WorkCover Authority of New South Wales (Inspector Gregory) v BlueScope Steel Limited formerly known as BHP Steel Limited trading as BHP Steel Limited Lysaght Building Industries

WorkCover Authority of New South Wales (Inspector Gregory) v BlueScope Steel Limited formerly known as BHP Steel Limited trading as BHP Steel Limited Lysaght Building Industries - [2006] NSWIRComm 14 - NSWIRComm 2005 case summary — Zoe

[13]

The premises and overview of operations [5] At the premises there was a building called the Rainwater Goods Bay No. 3 ("No. 3 Bay") where rainwater goods including guttering were manufactured. [6] At No. 3 Bay there were five (5) metal forming/shaping machines ("roll former machines"), one of which was used to shape "quad guttering" from coils (the "quad guttering machine"). The quad guttering machines were around ten (10) metres in length and were set up in two (2) production lines, namely "quad gutter high" (which is for coils 280mm wide) and "quad gutter low (which is for coils 260mm wide). The quad guttering machine could only produce quad gutter high or quad gutter low at any one time. [7] Coils comprise rolls of painted steel product of approximately 0.4mm thickness, of various lengths. A coil can weigh between five hundred (500) and nine hundred (900) kilograms. Coils are delivered to the premises in different colours and in widths of various dimensions. There are approximately twenty-six (26) colours in the Defendant's product offering. [8] At the No, 3 Bay, there were four (4) coil cars which were used in conjunction with the five (5) metal forming/shaping machines. Coil cars are used to transport coils and are mounted on a dual rail track and identified with the plant number - CC-020. A coil car may be seen in the foreground of photograph 3 of the Agreed Photo Bundle. The top of each coil car is fitted with a V-shaped metal square bed plate which is made from square steel tubing 50 mm x 50 mm spaced approximately 80 mm apart, approximately 1,020 mm from the base of the coil car. Sheet metal coils are placed on the bed plate for transportation. [9] Directly underneath the square bed plate on each coil car are three (3) hydraulic rams which allowthe operator to raise and lower the coil, which is necessary to place the coils on the hydraulic twin mandrel which is described below. [10] Coil cars are operated by an electric pendant control which also operates the hydraulic rams. An electric pendant control may be seen in photograph 4 of the Agreed Photo Bundle fixed in its casing on the coil car under the mandrel. The capacity of the bed plate was three (3) tonnes.

[42]

15 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 16 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 17 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 18 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ...The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

[45]

23 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). In my view, the risk to safety posed to Mr Leung was, given the circumstances, foreseeable. 24 As the facts disclose, BlueScope Lysaght was engaged in manufacturing rainwater goods such as guttering at Bay No. 3 at its Chullora premises. A key component of the manufacturing process involves coils, which comprise of many rolls of painted steel product. The coils come in an array of colours and can be cut and modified to customer order specifications. A single coil can weigh between 500 to 900 kilograms. 25 One the day of the incident, Mr Leung selected a coil which weighed 457 kilograms and transported it by coil car to the mandrel. Upon raising the coil to the mandrel by the coil car, he noticed that the coil had a deformed, egg shaped centre rather than a round, circular shape. He unlocked the latches on the turnstiles in order to generate movement of the coils in an attempt to fit the coil to the mandrel. When the plate was about halfway on the plates of the mandrel, Mr Leung manoeuvred the mandrel by placing his right hand through the coil and onto the steering wheel to steady the mandrel. He then pushed a button on the pendant control of the coil car to move it backwards and forwards in order to fit the coil to the mandrel. The coil suddenly lurched forwards and fell, pinning Mr Leung to the ground and crushing his right arm and leg. As a result, Mr Leung suffered multiple fractures to his right arm and leg. 26 The evidence discloses that, prior to the accident, the defendant had in place a comprehensive occupational health and safety management system for work to be undertaken at the Bay No. 3. This included a Job Safety Analysis (JSA) titled 'Loading of coil onto mandrel after coil is on coil car', which outlined a safe work methodology specifically for loading coils. That JSA identified the need to engage the turnstile latch and to stay clear of a moving coil to avoid injury. The JSA noted the hazards associated with working close to a moving coil and repeatedly stated in clear terms that an operator was to "stand clear of a moving coil". While the JSA only addressed the issue of loading a normally shaped coil, it is clear to me that such a direction was relevant whether the coil was normally shaped or deformed. 27 In spite of the existence of a JSA which alerted workers to hazards common to both normal and deformed coils, it is unclear if it was made available and clearly communicated to Mr Leung. In a statement to WorkCover, Mr Leung stated he did not know about the JSA, nor that he should have stayed clear of the moving coil. There could be two possible scenarios as to why Mr Leung was unaware of the JSA and the need to keep clear of a moving coil. One such reason could have been the assumption that Mr Leung was already aware of the JSA and the safety procedures as an experienced and knowledgeable operator and had become complacent was to its directive to keep clear. Another reason could have been Mr Leung's basic understanding of English could have hindered his understanding of the JSA or that it was not properly explained to him in his native Cantonese by his "buddy" on site, Mr Hang. Neither of these scenarios are satisfactory explanations as they fall short of the duty incumbent upon an employer to provide a constant safe working environment. It must be acknowledged however, as deposed by Mr Grundy, the defendant had in place a language program and "buddy" system to ensure employees from non-English speaking backgrounds would be able to understand the tasks they were required to perform.

[48]

30 I accept that the defendant's JSA system in place at the time of the accident was long standing and subject to regular review. Mr Grundy deposed that at the time of the accident the defendant had a draft copy of a JSA which addressed the issue of loading a collapsed bore coil onto a mandrel. As it was still in draft form, however, it had not been released or discussed with employees. Whether that JSA would have avoided Mr Leung's accident is not entirely clear to me. As it is, Mr Leung may be considered somewhat fortunate to have escaped with the injuries he did, serious though they were. The weight of the steel coil that fell on him was 457kg. He is lucky to be alive. 31 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. That the defendant had already developed the draft JSA dealing with the handling of deformed coils, it is clear that such a process of remediation was already available to the defendant. In short, the defendant had already recognised the hiatus in it's otherwise commendable approach to risk assessment and analysis of recognised tasks in order to avoid workplace injury. 32 As well, after the accident, the defendant promptly sought to review its safety practices in regard to work conducted with loading coils. On the day after the incident, a JSA which addressed the issue of loading a deformed coil onto the mandrel was introduced. An SSO (Significant Safety Occurrence) report on the accident and its subsequent findings were communicated across the defendant's business and requests were made for a review of safety procedures of work relating to deformed coils. The report identified the need for modifications to be made to the mandrels to facilitate easier acceptance of coils when performing loading tasks, to add safety pins to prevent coils from dislodging from the mandrel and to fit restraining devices to all coil cars. Modifications were made and training was conducted for the new JSA and modified equipment. The defendant also contacted the supplier of the coils to discuss ways in which to reduce the incidence of deformed coils. 33 Considering all of the above as well as submissions received, I assess the offence as being in the mid- range of seriousness and will assess penalty on that basis.

At a glance

Court

Decision date

Before

Source

Judgment (56 paragraphs)

Parties

Cases Cited (8)