WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd

PROSECUTOR Mr M P Cahill of counsel WorkCover Authority of New South Wales

LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson of counsel Clayton Utz Solicitors

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

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR TYLER) v ABIGROUP CONTRACTORS PTY LTD Prosecution under s.15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2000] NSWIRComm 40

1 These proceedings involve a prosecution instituted by Inspector Ian Frederick Tyler, an inspector of the WorkCover Authority of New South Wales, against Abigroup Contractors Pty Ltd. Mr Tyler (the prosecutor) is authorised by s 48 of the Occupational Health and Safety Act 1983 (the Act) to institute proceedings under it. Abigroup Contractors Pty Ltd (the defendant) is a company incorporated in New South Wales with its registered office in Pymble, New South Wales.

2 The prosecution is for an alleged breach of s 15(1) of the Act, which provides: Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

3 The breach was allegedly committed by the defendant on 4 November 1996 at the construction site of the M2 Motorway at North Ryde where employees of the defendant were required to carry out an alteration in the width of an SF3004 Concrete Paving Machine, provided for their use by the defendant.

4 At the time of the alleged breach, Scott Andrew Nicholls, an employee of the defendant, received fatal injuries whilst carrying out the reduction in width of the Concrete Paving Machine when the machine collapsed without warning.

5 The prosecutor tendered, with the consent of the defendant, an amended summons. In the amended summons, it is alleged that the defendant on 4 November 1996 at a site known as the M2 Motorway, North Ryde, New South Wales, did fail to ensure the health, safety and welfare at work of all its employees, and in particular Scott Andrew Nicholls, Danny Fitzsimmons, Wayne Armitage and Russell Kay, contrary to s 15(1) of the Act, in that the defendant failed to provide a safe system of work for the alteration in the width of an SF3004 Concrete Paving Machine provided to its employees for their use.

6 It is alleged, in particular, that the defendant failed to ensure that the complete procedure to be followed in reducing the width of the machine was properly documented, and the defendant failed to ensure that a safe procedure was adhered to.

7 The defendant was represented at the hearing of the proceedings by Mr B D Hodgkinson of counsel. The prosecutor was represented by Mr M P Cahill of counsel. The defendant entered a plea of guilty in respect of the charge.

8 An agreed Statement of Facts relevantly in the following terms was tendered by counsel for the prosecutor, again with the defendant's consent: 3. Hills Motorway Pty Limited contracted Abigroup/ Obayashi joint venture to design and construct the M2 Motorway. Abigroup Contractors Pty Ltd was sub-contracted to construct part of the M2 Motorway at North Ryde, New South Wales (the "site").

On 4 November 1996 ("the day") Scott Andrew Nicholls, age 29, employed by the defendant as a concrete finisher, was fatally injured at the construction site of the M2 Motorway, North Ryde, New South Wales. At the time of his death, Nicholls was assisting in the reduction of the width of a concrete paving machine.

The concrete paving machine on which Nicholls was working at the time of his death was known as an SF3004 Concrete Paving Machine ("the Machine"). The Machine was used to lay the concrete for the road surface. The Machine consisted of a horizontal bridge type configuration (see Photograph No 22 attached in Annexure 1).

On the day, Inspector Murray Roy Brighton attended the site and made the following observations whilst standing in front of the Machine: (i) The machine spanned several metres and was supported on four tracks at each end of the Machine. The Machine appeared to have collapsed, forming a "V" shape, and was resting on the ground at the time of inspection (see Photograph No 2 in Annexure 1). (ii) The Machine comprised of the main chassis frame superstructure which supported the motor and controls for the Machine. (iii) On the right hand side of the main chassis structure (which was located on the eastern side) the Machine had a pair of telescopic adjustable beams that were capable of sliding inside the main chassis structure to allow the Machine to be reduced or increased in width (see Sketch No 1 in Annexure 2). (iv) On the left hand side of the main chassis structure (the western side) was a pair of 1.830 metre long extension beam sections that were bolted to the flange plates of the main chassis structure. The pair of telescopic adjustable beams were capable of sliding inside the 1.830 metre beam extensions and into the main chassis structure (see Sketch No 1 and Section AA View in Annexure 2). (v) A large shifting spanner with extended handle lay adjacent to Scott Nicholls who was located underneath the Machine. At the same place, two ring spanners and nuts and washers were lying on the ground (as shown in Photograph No 6 in Annexure 1). (vi) The northern side of the Machine (as indicated in Photograph No 7 in Annexure 1) shows the opposite side of the Machine. The Machine beams supporting structure was observed to be in collapsed "V" shape configuration. On site was a blue box containing nuts, bolts and washers that appear to have been removed from the flange plate. (vii) From the measurements taken (and shown in Photographs No 17 & 33 in Annexure 1) the adjustable telescopic sliding beams had projected through the pair of 1.830 metre beam extension sections into the main chassis superstructure beams by approximately 285 millimetres from where Scott Nicholls was stuck. (viii) The beam connection flange plates on the southern side had one bolt remaining in position and bolted from the main chassis side (this is depicted in Photographs 9, 10 & 11 in Annexure 1). The bolt had metal remaining on the last two turns of the bolt (the bolt is shown in Photograph No 46 in Annexure 1). Inspector Brighton took possession of the bolt. (ix) The manufacturer's compliance plate (depicted in Photograph No 4 in Annexure 1) states the following: 1. CMI Corporation Oklahoma City USA 2. Model Number 55148 3. Engineering Model Number SF-3004, Basic 4. ARR545101SN545105 5. Date Code 9608 6. Engine Power 325 HP/242 KW 7. 42,000 Pounds 8. 19068 Kilos N/N1 10168

On 8 November 1996 Inspector Brighton in the company of Inspector Swee Foong, a senior engineer from WorkCover, revisited the site at North Ryde and commenced inspection of the Machine. The Machine had now been separated and raised for inspection. It was supported on four support stands (as depicted in Photograph No 30 in Annexure 1). The following observations were made: (i) Measurements were taken of two CMI Corporation manufactured support stands (see Photograph No 23 in Annexure 1). The stand measured 1.7 metres long with 150 millimetre square round hollow section with a 300 millimetre square based plate. Connected to the main chassis superstructure were a further two stands (see Photograph No 30 in Annexure 1) connected to the 1.830 metre beam extension sections. (ii) The main chassis structure of the Machine had four (4) flange plates (see Section AA of Sketch 1 in Annexure 2 and Photograph No 34 in Annexure 1). The flanges had thirteen (13) holes in each flange plate and where a pair of 1.830 metre extension beams had been connected on both sides of the Machine. (iii) Of the total of 13 holes in the flange (see Photograph No 34 in Annexure 1) some were designed to accept conventional bolts, washers and nuts, while other holes were designed with an internal thread to receive bolts only. (iv) On the northern end of the main chassis structure, distinct shiny marks on the metal at the bottom of the main chassis beam were observed and measured to be approximately 18 millimetres from the edge (see Photographs No 45 in Annexure 1). (v) The main chassis structure beam on the southern side (accident side) shows the design of the sliding beams extending into the main superstructure chassis. This is the same design on the adjacent side of the Machine on the northern side. This allows the telescopic sliding beams on both sides of the chassis structure to pass each other for machine width adjustment (see Section AA of Sketch 1 in Annexure 2 and Photograph No 37 in Annexure 1). (vi) Inspector Brighton was advised by Keith Cassin, Plant Foreman for the defendant, that after the accident the flange plates had five threads that were stripped out and required caterpillar inserts to be fitted to repair the damage.

On the day at the site, Scott Nicholls was working as part of a crew of concrete finishers under the supervision of Russell Kay, a leading hand employed by the defendant. Other members of the concrete finishing crew on the said day were Scott Smith, Danny Fitzsimmons, Wayne Armitage and Danny Tetanui. At about 7:50am, Nicholls and Fitzsimmons were attempting to reduce the width of the Machine. Several bolts had been removed from the two flange plates that joined a pair of 1.830 metre beam extension sections that connected to the main frame of the chassis structure of the Machine.

Just prior to the collapse of the Machine, Scott Nicholls was located under the Machine holding on to the bolt header with a spanner. A co-worker, Danny Fitzsimmons, was adjacent to him, in a position outside the Machine turning the nut of the bolt, when, without warning, the Machine collapsed. The collapse occurred at the flange plate, directly above where Scott Nicholls was lying.

The Machine was commissioned to lay concrete on the M2 Motorway in May 1996. A field engineer employed by the manufacturer worked with the paving crew for a period of time and gave basic instructions to staff of the defendant. The manuals accompanying the Machine arrived at the site on or around 28 May 1996.

The person nominally in charge of the Machine including any adjustments which were to be made to it was David Hall, a foreman employed by the defendant. David Hall had carried out some fifty (50) changes in width on machines of a similar design. The machines of a similar design were known as the Suburban Paving Machine SP22003 (the "Suburban Paving Machine").

The manual supplied with the Machine is attached. See in particular section 4, pages 29 to 33 inclusive and pages 37 to 43 inclusive. This is attached as Annexure 3. Hall devised and used his own methodology for the carrying out of each of the steps set out in the manual. The defendant relied on Hall's methodology which had not been reduced to writing or otherwise documented for the benefit of workers required to carry out alterations to the width of the Machine.

Both the Suburban Paving Machine and the Machine had a similar telescopic configuration in design.

Hall alleges that he notified his supervisor, Geoffry Lidden, in May 1994 that the guidance in the manufacturer's manual was inadequate regarding the Suburban Paving Machine. Hall also alleges that he complained to Richard French, Maintenance Manager for the defendant, in June 1996 that the Machine manual did not give adequate guidance. Hall alleges that he received no response from French. Hall claims that he informed both Lidden and French that the information contained in the manuals for the machine did not clearly explain how to remove or install the beam extension sections.

Richard French states that he did take some action in that he contacted Mr Shapin Sipherd of the manufacturer, CMI Corporation in the United States. French was advised by CMI Corporation that a revised manual would be available in late 1996. No further action was taken by either David Hall or Richard French to clarify the recommended work procedure of the manufacturer and the Machine continued to be used by the defendant. David Hall's own procedure was used up until the fatal accident to Scott Nicholls. After the accident, the defendant developed a work method statement which in part provided for the training of the concrete finishers on the use of the Machine ("Annexure 4"). The work of altering the width of the Machine is now carried out by concrete finishers who are supervised by appropriately trained and qualified fitters. The revised CMI Corporation Manual was made available to the defendant's employees in December 1996. There were no relevant substantive changes in the revised manual. 16. (i) Although the Machine was commissioned in May 1996, it was not until September 1996 that the Machine had to be altered in width. In September, the Machine had to be widened. This was achieved by the installation of a pair of 1.830 metre extension beam sections. On this occasion, David Hall supervised the said extension. Russell Kay assisted Hall at the relevant time. Support stands were put in place prior to the placement of the extension beam sections. (ii) The Machine required an alteration in width again in November 1996. On this occasion, there was a need to decrease the width of the Machine. This required the removal of the pair of 1.830 beam extension sections. On this occasion Hall assigned the task to Russell Kay, to whom he spoke prior to taking leave on 31 October 1996. Hall believed Kay was capable of carrying out the task. Kay was a qualified fitter and turner who had previously carried out many main frame changes on the Suburban Paving Machine as well as stripping the Machine. Hall alleges he instructed Kay to reduce the paver from 7.5 metres to 2.6 metres. 17. Hall alleges that he instructed the concrete crew in how to install and remove the extension. It is agreed that: (a) Hall supervised the installation of the extension and gave oral instruction in that regard. (b) Hall was not present on the day of the subject incident whilst the extension was in the process of being removed from the Machine for the first time. (c) Scott Smith who was a member of the crew on the date of the incident was not present during the installation of the extension. 18. On the day of the accident four crew commenced removing bolts from flange plates located on the telescopic sliding beam. According to Kay, he and the crew assumed the internal sleeve arm extended sufficiently to allow all the bolts to be removed without the stands in place.

19. Fifteen minutes prior to the collapse John Myers, a boiler maker had called at the work site where the adjustment was being carried out on the Machine by Kay and the others. Myers had been requested to deliver a ¾ rattle gun for the removal of the nuts and bolts.

20. Myers had been involved in the alteration of the Suburban Paving Machine, but not of the Machine, on approximately twenty (20) occasions. Myers knew that the first step was to put in place the stand and the second step was to undo the inside bolts. On the previous occasion in September 1996 when the Machine was expanded, both Myers and Kay were present when the stands were put in place prior to the removal of any bolts.

21. (i) According to David Hall in a statement provided to Inspector Brighton on 9 December 1996, the normal system of work used to adjust the Machine was as follows: "If the machine still had pan kit on we lower pan kits onto blocks and undo all electrical, hydraulic and cable to main frames, undo centre hangers for outside logging pins, walk main frame slowly backwards, lift main frame fully, take catwalks, handrails, steer cables off main frame, place stands on side of main frame that is going to be altered, lower main frame onto stands, take steering jacks off two legs then proceed to remove section. That is as far a CMI Operations Maintenance Manual tells you. The procedure followed from here is one that I have developed over the last seven and a half (7½) years. Loosen belly plate bolts, extend telescopic main frame to give enough clearance to slide section out, undo inside bolts then undo completely belly plate bolts on the same section, connect crane and lift section out. Retract telescopic main frame to required width, tighten belly plates. This procedure is to shorten paving main frame width." (ii) The manufacturer's manual was available at the site office. 22. The defendant, ABIGROUP CONTRACTORS PTY LTD [ACN: 000 201 516], has had no prior convictions.

The prosecutor also tendered three records of interview with Mr Hall.

9 The defendant relied upon a detailed affidavit of Mr Ronald James Yates. Mr Yates is the Group Manager, Contract and Management Services of Abigroup Limited, the defendant's holding company, and he deposed that he had held this position for a period of approximately three to four years. His affidavit continued: Company Background 3. Abigroup was first established in 1961 as a private company. It was listed on the stock exchange in the early 1980's. Abigroup is now a major Australian publicly listed infrastructure and construction company specialising in civil engineering and building construction, mining works, project management and various maintenance activities.

4. Abigroup participates in a wide range of major developments in New South Wales and throughout Australia. Details of some major projects either currently in progress or recently completed are included in the 1999 Abigroup Annual Report, a true copy of which is annexed to this Affidavit and marked with the letter "A".

5. Abigroup now has over 2,300 full-time and casual employees. The annual turnover of Abigroup is in excess of $700,000,000. Of these employees, approximately 750 full-time employees work for Abigroup Contractors Pty. Limited ("Abicon").

6. The average number of subcontractors that would be working for Abicon at any particular time would be in the order of 800 Australia-wide. Approximately 350 of these subcontractors work on civil construction and building sites in New South Wales.

7. Included in the 1999 Annual Report (Annexure A) is a diagram indicating the Abigroup structure. This shows the relationship between Abicon and the parent company, Abigroup. There is, on page 64 of the Annual Report, a listing of Abigroup and its controlled entities or subsidiaries. To the best of my knowledge and belief, there have been no previous convictions in respect of health and safety recorded against Abigroup or its subsidiaries in New South Wales or the rest of Australia.

Management Services System incorporating occupational health, safety and rehabilitation 8. Abigroup has:

(i) A third party certified quality assurance system that conforms to AS/NZS ISO 9001-1994, Quality Systems - Model for Quality Assurance in Design, Development, Production, Installation and Servicing,

(ii) An occupational health and safety system that conforms to AS/NZS 4804-1997, Occupational Health and Safety Management Systems - General Guidelines on Principles, System & Supporting Techniques.

(iii) A third party certified environmental management system that conforms to AS/NZS ISO 14001-1996 Environmental Management Systems - Specification with Guidance for Use.

Abigroup's occupational health, safety and rehabilitation system has also been granted New South Wales Government accreditation. In this respect, annexed to this Affidavit and marked with the letter "B" and "C" are true copies of 2 letters from the Construction Policy Steering Committee of the New South Wales State Government dated 18 September 1995 and 18 June 1999 respectively. These letters confirm the certification of the Abigroup system. The Abigroup systems are implemented on all Abicon works.

Abigroup has developed an integrated management services system which incorporates the management systems covering the areas of quality, occupational health, safety and rehabilitation and environmental management. The system is documented as 3 separate volumes: the first is a Management Services Manual which covers areas of policy annexed to the Affidavit and marked with the letter "D" the second is a volume of Management Services System Procedures which are working documents indicating how the management services system is to be implemented and maintained, annexed to this letter and marked with the letter "E" and the third is a Management Services Plan which is developed for each construction site annexed to this Affidavit and marked with the letter "F".

The reasons behind this integration can be seen by reference to the Introduction on page 5 of 41 of the Management Services Manual (Annexure D), which references the various Australian and international standards covering quality, OHS&R and environmental management. These standards provide guidance as to how an integrated approach to management systems should be taken. Subsequent to Abigroup starting on the integration path, Australian Standard AS/NZS 4581-1999 Management System Integration - Guidance to Business, Government and Community Organisations has been issued which provides further guidance as to the integration of management systems.

At the time of the accident on the M2 Motorway there were 3 separate management systems which covered quality, OHS&R and environmental management. Although these previous systems addressed appropriately the requirements of the various standards, the integration of these systems into one uniform management services system ensures that attention is directed on site to every aspect necessary for the maintenance of high standards of compliance.

The process of integration has taken place over a period of approximately 2 to 2½ years. The system now in place is the end product of a process of continuous improvement over that period. The system was improved by the use of feedback from the end users of the system including, but not limited to, the project sites. 14. Abigroup's approach to occupational health and safety at a corporate level is indicated by reference to the occupational health and safety policy signed by the chief executive of Abigroup. This document can be found in the Management Services Manual at page 8 of 41.

15. Auditing of the Management Services System, particularly in respect to OHS&R conformance is carried out internally on a regular basis on each site. In addition to audits performed by Abigroup to maintain the system, audits are also carried out by clients. Clients who have audited the system recently include the Roads & Traffic Authority and Sydney Water. 16. In addition to internal and client audits, WorkCover have carried out OHS&R audits on construction sites where private clients are involved, pursuant to the authority conferred upon WorkCover in this regard.

However, WorkCover now perform audits on all or any of Abicon's construction projects. This is a result of undertakings made by Abicon, other major construction companies, industry associations, and trade unions with the New South Wales State Government. A true copy of the memorandum of understanding signed by all parties is annexed to this Affidavit and marked with the 1etter "G". The memorandum has been executed by Abicon and other parties and by the Attorney-General, Minister for Industrial Relations and Minister for Fair Trading, Mr Jeff Shaw QC and the Minister for Public Works and Services, Mr Ron Dyer on behalf of the Government. Details relevant to the M2 Tollway Site

For the operation of Occupational Health and Safety Committees, the M2 site was split into 2 areas. The first of these areas covered the general construction works including earthworks, whereas the second area covered the concrete paving activities. Two separate Occupational Health and Safety Committees were therefore set up.

Paving operations on the M2 site commenced early in 1996. The Committee comprised of 2 Abicon staff members and 2 employee representatives. The Abicon staff members were Mr Rob Blyth and Mr Chris Bryce who were engineers working for the paving operation. The employees' representatives were Mr Darryl Miller who had extensive experience as a paving operator and is now a foreman with Abicon and Mr Tim Friend who is a leading hand, concrete finisher and labourer with the paving operation.

The Occupational Health and Safety Committee held regular meetings and carried out regular inspections usually on a monthly basis of the paving activities at the site. In addition other safety inspections were carried out by Mr P Barfield who was employed as a full-time Occupational Health and Safety Officer on the site.

In respect of training relating to occupational health and safety issues on the M2 site, records of training for staff members indicate that at the time of the accident, approximately 25 to 30 staff members had been sent to various OH&S related courses. These courses included OH&S for Managers, OH&S for Supervisors, OH&S Workplace Committee courses, OHS&R Management System Training, Safety Management and Foremen and Supervisor Safety Courses. The people trained on the site included engineers, superintendents, foremen, administrative staff and surveyors.

After the accident on the M2 site, documented work procedures were developed for the connection and disconnection of the pan section to and from the mainframe of SF3004 and 600 concrete paving machines and also for altering the width of the paver mainframe for the SF3004 concrete paving machine. Courses were run on site to ensure that personnel were familiar with these new work procedures. A copy of these procedures is annexed to this Affidavit and marked with the letter "H".

These work procedures and others have been developed, reformatted and incorporated in a series of meeting notes called Toolbox Meetings, used for ongoing training of paving personnel on the site including enhancing the training provided by Abicon in respect of the paving operations. True copies of these Toolbox Meetings are annexed to this Affidavit and marked with the letter "I". (the annexures have not been reproduced) Submissions of the parties 10 Counsel for the prosecutor provided detailed submissions in written form which were supplemented during the proceedings. It is convenient to note the terms of the written submissions, which were as follows:

Sentencing procedure: In sentencing a Defendant for a breach of Section 15(1) of the Occupational Health & Safety Act , 1983 the approach to be adopted by the Court is that outlined by the Full Bench of the Industrial Relations Commission of New South Wales in Court Session in Warman International Limited v The WorkCover Authority of New South Wales (1998) 80 IR 326 at 339-340.

Objective features: 1. The penalty to be imposed on a Defendant should reflect the objective circumstances of the crime. It is important to determine a sentence which accurately reflects the gravity of the particular offence viewed objectively: Each crime ... has its objective gravity … (See: R v Dodd (1991) 57 A Crim R 349 at 354)

That is, as observed by the Full Court:- The penalty must reflect the nature and quality of the particular offence ... ( Warman International Ltd ). 2. Once the objective circumstances of the crime have been determined, it is essential that the Court ensures adequate weight is given to those circumstances: The level of penalty must ... compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their work places ... (See also: Rushby (1977) 1 NSWLR 594; Haynes v James Glass & Aluminum Pty Limited (No. 772 of 1991 Unreported 1994) per Fisher CJ as cited in Viesis v Thiess Contractors Pty Limited (No. CT121 of 1994 - Full Court of the Industrial Court, Unreported, 19 April 1996 at pages 35 to 36). 3. In the present case there are a number of objective features which call for the imposition of a substantial monetary penalty: (i) The maximum penalty prescribed by Parliament for the subject contravention of Section 15(1) of the Act by the Defendant corporation is 5,000 penalty units (Section 15(3)). At the time of the subject incident the value of each penalty unit was set at $100.00 and as a consequence, the maximum penalty applicable to an offence committed by the Defendant corporation is $500,000.00. [See: Sections 55 and 56 of the Interpretation Act , 1987)

(ii) The provision of a maximum penalty of $500,000.00 for contravention by a body corporate of Section 15(1) of the Occupational Health & Safety Act 1983 (As Amended) sets the upper limit against which an appropriate fine is to be determined;

(iii) The maximum penalty available for an offence reflects the "public expression" by Parliament of the seriousness of the subject offence: ( R v H (1983) 3 A Crim R 53 at 65); (iv) The maximum penalty is provided in relation to a worse case scenario and "[it is the task of the Court] to assess the relative seriousness of the offender's particular offence in relation to a worse case [scenario]"; and

(v) "The penalty to be imposed is that which approximately correlates upon the scale of penalties set by the Legislature from zero to the maximum ..."[See: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698]. 4. General deterrence is also to be given significant weight in determining the appropriate penalty to be applied. In this regard, a small or nominal fine will not satisfy the element of general deterrence, let alone the requirement for punishment. The imposition of a small or nominal fine, in respect of a serious breach of the Occupational Health & Safety Act , 1983 has little or no effect as a deterrent to other possible offenders. [See : EPA v Capdate Pty Limited & Phillips (1992) 78 LGERA 349 at 353]. Further, as a matter of public policy, management has a positive obligation to inform itself of proper and safe working methods and a positive obligation to ensure that proper safe working methods are adopted within work places under their control. [See: WorkCover Authority of New South Wales (Inspector Gregory Dawson) v Waugh & Thora Sawmilling Ply Limited (1995) 59 IR 89 at 95-96]. A failure on the part of a Defendant to inform itself of proper and safe working methods and a failure to ensure that proper and safe working methods are adopted, as occurred in the present case, are aggravating factors which must be taken into account in assessing the appropriate penalty. 5. In this regard, it is submitted that the following factors are indicative of the serious nature and quality of the subject offence: (i) The employee nominally in charge of the concrete paving machine, including any adjustments which were to be made to it, was David Hall; (See: paragraph 11 of the Statement of Facts)

(ii) Mr Hall maintains that he notified his supervisor, Geoffrey Lidden, in May 1996 and Mr Richard French, the Defendant's Maintenance Manager, in June 1996 that the manufacturer's manual did not give adequate guidance with respect to the procedure to be adopted in adjusting the concrete paving machine, in particular extending and contracting the width of the concrete paving machine using the telescopic extension beams; (See: paragraph 14 of the Statement of Facts)

(iii) Mr Hall devised and utilised his own method for carrying out each of the steps involved in the extension and/or contraction of the concrete paving machine; (See: paragraph 12 of the Statement of Facts)

(iv) Mr Hall did not reduce this methodology to writing, and/or otherwise document that methodology; (See paragraph 12 of the Statement of Facts)

(v) The Defendant corporation did not take any steps to assess or review Mr Hall's procedure prior to the subject accident; (See: paragraph 15 of the Statement of Facts)

(vi) The Defendant corporation did not seek to obtain clarification of the manufacturer's recommended work procedures prior to the subject accident; (See: paragraph 15 of the Statement of Facts)

(vii) As a consequence, the paving crew, who were required to carry out alterations to the width of the concrete paving machine, did not have access to a properly documented safe working method; (See: paragraph 12 of the Statement of Facts)

(viii) The accident occurred during the course of the first contraction of the concrete paving machine;

(ix) It is conceded that the Defendant's employees had been involved in the adjustment of similar equipment on previous occasions and those present on the day, excepting Scott Smith, had worked on the extension of the concrete paving machine in September 1996 and that Mr Hall was present during the extension of the concrete paving machine; (See: paragraph 17 of the Statement of Facts). As noted above, the procedure for width adjustment of the concrete paving machine had been identified by Mr Hall as inadequate. Inadequacy of the manufacturer's manual had been brought to the attention of senior management. Mr Hall had developed his own procedure for carrying out each of the steps identified in the manual as part of the width adjustment procedure but, neither Mr Hall nor his supervisors took steps to ensure that the relevant procedure was properly documented. 6. It follows that on the day of the subject accident, the concrete paving crew were left without access to a properly documented procedure. In the absence of Mr Hall, the absence of a properly documented procedure proved fatal.

7. Having regard to the nature and construction of the concrete paving machine, it is submitted that, in the absence of a proper, safe working procedure, adjustment of the concrete paving machine involved an obvious and grave risk of injury to the workers involved.

8. As a general principle, neglect of well known precautions in circumstances where there is a major risk of injury is indicative of the serious nature of the offence and moves the offence towards the "worst case" category: [See: Inspector Roy Thomas Milligan v Roads & Traffic Authority (Unreported, Fisher CJ, 20 August 1996 at page 14); and Haynes v James Glass & Aluminum Pty Limited per Fisher CJ].

9. In the circumstances, it is submitted that the failure of the Defendant corporation to ensure its employers were provided with a properly documented safe working method and its failure to ensure that such a method was effectively followed by its employees highlights the seriousness of the subject offence and moves the offence towards the worst case category. 10. Further, the fact that an evident potential danger resulted in the death of a worker serves to reinforce the serious nature and quality of the offence committed by the Defendant. In this regard, it is submitted that the penalty imposed should reflect the serious nature and quality of the Defendant's offence and the serious consequence, namely the death of Mr Nicholls, which flowed from it: The occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety. [See: Independent Cargo & Wool Services Pty Limited v Inspector Paul Mingare , (Industrial Court of New South Wales, Unreported 10 March 1994 at page 4) and Tyler v Sydney Electricity (1993) 47 IR 1 at 5 per Hill J]. 11. The fact that other workers were also exposed to an easily identified risk of injury adds further to the seriousness of the Defendant's contravention of the Act. Subjective features: 1. In determining the appropriate penalty to be applied, the Defendant is entitled to have taken into account its subjective features which mitigate the objective seriousness of the offence. In the present case the following subjective factors are relevant:

(a) The Defendant's plea of guilty; (b) The Defendant's co-operation; (c) The WorkCover Authority in the investigation of the subject incident; and (d) The measures implemented by the Defendant since the subject incident.

2. By virtue of Section 439 of the Crimes Act , 1900 (As Amended), the Sentencing Court is specifically required to take the plea of guilty into account in the Defendant's favour in assessing the appropriate penalty to be imposed. Where appropriate, a plea of guilty should attract a discount for utilitarian considerations, sufficient to encourage Defendants to enter pleas of guilty. In determining the degree of discount which should apply in a particular case, regard must be given to the following factors: (a) The strength of the Crown's case; (b) Time at which the plea is entered; and (c) The savings to the State of Court's time and the saving to the State of the costs of a trial.

3. In addition, a plea of guilty may attract a greater degree of leniency where, in addition to the factors set out above, it reflects contrition on the part of the Defendant: [See: Winchester (1992) 58 A Crim R 345 at 350 per Hunt CJ at CL].

4. In addition, the Defendant is also entitled to a discount for co-operating with the authorities. The degree to which a discount should be granted for co-operation depends upon the degree of assistance provided by the Defendant. [See: Cartwright (1989) 17 NSWLR at 243; Gallagher (1991) 21 NSWLR at 220] In the present case the Defendant is entitled to a discount with respect to the co-operation it provided to the WorkCover Authority in its investigation of the subject incident.

5. The Defendant is also entitled to have its good record taken into account in mitigation of the sentence to be imposed. In this regard, it is confirmed that the Defendant corporation is not adversely recorded in any way. Conclusion: 1. In assessing the appropriate penalty it is incumbent upon the Court to ensure that the ultimate result finds an appropriate balance between the objective seriousness of the offence and the Defendant's subjective features. It is essential that "[a] Court ... not reduce a sentence so that the sentence becomes unreasonably disproportionate to the nature and circumstances of the offence." [See : R v Huang (1995) 78 A Crim R 111. See also: Lawrenson Diecasting Pty Ltd v The WorkCover Authority of New South Wales. ]

2. It is submitted that the nature and quality of the Defendant's departure from good industrial practice is significant and highlights the seriousness of the subject offence.

3. Having regard to the clear intention of Parliament that significant penalties be imposed where the safety standards established by the Occupational Health & Safety Act , 1983 have been breached to the serious detriment of workers, it is submitted that the Court should impose a significant financial penalty commensurate with:- (a) The need for condign punishment having regard to the serious nature and quality of the subject offence; (b) The need for general deterrence - that is a penalty sufficient to "compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their work places ... "[See: Warman Limited v WorkCover Authority of New South Wales ] and (c) The need for particular deterrence. (limited typographical corrections have been made). 11 Counsel elaborated the submissions by drawing attention to the records of interview between the investigating inspector, Inspector Brighton, and Mr David Hall. Mr Hall is referred to in paragraph 11 of the Statement of Facts as the foreman with responsibility for overseeing the machinery in question, including oversight of some 50 changes in the width of other machinery. Counsel emphasised that Mr Hall regarded the procedure manual relating to the machine as deficient and he therefore developed his own methodology. Mr Hall had put in place his own particular methodology which replaced the procedure manual in so far as the particular workers were concerned.

12 The prosecution submitted that it is apparent and agreed between the parties that the accident happened because the safety stands were not attached to the machine at the relevant time. Clear reference is made to that in the statement of facts and in particular the record of interview of 9 December 1999 with Mr Hall at pages 4 and 5. At the foot of page 4, Mr Hall in answer the question "Why do you believe the paver collapsed?" answered, "No safety stands." It was apparent that Mr Hall was well aware of the magnitude of the risk because he gave the answer "Death" to the question "What are the risks involved?". There was no risk analysis in respect of the procedure in a work safety procedure document that had been developed by the defendant.

13 Mr Hall indicated that both Mr Lidden and Mr French (respectively, his supervisor and the defendant's Maintenance Manager) had been told about the problem but it is apparent that the problem was not addressed and the method Mr Hall developed in answer to the problem was not documented. It was not reviewed and ultimately, on the day in question, to the extent that the method was available, it was not followed. Counsel submitted that this failure lay at the heart of a simple occupational health and safety system. A basic ingredient in proper occupational health and safety involves the need to provide properly documented work systems, and the need to properly implement them. In the circumstances of the case, there was a breakdown in the occupational health and safety system which resulted in a serious breach of the legislation. Given the fact that the defendant was on notice of the deficiency in the available documentation and was aware that Mr Hall developed his own undocumented methodology, it was submitted that the breach places the case in a most serious category.

14 The prosecution submitted that the emphasis placed by the defendant upon the accreditation in September 1995 by a government body of the defendant's safety policy was overstated. However good the paper system was prior to the incident, a simple and essential matter such as the provision of a written, safe working method for what was an inherently dangerous task was not merely overlooked, but was specifically brought to the defendant's attention and still not rectified. That fact, added to the tragic results of the accident, highlights the serious nature and quality of the offence. The prosecution submitted that this is a matter in which the objective factors call for the imposition of a condign penalty. It was, however accepted that the plea could be considered as an early plea of guilt for the purpose of the proceedings.

15 Counsel for the defendant made detailed submissions both in relation to the circumstances of the accident and in the nature of a plea in mitigation. Counsel denied that there was a fundamental breach of safety on the basis of a lack of documentation of the safety procedure to be followed when altering the width of the machine. The defendant accepted that there were deficiencies in the manual in place at the time of the accident. However, the defendant contended that those deficiencies did not relate directly to the detriment to safety which caused the accident, that is, the failure to install stands prior to adjusting the machinery. That requirement was clearly dictated by the manual.

16 The defendant necessarily accepted that stands were not installed prior to adjusting the machinery as was required by the manual on the day of the accident. In that sense, counsel conceded that the defendant failed to ensure that a safe procedure was adhered to. Nonetheless, it was submitted that this is a case in which there was a safe system of work in place, and that system was not followed for reasons which were unexplained. Further, although it was accepted that the procedure could have been better documented, this was not a case where the procedure was not documented. In assessing the culpability of the defendant and seriousness of the offence, it is appropriate to take into account that this is not a case in which the necessity of implementing a safe system of work was disregarded nor a case in which the particular risk of safety was neglected. The culpability was not at the highest levels.

17 Counsel for defendant also made substantial submissions in mitigation of penalty. These submissions were largely directed at establishing the good safety record of the defendant and the fact that the company has a proven commitment to promoting safety through its operations. In this regard, counsel relied heavily upon the affidavit of Mr Yates and the annexures to that affidavit. The affidavit of Mr Yates sets out details of the history and operations of the company and the group of companies of which it forms part. The defendant submitted that it is a matter of great significance that the defendant has no prior record, particularly in light of the nature and size of its operations and the time over which the defendant and its associated companies have existed.

18 Mr Yates' affidavit also reflects upon the extensive management systems in place to address issues of occupational health, safety and rehabilitation in the company's operations. Particular emphasis was placed upon the fact that the occupational health, safety and rehabilitation system had achieved accreditation by the New South Wales Government and relevant agencies, both before and following the accident subject of these proceedings. Further, reliance was placed upon the external audit process of the company's systems which was undertaken in September 1995 and the subsequent development of an integrated management services system. The affidavit of Mr Yates also indicated that following the accident documented work procedures were developed in relation to the connection and disconnection of the concrete paving machines. It was submitted that the evidence demonstrates that the company takes its approach to occupational health and safety very seriously and that it is a responsible corporate citizen.

19 The defendant also relied upon its early plea of guilty and this was accepted as appropriate by the prosecution. However, the defendant accepted that there was validity in the charge that it failed to ensure that there was a safe procedure which was adhered to. In that respect, it was conceded that the charge must be seen as a strong one. Seemingly, the defendant accepted that in terms of the approach of the Court of Appeal in R v Winchester (1992) 58 A Crim R 345 at 350, it was inevitable that it would be convicted and that the fact of the early plea may not attract the full discount. Counsel also made reference to the acknowledged co-operation of the defendant in the investigation of the accident by the WorkCover Authority.

20 In reply, counsel for the prosecutor made further submissions in relation to the adequacy of the documented procedures contained in the manual. Counsel emphasised that Mr Hall formed the view that he had to go beyond the manual. The manual in his view contained deficiencies. It was conceded that these deficiencies did not relate to the attachment of the safety stands, but nonetheless the deficiencies caused Mr Hall to go away from the manual and develop a separate methodology. This methodology was not documented, despite that fact that Mr Hall drew the attention of those supervising him to the deficiencies he had identified. The prosecutor submitted that as a result the working methodology which was to be followed by the crew hinged on the presence of Mr Hall and on his being there to ensure that the methodology, which he had developed, was adhered to. In his absence, none of the five people involved in the adjustment of the paving machine ensured that a very basic step in that methodology, one which was essential to the safe working practice and central to the machine not collapsing, was followed.

Principles applicable to sentencing under the OH&S Act 21 The principles applicable to sentencing for offences under the Occupational Health and Safety Act which have been developed by this Court and its predecessors, were discussed in some detail in the judgment delivered earlier today in the matter entitled WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd [2000] NSWIRComm 39 at 21 to 26. It is therefore unnecessary to repeat that discussion in this judgment. Although somewhat simplified and without detracting from the more detailed discussion referred to, the crucial consideration is that the true measure of penalty lies in the nature and quality of the offence and although due allowance has to be made for subjective considerations, it is essential that the Court ensure that the allowance for those factors does not produce a sentence which fails to take account of the objective gravity of the offence. In assessing penalty, the maximum penalty available for the offence reflects the public expression by parliament of the seriousness of the offence with a large penalty indicating the gravity of the offence as perceived by the community. In those circumstances, the task of this Court is to assess the relative seriousness of the particular offence in relation to the worst case in which the maximum penalty is provided, having been increased to $500,000 shortly before the incident. The approach that courts should take in relation to that circumstance is well settled in that it requires the existing sentencing pattern "to move in a sharply upward manner". The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of the penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.

22 I apply the principles as summarised, and as elaborated in the judgment referred to, for the purpose of assessing penalty in this matter.

Consideration 23 In assessing the penalty in this matter it is appropriate to commence the relevant analysis with the concession made by counsel for the defendant, which I consider was very properly made, that the offence committed was a serious offence. It is patently clear that permitting a number of workers to manipulate a large and heavy piece of machinery in a situation where it was in danger of imminent collapse in such a way as would fatally injure one of the workers involves a significant breach of safety. A consideration of the factual circumstances in this matter demonstrates that the system of work was inherently unsafe and this conclusion arises on any analysis of how the actual incident or accident occurred.

24 Although there was some difference in approach of the respective counsel in their analysis of the matter, the following at least seems to be either common ground, or established:- (a) The correct and safe procedure involves lowering the mainframe of the machine onto stands prior to commencing the actual adjustment process as to the width of the machine (see paragraph 16(i) and paragraph 21(i) of the agreed facts). (b) The accident occurred on 4 November 1996 because the supervisor at the time and the crew assumed that the internal sleeve arm extended sufficiently to allow all the bolts to be removed from the flange plates located on the telescopic sliding beam, without the stands being in place (see (a) above and paragraph 18 of the agreed facts). (c) The machine was commissioned on May 1996 and prior to the accident was only altered in width on one occasion; that is, in September 1996 when it had to be widened. On that occasion, the process was personally supervised by the relevant foreman, Mr Hall (see paragraph 16(i)). (d) The date of the accident represented only the second alteration in width to the machine since its commissioning. The operation was however not the same as on the earlier occasion - rather, it was the reverse of the earlier operation. On this occasion, the process was supervised by a Mr Kay, who had not supervised the process before although on the occasion in September 1996, he had assisted Mr Hall (paragraph 16(i) and (ii)). (e) Mr Hall's methodology, which was relied upon by the defendant, was developed at least in part because Mr Hall's view was that the manual available from the manufacturer did not clearly explain how to remove or install the beam extension sections. The removal or installation of those sections was the means whereby the variation in the width, by increasing or decreasing it, was achieved (paragraphs 6, 12, 14 and 16). (f) Mr Hall's previous supervision of the process was by means of oral instructions and actual personal supervision. Obviously, these were not available on 4 November 1996, because he was not present (see paragraph 16 and 17). It follows that no properly documented procedure was available to the crew working on the width reduction operation on the day of the accident. (g) Prior to the accident on 4 November 1996, the defendant had not conducted a risk analysis to identify potential risks or developed a written work method statement or written control measures in relation to the alteration of the paving machine SF3004. However, after the accident, the defendant had required its employees to undertake risk analyses on all paving machines, prepare procedural methods on how to assemble pan kits, placing pan kits into mainframes, and disconnection of pan kits from mainframes, risk assessment on the SF3004 machine in three track mode and on the other machines (paragraph 15 of the agreed facts and record of interview with Mr Hall, dated 9 December 1996 at page 20). (h) Immediately after the accident, stickers were displayed on the machine with a yellow background with black letters on them, which stated "WARNING this machine may fall and cause personal injury or death. Always install support legs before working beneath machine. See operator's manuals for instructions" (record of interview with Mr Hall dated 16 January 1997 at page 5). (i) Since the accident on the M2 site, documented work procedures were developed for the connection and disconnection of the pan section to and from the main frame of the various machines including the SF3004 Concrete Paving Machine and also for altering the width of the paver mainframe for the SF3004. Courses were run on site to ensure that personnel were familiar with the new work procedures. The subject work is now carried out and supervised by specifically trained staff and there has been a reorganisation of the way in which the work is performed. The new work method procedure contains, at relevant steps thereof, reference to the need for the use and installation of the support stands at the relevant steps in the procedures (see paragraph 15 and annexure 4 of the agreed facts; paragraph 22 of Mr Yates's affidavit and annexure "H" thereto). (j) The manual supplied with the Paving Machine did refer at appropriate points to the need to install stands (see for example pages 32 and 37 of the manual which is annexure 3 in volume 2 to the agreed facts, and which is referred to at paragraph 12 thereof). Nevertheless, Mr Hall devised and used his own methodology for the carrying out of each of the steps set out in the manual. The defendant relied on Mr Hall's methodology which had not been reduced to writing or otherwise documented for the benefit of workers required to carry out alterations to the width of the Paving Machine (see paragraph 12 of the agreed facts).

25 Although there is some overlap in some of the elements in this analysis, the culmination of the above circumstances meant that the failure to properly document the procedure which was in fact in use, that is the procedure of Mr Hall, meant that his absence on the day in question, of itself, created a potentially and inevitably dangerous situation. The reliance upon the expertise and method of Mr Hall was emphasised by the fact that the only previous alteration on this paving machine had been personally supervised by him and he had personally supervised many of the previous alterations to other paving machines (paragraph 11 of the agreed facts). In any event, the precise operation on the day of the accident had never been carried out before on the subject machine by the defendant. This resulted in the existence of an unsafe working practice because the safety of the practice depended upon the presence and active supervision of Mr Hall such that human error, including the absence of Mr Hall, was always likely and the system had no layers of safety (for example, a properly documented safe working method) such that safety existed independently of the human factor.

26 As was indicated by the Industrial Commission in Court Session (Fisher P, Watson and Macken JJ) in Sydney City Council v Coulson (1987) 21 IR 477 at 480, "Paper systems are not enough … A system if established must be maintained." This important principle was considered further by Fisher P in Inspector Davies v Supercoat Feeds Pty Limited (unreported, CT96/1020, 22 April 1997) at 4 where his Honour said: The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged - the system of work is that actually utilised and operated at the place of work. "Paper" systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant. The defendant's submission that there was a safe system of work in place which was not followed for reasons unexplained cannot be accepted. The insights provided by these cases demonstrate that the system the defendant relies on for this submission was not in fact or in substance in place. Although the result in these proceedings is not affected by whether or not the failure to follow the manufacturer's manual was for reasons unexplained, it seems tolerably plain when the facts are carefully analysed why that occurred. That is, the manufacturer's manual was relevantly replaced by a procedure or system which was not adequately documented or maintained.

27 For these reasons, the system employed was inherently unsafe. The unsafe procedures were also manifested by the lack of a short and simple work method statement which reflected the work methods actually being used and the absence of other devices such as the yellow and black warning stickers installed after the accident. There can be no doubt that the seriousness of the risk created by the unsafe procedure was readily foreseeable and is evidenced by the tragic circumstances which resulted in the death of Mr Nicholls and the risks to the safety of his co-workers. Furthermore, the seriousness of the offence is emphasised by the fact that the defendant was made aware of the deficiencies in the manual, as well as the fact that Mr Hall developed his own procedure, and nothing was done to remedy these deficiencies or document the procedure. In all those circumstances, the seriousness of the breach is significant. The facts and circumstances of this matter make it clearly appropriate that the defendant's plea be accepted and it be convicted of the offence charged.

28 In determining the penalty to be imposed, however, it is necessary to take into account the subjective factors which the defendant has relied upon. I accept that the defendant has an exemplary safety record over a considerable period of time. This record is particularly noteworthy and creditable in light of the fact that the defendant's operations are substantially undertaken in an industry known for its risks to health and safety. It is also clear that the defendant generally adopts a serious and proactive approach to issues of workplace safety. This attitude is exemplified through the accreditation of its safety procedures by Government authorities, its participation in external audits of its operations practices and the safety procedures developed and implemented both prior to and following the accident.

29 It is also appropriate to have regard to, and make allowance for, the early plea of guilty entered by the defendant, although this factor must be balanced with the fact that the plea of guilty was entered in circumstances where a finding of guilt was virtually inevitable should the proceedings have been contested: see R v Winchester (1992) 58 A Crim R 345 at 350. The defendant's co-operation with the authorities and the steps taken since the accident to remedy the safety problems were proper in the circumstances and are to be taken into account in its favour. I accept that the company is contrite, although there does not appear to be any evidence of any specific tangible acts confirming that contrition which are often found in cases such as the present.

30 As I have indicated, although due allowance must be made for subjective factors, the Court should ensure that those considerations do not produce a sentence which fails to take account of the objective gravity of the offence. In this matter, the objective factors are significant and call for the imposition of a substantial penalty. The defendant left in place an unsafe procedure which posed the most grave threat to the health and safety of its employees. It resulted in the avoidable and tragic death of a young man. In addition to the objective considerations already mentioned, it is appropriate to have regard to the need for general and particular deterrence. Although the good record of the defendant diminishes some of the importance of particular deterrence, I must have regard to the need to compel the attention of large operators (including the defendant) in the construction industry to the need to ensure that their operations are conducted with the greatest regard to safety, as is required by the terms of the Act. Taking all those factors into account, I consider that the appropriate penalty in this matter is $125,000.

1. The defendant is convicted of the offence alleged under s 15 of the Occupational Health and Safety Act 1983.
2. The defendant is fined the sum of $125,000, with a moiety of that fine to the prosecutor.
3. The defendant shall pay the prosecutor's costs of these proceedings in a sum as agreed or, in default of agreement, as assessed. ooOoo

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.