In his oral submissions, Mr Agius said :
… his Honour fell into error in interpreting what the Board said about management's responsibility and role in this matter and in particular there was no finding by the Board that management was innocent. Quite to the contrary, the Board found that management has responsibility and the Board drew attention to management processes which were distinguished entirely from responsibility from the incident itself which the Board squarely placed at the foot of management. The extent to which his Honour took that into account again we suggest his Honour fell into error.
20 We see no error in his Honour's reasoning. Indeed, we find the disquiet expressed by his Honour as to certain of the Board's conclusions understandable and we share it. A finding, as made by the Board, that "no shortcomings or failure of Management process that contributed to this incident" is difficult to reconcile with its finding "that the Management is responsible to improve the warning system in this area". And, as referred to by his Honour, those findings are to be seen in light of the other finding by the Board that the two employees concerned "were responsible for the incident along with the inadequacy of the warning light's positioning". If there be any error, then, in our view, it related to the somewhat equivocal findings of the Board in what were perhaps imprecisely drawn terms of reference which it endeavoured to address. In any event, howsoever one views those findings the conclusion by his Honour, earlier expressed, to the effect that the two employees were required to be in an area with limited clearance in circumstances where the warning system as to oncoming trains was inadequate, was demonstrably well established; in fact, it was admitted by the appellant.
21 Mr Agius' submission in drawing a distinction between "management process" in not contributing to this incident and "management responsibility to improve the warning system" led to senior counsel's eventual submission that "the cause of this accident was not the lack of sufficient warning by the warning light, the cause of this accident was Mr Franklin moving from the position of safety in which he was in to a position which was not safe" contrary to "the rail safety awareness rules" put in place by the appellant. In other words, as senior counsel put, "all I am addressing is the real cause of this accident" which does not support the findings made by Maidment J. As senior counsel added, "we are guilty, we are culpable, but to a degree less than that which has been found against us … in terms of penalty". Senior counsel went so far as to submit that "Mr Franklin was in a position of safety … he moved to a position which was not a position of safety; he should never have been permitted to do that; he should have been warned; something should have told him not to move there, but it didn't and that is our culpability, but it is a lot less than the culpability that his Honour found against us".
22 It is timely, in view of Mr Agius' submission in qualitatively attempting to assess the appellant's real culpability, to emphasise by repeating the offence charged - it was, in terms, that the appellant "failed to provide and maintain systems of access to railway areas to undertake painting maintenance work that was safe and without risk to health". Maidment J certainly found that it was "difficult to understand the criticism of the two employees", but, his Honour's essential finding was the seriousness of the offence arising from, as he concluded, "a failure to ensure the safety of employees who were known to be subjected to an obvious hazard. The deficiency in the warning system should never have existed and, once it did exist, it should have been identified and remedied". There is nothing in that finding, in our understanding of it, which conflicted with the disquiet expressed by his Honour in light of the seeming inconsistencies in the Board's findings. It is to be borne in mind also that the statement of agreed facts disclosed the appellant accepted that "the warning system was found to be inadequate", "poor positioning of the warning lights", "the variation of the time spans for the warning lights" and "the limited space between the wall of the bridge and the oncoming trains". It may well be that his Honour assessed the objective seriousness of the offence in an excessive amount, as claimed by ground (1) in the notice of appeal, but, in our view, it cannot be said his Honour mis-stated or misunderstood the essential nature of the offence itself. Ground (4) must fail.
23 It is apt while considering the nature of the obligation cast on an employer to maintain a safe workplace to repeat the words of Hill J, with which we agree, in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at p 85, that is :
This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.
24 It has been said repeatedly in this Court that the general approach to sentencing under the Occupational Health and Safety Act is now settled in that the primary factor to look at is the objective seriousness of the offence: see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at p 475; Fletcher Construction (91 IR at pp 77-78); and Warman International (80 IR at p 339). However, it seems to us, in order for the Court to perform that task the offence charged needs to be accurately identified. Here, it may well be, and as Mr Agius submitted, that the real or direct cause of the accident was Mr Franklin moving to an unsafe position underneath the overhead bridge as a result of which he sustained injury. That is to be seen, however, and as Maidment J found, where there was "limited clearance between the wall and the rail, in circumstances in which the warning system as to oncoming trains was inadequate". One is reminded in such a situation of the relevant distinction for sentencing purposes between the immediate cause and the prior steps being the detriment to safety enabling the cause to operate and to which the charge is essentially directed. In WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at pp 43-44, Hungerford J commented on the distinction as follows :
I accept [senior counsel's] submission that the causa causans of the accident was the use of the industrial hammer to strike the legs of the structure. However, that was only the immediate cause of the collapse and which cause could not have become operative without the defendant's failure to assess the stability of the structure on the day it was to be demolished and to provide adequate supervision to ensure the planned system was followed. Put another way, although the causa causans may seem innocuous enough, and as not involving very much culpability on the part of the defendant itself, the real failure here by the defendant to provide or maintain a safe system of work was the causa sine qua non being the preceding link in the chain of causation in failing to assess the structure's stability by adequate supervision at the time it was to be demolished; the failure to ensure work was not performed on the structure prior to the arrival of the mobile crane was contrary to the proposed method as originally planned.
25 It is relevant also in the present case to repeat the proposition that inattention or mere inadvertence of an employee serves to show only the need for an employer to be astute in ensuring safety and in meeting all reasonable contingencies: see WorkCover Authority of New South Wales (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 at p 135 per Hungerford J. Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995) correctly and forcefully emphasised (at p 18) that "the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry".
26 Ground (3) of the appeal alleged Maidment J erred in finding that the appellant retained responsibilities for employees of Rail Services Australia who now performed the painting functions following the restructure of the appellant as from 1 July 1996. This point, as the argument went, involved the appellant's submission that his Honour overly allowed for the deterrence component of penalty whereas because of the actual loss of such a responsibility the defendant should not have incurred a higher penalty for specific deterrence from similar conduct in the future. In finding difficulty with that proposition, his Honour observed the appellant retained responsibilities for employees of Rail Services Australia performing painting functions as a consequence of ss 16 and 17 of the Occupational Health and Safety Act . However, a consideration of this ground must proceed in the context of the whole of his Honour's reasoning and, in particular, the appellant's submission at first instance that convictions of the appellant prior to being divested of many of its functions and responsibilities as from 1 July 1996 had no relevance against the appellant in its current form unless they related to an activity retained by it in its restructured form. His Honour rejected that proposition but nevertheless accepted that the appellant's antecedents were to be seen against the perspective of its then scale of operations. Mr Agius conceded the evidence before his Honour did not make it absolutely plain whether the two employees were no longer employed by the appellant or that their functions had passed to Rail Services Australia or that the appellant no longer had control of the track, signals and warning systems; even so, senior counsel submitted that without evidence of a continuing control in the appellant no adverse finding on this point could be made against it.
27 The place of deterrence in fixing an appropriate penalty was considered extensively by the Full Bench in Capral Aluminium (99 IR at pp 59-62). Their Honours found a useful starting point to be what was said by Street CJ in R v Rushby [1977] 1 NSWLR 594 at p 597 in which the Chief Justice adopted the decision of the Court of Appeal in New Zealand in R v Radich [1954] NZLR 86 at p 87 for the proposition that "one of the main purposes of punishment … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment". Although recognising that general deterrence and specific deterrence have differing purposes or aims, of relevance here where the painting operations on the rail network were the responsibility of either the appellant or Rail Services Australia is the express endorsement by their Honours in Capral Aluminium (99 IR at p 60) of the following extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at p 388 as accurately stating the approach to be adopted in relation to the issue of deterrence, both general and personal or specific, when sentencing an offender for a serious breach of the legislation :
… the fundamental duty of the Court in this important area of public concern … [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.
28 After reviewing the authorities on deterrence, their Honours in Capral Aluminium (99 IR at p 61) referred to the need to encourage a sufficient level of diligence by the offender in the future, particularly where it conducts a large enterprise involving inherent risks to safety, and then observed :
We would have considered that this approach was appropriate even before the significant increase in levels of penalty were legislatively imposed effective from 1996. However, that legislative step is itself relevant to this question. As Spigelman CJ held (with the concurrence of Wood CJ at CL and McInerney J) in R v Howland (1999) 104 A Crim R 273 at pars 41 and 43:
"41 … the community has indicated that it wishes to denounce this conduct in the strongest terms. … By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern.