WorkCover Authority of New South Wales (Inspector Gill) v Boral Transport Pty Ltd

WorkCover Authority of New South Wales (Inspector Gill) v Boral Transport Pty Ltd - [2005] NSWIRComm 276 - NSWIRComm 2005 case summary — Zoe

[12]

5 Following an investigation into the incident, the defendant was charged with two distinct offences, arising pursuant to ss 8(2) and 10(2) of the Occupational Health and Safety Act 2000 (the Act) respectively. In relation to the charge under s 8(2), it was alleged the defendant: DID FAIL, contrary to Section 8(2) of the 2000 Act to ensure that people (other than the employees of the Defendant employer, and in particular Mr Rod Thatcher) are not exposed to risks to their health or safety arising from the conduct of the Defendant employer's undertaking while they are at the Defendant employer's place of work. 6 The particulars of that charge are: The defendant failed to instruct persons such as Mr Thatcher in the safe use of the crane/brick grab. 7 In relation to the charge brought pursuant to s 10(2), it was alleged that the defendant: DID FAIL, contrary to Section 10(2) of the 2000 Act to ensure that the plant was safe and without risk to health when properly used. 8 The particulars of that charge are: The defendant failed to ensure that plant to wit the crane/brick grab and in particular, the adaptor/linkage component of the crane/brick grab was safe and without risk by failing to recall the said plant for replacement or modification after becoming aware of failures of such plant. 9 A plea of guilty has been entered with respect to both charges. 10 In these proceedings, the prosecution has filed an agreed statement of facts which relevantly discloses: [1] In January 2000 the Defendant invited tenders from a number of crane manufacturers to supply complete crane, brick grab units for their Clay and Concrete fleet. On about 1 February 2000 the Defendant received and accepted a quote from Transpec Limited ("Transpec"), a supplier of ancillary equipment for the heavy road transport industry, for the supply and installation of nine (9) Hobjerg Maskinfabrik Model HMF 1683-K2 series, 15.5 tonne, meter hydraulic truck loading cranes ("the crane") imported from Denmark for delivery in about June 2000. Each crane jib had a maximum hydraulic reach of 8.6m with lifting capacity of 1,760 kgs and 3,525 kgs at 4.4m radius. The Defendant purchased accessories for each crane being an electronic load management safety system, an HDH sliding brick grab and a six (6) function Hetronic radio control. The Defendant supplied Transpec with weights and dimensions of the products to be handled by the crane and grab.

[43]

13 On behalf of the defendant, the following affidavit material was relied upon: · Affidavit of Mr Wayne Andrew Fullerton sworn 21 July 2005. Mr Fullerton is employed as a Depot Manager at the defendant's transport depot located at 10 Bernera Road, Prestons. He commenced employment with the defendant in 1997, and at the time of the incident managed the Clay and Concrete Fleet of the defendant from the defendant's Greystanes Depot. It was in this Fleet that Mr Thatcher was performing the work that led to the incident of 12 September 2002. · Affidavit of Mr Richard Coleman sworn 15 July 2005. Mr Coleman is the General Manager Occupational Health and Safety for the defendant's parent company, Boral Limited. Mr Coleman has held this position since 11 June, 2002. As part of this role, Mr Coleman is responsible for the global management and implementation of Boral Limited's occupational health and safety policies. That includes overseeing the specific adoption of those policies by the defendant as a subsidiary of Boral Limited. · Affidavit of Mr Robert Angus sworn on 13 July 2005. Mr Angus is the General Manager NSW, and Overlay General Manager of the defendant. As part of his duties as Overlay General Manager nationally, Mr Angus is responsible for 'issues such as selection of equipment; issues of national regulation of the transport industry; and safety review'. In his affidavit, Mr Angus detailed the history of the defendant as having first been incorporated on 6 November 1952 as Blue Metal Industries Limited. Mr Angus also set out the occupational health and safety initiatives undertaken by the defendant both prior to, and after, the incident of 12 September 2002. · Affidavit of Mr Andrew James Graham sworn 12 July 2005. Mr Graham operates a trucking business through the corporate entity P & A Transport Pty Limited (P & A Transport) as a director and shareholder of that company. From June 2000 up to September 2003, P & A Transport had a contractual arrangement with the defendant similar to that entered into between the defendant and Rodlyn. As part of that agreement, Mr Graham performed similar duties to those performed by Mr Thatcher, on behalf of Rodlyn.

[49]

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. 20 It is also necessary to consider the damage and injury suffered in the context of the evidence and 'in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence.' ( Capral at 650). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. 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 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: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 at 408-409, Lawrenseon Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and Page v Walco Hoist Rentals Pty Ltd (No 2) (at 22).

[51]

22 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). 23 In addition to the above general principles, given that the defendant has been charged with two offences arising from the same incident, the principal of totality is relevant to any penalty that I impose. I will consider the principle of totality in the sentencing process in due course. General considerations 24 It is agreed between the parties that as the defendant has no prior convictions, the maximum penalty is $550,000 for each offence. 25 A preliminary issue that was raised in the hearing of this matter was whether I could be satisfied that there was a causal nexus between the failures of the defendant, and the ultimate injury sustained by Mr Thatcher. It was submitted by counsel for the defendant that there was inadequate evidence to establish the manner in which Mr Thatcher sustained his injury. According to counsel for the defendant, it was not sufficiently established whether Mr Thatcher sustained his injury by dint of a part of the crane striking him, or if he sustained his injuries in the course of attempting to avoid the crane as it broke at the adaptor link. 26 It is correct that there were no eye-witnesses to the incident, and that Mr Thatcher was simply found lying on the ground after suffering a traumatic subarachnoid haemorrhage. The fact that Mr Thatcher was found lying on the ground in the immediate vicinity of the hydraulic brick grab when it snapped off at the adaptor link and fell to the ground raises a strong inference that, in falling, it struck Mr Thatcher. Alternatively of course, Mr Thatcher may have tripped and fell when he sought to take evasive action from the falling brick grab. In any event it is not necessary for me to determine beyond reasonable doubt a causal relationship between the risks to safety pleaded and any specific death or injury that arises They are matters which arise to be considered as part of the objective seriousness of the offence. By entering a plea of guilty to both offences the defendant has embraced without demur its failures as pleaded and, in doing so, has accepted the causal link between them and risks to the health and safety of its employees that arise as a result of the failures particularised. In WorkCover Authority of NSW (Inspector Farrell) v Ross Collin Morrison [2001] NSWIRComm 325, Walton J stated at [43]: It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident. 27 The work performed by Mr Thatcher, which resulted in the injuries sustained, involved the operation of a potentially hazardous piece of machinery with inherent risks to health and safety. Accordingly, there was a clear obligation on the part of the defendant to ensure that the system of work in respect of that machinery was not such as to present a risk to the health and safety of its employees. 28 The issue of foreseeability is a central consideration when assessing the culpability of a defendant. 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). 29 The agreed statement of facts discloses that prior to the accident of 12 September 2002, the defendant was aware of at least two other incidents involving failure in the adaptor link of the crane. The first of those failures occurred on 23 May 2001 when one of the cranes, which was being operated by Mr Bruce Byron (the Byron incident), broke at the adaptor link. The evidence before me does not clearly indicate the circumstances in which this break occurred. Discussions ensued following this incident between the Defendant, Transpec, as distributor of the crane, and Heavy Duty Hydraulics (HDH), as designer and manufacturer of the crane, to ascertain the cause of the breakage. Mr Hank Jager, an employee of HDH, inspected the adaptor link and concluded that the source of the problem was most likely operational abuse or error. According to the agreed facts: ... no analytical testing of the weld was undertaken or recommended by the Defendant or HDH. 30 As a result of this incident, HDH and the defendant agreed that all trucks in the defendant's fleet fitted with the relevant crane would 'call past' HDH and get the linkages, including the adaptor link, checked. The defendant, however, only contacted some and not all of the drivers whose trucks were fitted with the crane. According to the Inspections Spreadsheet prepared by Mr Fullerton and tendered by the prosecutor, of the thirteen cranes in operation within the defendant's fleet at the time, excluding the crane involved in the Byron incident, five were not inspected, including Mr Thatcher's crane. 31 The other incident of which the defendant was aware prior to the incident of 12 September 2002, occurred on 4 September 2001. On that occasion, a truck in the defendant's Clay and Concrete Fleet, fitted with the crane, was being driven by Mr Gary Bennett (the Bennett incident) when the adaptor to the grab broke whilst the crane was stationary on the truck. This occurred, notwithstanding that Mr Bennett had taken his truck to HDH for inspection of the adaptor following the Byron incident. As with the Byron incident, no analytical testing of the adaptor was conducted, nor did the defendant carry out a formal investigation into the incident or implement a recall to alert drivers within the defendant's fleet of the potential for breakage in the adaptor. 32 In short, there was no immediate or systematic process put in place to ensure that all drivers were contacted and all of the cranes recalled for rigorous inspection, as would have been expected in the circumstances. 33 In addition to these two incidents, and after 12 September 2002, the defendant became aware of two other problems that arose with respect to the adaptor link, that had occurred prior to the accident involving Mr Thatcher. On 17 June 2002, Mr Andrew Graham, a driver in the defendant's Fleet, identified cracks in the adaptor and arranged for them to be repaired by HDH. Likewise, on either 18 or 19 August 2002, Mr Ray Willis identified cracks in the adaptor of the crane fitted to his truck and arranged for HDH to repair the problem. The defendant only became aware of these two incidents after the accident of 12 September 2002 involving Mr Thatcher. 34 Irrespective of whether the defendant identified a common problem in the adaptor link before the incident of 12 September 2002, including that attached to Mr Thatcher's truck, the potential for risk to the safety of employees if the adaptor link was faulty meant that it was incumbent upon the defendant to be satisfied as to its operational integrity. Subsequent analysis testing revealed, inter alia, the use of high carbon steel in one component of the three-part adaptor. The consequences of using that material were set out by Mr Fullerton in his affidavit at [35]: ... The use of 'high carbon steel', would normally require highly specialised welding techniques to ensure a proper weld. The failure to use these techniques could result in internal 'non-visible' cracking that could be a cause of the failure. 35 As a result, in December 2003, after previously having re-welded the adaptors following the 12 September 2002 incident, new one-piece adaptors were fitted to all the relevant cranes in the fleet. 36 As the defendant has conceded, the training that was provided to Mr Thatcher in the operation of the crane was inadequate. As the agreed facts disclose no formal training or instruction was provided with respect to the safe operation of the crane, including the safest position in which Mr Thatcher should be positioned when operating the equipment. Any knowledge Mr Thatcher had acquired about operating the crane was largely informal, on the job experience. 37 Following Mr Thatcher's accident, the defendant engaged the Driver Education Centre of Australia (DECA) to undertake an investigation into the cause of the accident. According to the affidavit of Mr Fullerton, the ensuing report made the following recommendations, which were subsequently adopted by the defendant: (a) 12-month inspection of equipment to be carried out by qualified technicians; (b) That the remote control unit be used at more sites; (c) Equipment faults should be reported and repaired; (d) Operators (sic) should be instructed on the correct method for inspecting equipment during daily operations; and (e) Guidelines for unloading on unsuitable sites should be put in place. 38 With respect to point (b) above, Mr Fullerton annexed to his affidavit a Safe Work Method Statement, which sets out the procedures that operators of the crane should undertake prior to, and during, the crane's operation. 39 Dealing firstly with the offence pursuant to s 8(2) which identifies a failure of the defendant to 'instruct' Mr Thatcher in the safe use of the crane. As already stated, Mr Thatcher was not adequately trained by the defendant in the operation of the crane. As was said by the Full Bench in Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267 at [58]: ... in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education). 40 It is unclear whether, in the circumstances, more extensive training would have allayed the risk to safety that arose because of the failure pleaded in the offence arising pursuant to s 10(2). Proper adequate training and instruction may have involved Mr Thatcher operating the crane from the same position that he did on the day of the incident. If that had been the case he may still have fallen foul of the risk to safety the faulty adaptor link represented. It was not suggested that with adequate training Mr Thatcher would have been able to readily identify the problem in the adaptor link prior to the breakage. It may be that in being taught the correct method for inspecting equipment on a daily basis, Mr Thatcher may have noted cracking of the adaptor link. It is not possible to be conclusive on that point. In any event the offences of the defendant and the failure particularised with respect to each offence stand independently of each other. 41 Nevertheless given the factual circumstances of the offences I believe that of the two offences arising pursuant to the incident of 12 September 2002, the most objectively serious is that arising pursuant to s 10(2) with respect to the defendant's failure to ensure the crane was safe and without risk to safety. That will be relevant when I come to apportion penalty between the two offences consistent with the principle of totality. 42 Immediately following the accident involving Mr Thatcher, the defendant organised for all trucks operating the cranes to be withdrawn from work. The initial modifications undertaken by the defendant were set out by Mr Fullerton in his affidavit at [17]: ... Our workshop supervised the removal of the linkages (adaptors). The intention of this modification was to make the crane safe to operate until the failure of the linkages (adaptors) could be properly evaluated. The removal of the linkages (adaptor) reduced the level of articulation but was not considered a permanent solution. The modification was undertaken on advice from Transpec as an interim measure only. 43 Following from that, the existing welds on all adaptors were removed and the adaptors were re-welded on the inside and externally with more substantial welds. 44 As indicated above, ultimately a metallurgist found high carbon steel in one component of the adaptor which, with inadequate welding, was prone to cracks and subsequent breakage. As a result, a new adaptor was constructed and fitted comprising only one piece. 45 Counsel for the defendant submitted that the steps which ultimately led to identifying the fault in the adaptor link, were not immediately obvious prior to the incident of 12 September 2002. Certainly the steps take by the defendant to resolve the fault in the adaptor link were extensive. They included: · Initially removing the adaptor links after the incident of 12 September 2002 involving Mr Thatcher, and subsequently examining each crane to ensure the modification had been effected and identify any other faults; · Performing an x-ray on the adaptor links to identify any cracking in the existing welds; · Undertaking the removal of existing welds on all linkages, and re-welding each adaptor on the inside and externally with a more substantial weld; · Obtaining a report from a metallurgist to analyse both the original and modified adaptor links; · Subsequently redesigning the adaptor link so that it comprised only one piece, as opposed to three pieces welded together which was the manner in which the adaptor link was constructed as at 12 September 2002.

[52]

46 I accept that the steps undertaken by the defendant to ascertain the problem in the adaptor link were extensive and could not be defined as readily and easily available. That being said, however, it was clearly reasonable to expect the defendant to undertake the recall it had proposed in response to the Byron incident, as well as a systematic analytical assessment of the adaptor links, given the serious risk that the fault engendered. 47 The culpability of the defendant in these proceedings must also be considered in light of the relative culpability attributable to both Transpec and HDH, neither of whom have been prosecuted in this matter. It was Transpec who were contracted to supply and install the cranes, who in turn subcontracted with HDH for the manufacture and installation of the adaptor link and brick grab. The defendant clearly relied on their expertise to do that in a way that would allow it to ultimately rely on the operational integrity of the adaptor link and crane. The prosecutor acknowledged he had exercised the discretion available to him not to proceed against Transpec and HDH and that it was an issue to be taken into account in assessing the objective seriousness of the offences as part of the overall culpability of the defendant. That approach, in my view, is consistent with the approach adopted in earlier decisions of this Court, both at first instance and appellate level. 48 In Nesmat Pty Ltd v WorkCover Authority of NSW [1998] 87 IR 312, the Full Bench considered an appeal against the severity of the sentence imposed on the appellant at first instance. The relevant facts were that the appellant had been contracted by the Department of Public Works to carry out certain works. Those works involved employees of the defendant entering an unsecured State Rail Authority substation. Unbeknown to those employees, and contrary to expectations, the substation was still live. As a consequence, one of the appellant's employees was electrocuted when he touched one of the 'air brake' switches located on the wall of the substation. 49 One of the matters raised on appeal was that, at first instance, the judge had failed to take into account, in assessing the defendant's culpability, the role of the Public Works Department in the circumstances leading to the offences charged. In upholding the appeal, the Full Bench stated at 322: However, in our opinion, there are other very relevant factors which were not adverted to by his Honour when determining the penalty, or if adverted to, were rejected by him as not being relevant and/or mitigating ones. These include: (1) The primary cause of the risk and the detriment to safety was that the substation was not de-energised by the appropriate authority/ies at the time it was decommissioned or, at any time, prior to the letting of the contract to the appellant. The risk and detriment to safety was compounded by the further failure of Public Works, which was advised as early as 12 November 1993 that the substation was live, to specify in the contract that the job included the removal of equipment in the live electrical substation. On appeal, we were advised that the prosecution which had been commenced against a member of the staff of Public Works had been withdrawn, and that Public Works was never prosecuted in relation to the tragic accident despite what was, on the evidence, the instrumental part played by it. The absence of prosecution of other parties, on whom the appellant had reasonably relied, underlines the cogency of argument presented on appeal that the sentence gave rise to a justifiable sense of injustice. (emphasis added) ... We are of the opinion that it is proper to take into account the aforesaid factors, which we consider as relevant and mitigating ones; they bear critically on the nature and quality of the offence and the degree of culpability of the appellant. 50 That was also the approach adopted by Wright J, President, in WorkCover Authority of NSW v Walco Hoist Rentals Pty Ltd and anor (No 2) [2000] 99 IR 163 where his Honour stated at [34]: The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them.

[53]

51 Counsel for the defendant, in submitting that the apportionment of culpability between the defendant, Transpec and HDH was a matter directly relevant to the sentencing process, relied upon the decision of Walton J in WorkCover Authority of NSW v McDonald's Limited (2000) 95 IR 383 where his Honour stated at 437: The relationship between the defendants and Lennard, Mercer and the independent contractors is relevant to the extent that it casts light upon the level of culpability of the defendants themselves. The role performed by Lennard and Mercer in the McDonald's System in relation to the installation and maintenance of equipment, as well as the training of staff and the provision of advice, may clearly be pertinent to the reasonableness of the defendant's actions. The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services both in relation to the particular restaurant involved in this case and in the system of safety employed in the entire McDonald's System. The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken. 52 As disclosed in the agreed facts, the defendant contracted with Transpec, who in turn sub-contracted with HDH, to supply and install a brick grab to each of the defendant's cranes. This process involved the fitting of the relevant adaptor link, which was later found to be insufficiently welded by the manufacturer, given the high carbon steel used in one component. Clearly, both Transpec and HDH failed to supply a product that was of sufficient quality for the use to which it was to be put. 53 However, in making the submission that the defendant's culpability should be qualified by the respective roles of Transpec and HDH, counsel for the defendant, properly in my view, did not seek to resist the conclusion that ultimately it was the defendant's responsibility, once put on notice of problems with the adaptor link, to put in place an immediate, comprehensive and systematic process to ensure every crane in the fleet was inspected and overhauled to ensure their safe operation. The process put in place as the defendant conceded, was, at best, a somewhat hit and miss approach. Nevertheless the steps taken by the defendant following the Bryon and Bennet incidents were founded on the expert advice received from Transpec, HDH, and Mr Jager, the designer of the adaptor link. According to the agreed facts, the conclusion reached by Mr Jager on examining the adaptor link involved in the Byron incident, was that: ...the break should not have occurred and that there was something wrong but he concluded that the problem was more likely to have resulted from operation abuse or error . (emphasis added) 54 According to the written submissions of counsel for the defendant: Boral Transport relied upon the expertise of Transpec Limited (Transpec), the entity that provided the crane and brick grab and Heavy Duty Hydraulics (HDH) who was a subcontractor to Transpec, who designed and manufactured the adaptor and grab components. 55 Overall, I am satisfied as per Nesmat, that the part played by Transpec and HDH, is a 'relevant and mitigating' factor that bears critically on the nature and quality of the offence and the degree of culpability of the defendant.

[54]

56 In relation to general and specific deterrence, the decision of the Full Bench in Capral clearly indicates that these are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 57 Counsel for the defendant properly conceded that general deterrence was a relevant consideration in the sentencing exercise to be undertaken. 58 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 59 The defendant continues to operate in an industry where risks to safety are ever present. I am not of the opinion that this matter is one in which the element of specific deterrence should be disregarded. Having said that, I accept the submission of counsel for the defendant that the defendant is an employer both acutely aware of its obligations pursuant to the Act, and concerned with meeting those obligations. Of particular note, the affidavit of Mr Angus makes reference to the defendant's adoption of a policy designed to promote the use of seatbelts throughout the organisation - an initiative that pre-empted legislative intervention making the use of seatbelts in heavy vehicles compulsory. This was an initiative introduced well before the incident involving Mr Thatcher and highlights the defendant's generally proactive approach to safety. In his affidavit, Mr Angus set out the following at [11]: In October 1996 the defendant introduced the mandatory wearing of seatbelts in all Boral vehicles and equipment nationally. Before 2000 it was not mandatory for Driver's of heavy vehicles to wear seatbelts in NSW. The launch included training sessions incorporating a specific in-house produced video. The cost of training and production of (the) video was approximately $30,000.00. After the launch of the program a number of other companies requested copies of the video after hearing about the success of the program. 60 Mr Angus also set out the response of the defendant to the incident involving Mr Thatcher at [14] and [15] of his affidavit as follows: Following the accident involving Mr Thatcher the defendant implemented a new set of maintenance management procedures. The defendant arranged to have all crane drivers assessed externally to ensure their level of competence was adequate. The defendant arranged for its crane supplier Transpec Limited to carry out an evaluation of the failed components and those failed components have now been replaced at considerable cost by a new component which has been appropriately designed and engineered. The defendant has undertaken a full review of its quality assurance procedures to ensure that a more formal system exists for notification of issues or potential issues relating to equipment and equipment operation. The quality assurance system not only incorporates normal operating procedures but also includes safety compliance systems. 61 Also, annexed to the affidavit of Mr Fullerton, inter alia, were a number of documents setting out the system of work developed by the defendant, including: · A Safe Work Method Statement for truck mounted cranes in the Clay and Concrete Fleet: This document systematically deconstructs the tasks involved in the kind of work that Mr Thatcher was performing on the day of the incident, identifying various potential hazards and methods by which to manage those hazards. · A Crane Drivers Daily Maintenance Inspection Check Sheet. · A site safety checklist business card titled 'Safety First!'. · A Boral Skills Book: This book records various internal competency assessments undertaken by employees of the defendant. · The defendant's 'Heavy Vehicle Maintenance Procedure': This procedure details, inter alia, frequency requirements for various inspections including preventative maintenance and roadworthiness inspections. 62 I have considered all of the material placed before me by the defendant, outlining its health and safety policy. I am satisfied that any provision I make for specific deterrence should take into account the extensive policies adopted by the defendant both prior to, and after the incident of 12 September 2002. 63 The principle of totality is relevant to my considerations. In Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty limited and ors [2005] NSWIRComm 31, I considered the various authorities dealing with totality and set out the attendant principles at as follows: [92] The proper approach to the principle of totality in the sentencing process was established in the judgment of the High Court in Pearce v The Queen (1998) 194 CLR 610. That approach as established has been followed and applied in decisions of this Court at appellate level and were expressed in some detail in the judgment of the Full Bench of the Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at 192-193. It is worthwhile to re-state those principles relevant and binding as they are to the matters before me:

[56]

... [93] Within the principle of totality there is a further issue to be considered. That is, where there are common elements between offences, the principle of double jeopardy is not infringed in the sentencing process ... 64 The two offences with which the defendant has been charged relate to quite separate and distinct failures. In all the circumstances, I do not consider that the rule against double jeopardy is infringed given the particularised failures of the two offences as pleaded. 65 Taking into account all the matters I have considered, I am of the opinion that, in the circumstances, the nature and quality of the offence arising pursuant to s 10(2) of the Act should be assessed as objectively more serious than the offence arising pursuant to s 8(2) of the Act. 66 In the first instance, and in accordance with the proper approach, in relation to the offence arising under s 10(2) of the Act I determine a penalty of $110,000.00. With regard to the s 8(2) offence I determine a penalty in the first instance of $70,000.00. 67 The defendant is entitled to have taken into account the pleas of guilty entered. In assessing that, the Court is guided by the decision of R v Thomspon; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I assess that discount at twenty five percent with respect to each offence. 68 According to the affidavit of Mr Angus, the defendant was first incorporated in 1952. Despite its lengthy involvement in an industry that involves the use of equipment replete with risk, the defendant has no prior convictions with respect to occupational health and safety. That is a matter that I consider runs heavily in the defendant's favour. 69 As well, the prosecutor has acknowledged that the defendant fully cooperated with the WorkCover investigation of the incident. 70 Finally, the extent to which the defendant assisted Mr Thatcher after the incident was set out by Mr Fullerton in his affidavit at [49] - [51] as follows: After the accident on 12 September 2002, I and other representatives from Boral Transport visited Rod Thatcher on a number of occasions in hospital. Before Mr Thatcher's return to work Boral Transport hired his prime mover from him and paid him a fee for the hire. To the best of my recollection the fee was about $250.00 per day. 71 Considering all those subjective elements I have identified, I consider the defendant is entitled to a further discount with respect to each offence. 72 In applying the discounts assessed the penalty with respect to each offence is reduced accordingly. Finally, in applying the principle of totality, I determine a penalty with respect to the two offences of $120,000.00 as properly representing the defendant's cumulative criminality for both offences. In accordance with my earlier finding that the offence arising under s 10(2) of the Act is more objectively serious than the offence arising under s 8(2) of the Act, I impose sentence as follows: (i) Matter Number IRC 4917 of 2004: · The defendant is convicted of the offence as charged pursuant to s 8(2) of the Occupational Health and Safety Act 2000 · I impose a penalty of $40,000.00 (ii) Matter Number IRC 4918 of 2004: · The defendant is convicted of the offence as charged pursuant to s 10(2) of the Occupational Health and Safety Act 2000 · I impose a penalty of $80,000.00 73 In addition, I make the following orders: (1) I allocate a moiety to the prosecution on the usual terms. (2) I order the defendant pay the costs and disbursements of the prosecutor as agreed, in the sum of $18,860.00 for costs, and disbursements of $541.95.

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Cases Cited (17)

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