not been told by BTTH or Mr Monk that he was not permitted to stand on the crane (or the reinforced metal beams on the outside of the bin) while the truck was being loaded. Mr Bennell had stood in that position on many previous occasions.
The logs were loaded into the truck with either the tailgate open or closed prior to the incident, depending on how the truck was positioned.
Prior to the incident Mr Monk had given no specific direction about accessing the bin by climbing over the top.
At the time of the incident, BTTH had a written document dated 3 July 2013 titled "SafeWork Methods Statement and On-Site JSEA" (SWMS). The SWMS was a generic document covering a large number of arboricultural safety hazards.
The SWMS identified the hazard of "lack of planning the work prior to commencement" and identified a control measure as "crew leaders are to ensure that all workers are involved in discussing the work plan and understand their specific roles and responsibilities".
In respect of the work activity of "vehicle, truck and driven plant use", the SWMS identified the hazards of "persons may be injured due to lack of operator training" and "crushing or striking from contact with mobile plant or loads". The control measures for the work activity included the following: "Operators are to ensure that when plant is being loaded, unloaded or in operation that no person comes into contact with plant or load and should stand away at all times and not ride any exterior surface or load area".
The SWMS was kept in the truck and it was not reviewed prior to each job. Mr Bennell was aware of the SWMS but said no-one from BTTH had gone through the document with him prior to the incident.
Mr Bennell had not been provided with specific training on the task of loading the truck in accordance with the SWMS. The barrel would ordinarily be "walked out" to measure it prior to it being lifted into the truck.
Mr Bennett had received minimal training on truck loading. He had been trained not to stand in the bin when the log was being loaded, but had not received an instruction prohibiting climbing in or out of the bin.

[20]

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 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. His Honour Justice Basten at par 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 par 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 par 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 offenders' levels of culpability are based upon the following: 1. The risk of a worker being seriously injured as a result of falling from height whilst entering or exiting the bin of the log truck was obvious and foreseeable. The risk was one that was known, or ought to have been known, to BTTH and Mr Monk. Further, there was guidance material available regarding the risk of a falls from flatbed trucks. 2. The likelihood of the risk occurring was quite high. BTTH and Mr Monk failed to: 1. ensure a safe method of access to or egress from the bin - the only method of access involved climbing either via the back gate or over the walls via the HIAB loader crane; 2. implement and enforce a safe system of work for loading the truck that required workers to stand clear and prohibited them from assisting with the task of directing the load; 3. give workers a specific direction about not accessing the bin by climbing over the top, standing on the crane or reinforced beams of the truck to assist with loading; 4. ensure that there was a consistent work method implemented for the loading the truck that was known to the workers. 1. The necessary steps to eliminate or minimise the risk were readily available. Following the incident BTTH and Mr Monk identified and implemented several measures to manage the risk, including: developing a specific SWMS for the task of loading the log truck; providing training to its workers in the SWMS; placing warning signs on the truck; and fabricating a ladder which was attached to the rear of the truck to enable safe access to the bin. 2. There was no significant burden or inconvenience in implementing these steps. 3. The injuries suffered by Mr Morgan were catastrophic. 4. The maximum penalty for the offence is a fine for BTTH of $1,500,000 and for Mr Monk of $300,000, which reflects the legislature's view of the seriousness of the offences.
Counsel for the defendants submitted that the offences should be assessed in the low range of objective seriousness, because Mr Monk had not directed the workers to climb into the bin. That is so, but as the agreed facts above record, both Mr Morgan and Mr Bennett had seen Mr Monk himself accessing the tray by climbing in and out when the back gate was closed. If the boss is doing it that way, he is in effect demonstrating how the workers can access the bin. I therefore reject the submission.
I find that BTTH's level of culpability is in the mid range.
I find that Mr Monk's level of culpability is in the mid range.

[29]

Victim Impact Statement

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 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 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). In the present case the defendants were convicted by formal orders made on 30 September 2020, and immediately after conviction the written Victim Impact Statement of Mr Morgan was received in evidence.
Mr Morgan's Victim Impact Statement is dated 25 September 2020 (PX 5). Mr Morgan did not request the opportunity to read out the statement in court. Mr Morgan said that his catastrophic accident, which has left him paralysed from the waist down, has had the following effects upon him: 1. Sleeping - Mr Morgan can now only sleep on his back as any other position triggers severe nerve pain. He has been diagnosed with sleep apnea. 2. Eating - Mr Morgan has no control over his bladder or bowels which means that if he eats any food which is spicy or not cooked properly he has a bowel accident. He has to be very careful about what he eats. He has lost his sense of smell so he cannot even tell when he has had a bowel accident, leading to great embarrassment. 3. Sex life - despite treatment he has not been able to resume sexual intercourse with his partner. This also means that he and his partner have been unable to have any more children. 4. Skin - Mr Morgan develops pressure sores which take a long time to heal. To avoid developing pressure sores on his back he sometimes has to lie on his side, which leads to agony from nerve pain. A simple event such as a fall out of a wheelchair or a bad transfer will cause his skin to break down. 5. Bladder control - Mr Morgan has to self-catheterise every four hours to empty his bladder. He has constant urinary tract infections. Sometimes he has had to go to hospital with this problem. 6. Social impact - Mr Morgan feels out of place with his family and friends. He really only spends time socialising with other people in wheelchairs. Going out is difficult as many places are not wheelchair accessible or the toilets are unsanitary. In the back of his mind he is always fearful of having a bladder or bowel accident. The family has tried to go on a few short holidays by booking wheelchair suitable accommodation, but sometimes they have arrived and the rooms are completely unsatisfactory. 7. Financial impact - Mr Morgan and his partner have difficulty making ends meet, and his partner Therese now has to do shift work to bring in enough money to support the family. 8. Psychological and emotional impact - Mr Morgan described in graphic detail the pains and anguish he suffered while in Royal North Shore Hospital. He was transferred from hospital for rehabilitation but found that to be one of the hardest and darkest times of his life. He had strong suicidal thoughts.
Mr Morgan and his partner had a child six months prior to the injury. He has had to watch his daughter grow up from a wheelchair. He is no longer able to do physical things with her, or with an older son. Mr Morgan is extremely angry with his former employer.
Mr Morgan has had some psychological assistance, and now regards himself as having a second chance at life. At least he can be around his loved ones.
Mr Morgan was 34 years old at the time of the accident and is now 37 years old. His life, and the lives of those around him, have been forever blighted by the catastrophic injury which he suffered at work.

SafeWork NSW v Banana's Truck & Tipper Hire Pty Ltd; SafeWork NSW v David Monk

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (33 paragraphs)

Legislation Cited (4)

Cases Cited (17)