WorkCover Authority of New South Wales (Inspector Stewart) v Central Sydney Area Health Service

PROSECUTOR Mr G Phillips, solicitor Carroll & O'Dea

LEGAL REPRESENTATIVES: DEFENDANT Mr A A Henskens of counsel Solicitor: Mr A P Riordan Colin Biggers & Paisley

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Friday, 7 December 2001 Matter No IRC 5919 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR FIONA STEWART) v CENTRAL SYDNEY AREA HEALTH SERVICE Prosecution under s 15(1) of the Occupational Health and Safety Act 1983.

Matter No IRC 5920 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR FIONA STEWART) v CENTRAL SYDNEY AREA HEALTH SERVICE Prosecution under s 16(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2001] NSWIRComm 326

1 On 14 December 1998, at the premises of the Royal Prince Alfred Hospital at Missenden Road, Camperdown in the State, a fire occurred during the use of oxy-acetylene equipment to repair a leak in a water pipe which was allowing water to run down an internal wall of the Neuro Intensive Care Unit on level 7 of the hospital. The Central Sydney Area Health Service, constituted as a body corporate under Pt 1 of Ch 3 of the Health Services Act 1997, was responsible for the operation and administration of the hospital, including the employment of tradesmen plumbers to perform various duties relating to general plumbing, repairs and the general maintenance of water systems using equipment owned and supplied by it. The incident was investigated by Fiona Stewart, an inspector of the WorkCover Authority of New South Wales, who, on 5 December 2000, laid two charges against the Central Sydney Area Health Service for breaches of ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983.

2 The defendant pleaded guilty to each charge, entered in proceedings before the Industrial Registrar on 8 March 2001, following which the matters were referred to me for hearing as to appropriate sentences. That hearing occurred on 14 June 2001 when a statement of agreed facts was admitted into evidence and the parties were heard on penalty. As two employees of the defendant and seven patients in the hospital's intensive care unit were involved in the incident and subject to its consequences, the first matter (No IRC 5919 of 2000) concerned the charge under s 15(1) and the second matter (No IRC 5920 of 2000) concerned the charge under s 16(1). Those two sections relevantly state the offence which each creates in the following terms : 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

3 The statement of agreed facts detailed the alleged failures against the defendant in the s 15(1) matter in this way : It is alleged that on 14 December 1998 the Defendant, being an employer at the said site, failed to ensure the health, safety and welfare at work of all of its employees and, in particular, Mr Frank Remmington and Mr William Beattie, contrary to Section 15(1) of the Occupational Health & Safety Act 1983 (NSW), in that the Defendant failed to provide or maintain plant and systems of work that were safe and without risk to health. The Defendant failed to adopt a system of maintenance of equipment such as the air acetylene set used by Mr Beattie and Mr Remmington on 14 December 1998 so as to ensure that such equipment is free from defects prior to it being used by employees. The equipment provided to Mr Beattie and Mr Remmington for use on 14 December 1998 was defective. Further, the Defendant did not provide adequate safety precautions, designated procedures or other safe systems of work to be employed by Mr Remmington and Mr Beattie in performing the task required of them by the Defendant. Further, the Defendant failed to provide such information, instruction and training as may be necessary to ensure the health and safety at work of the Defendant's employees. Prior to the incident, the Defendant had provided no information, instruction and training to Mr Beattie or to Mr Remmington as to the maintenance and use of welding equipment and, in particular, provided no information regarding any pre-use checks for defects to be adopted by persons such as Mr Remmington and Mr Beattie. The alleged failures as to the s 16(1) matter were relevantly the same as those set out above, except, of course, with necessary references to safety risks occasioned to the patients as persons not in the employ of the defendant. Otherwise, as was conceded by the prosecutor's solicitor, Mr G Phillips , "there is no difference in terms of the facts or in terms of any relevant breaches by this defendant which would make the position in one matter different to the other".

4 As indicated above, the defendant was responsible for the operation and administration of the Royal Prince Alfred Hospital. Part of that responsibility was for the maintenance of and repair to the hospital's facilities and equipment as required from time-to-time. Mr Remmington and Mr Beattie were plumbers employed by the defendant and on 14 December 1998 they received a work order docket issued by the defendant to repair the water leak which was affecting the wall in the intensive care unit. A set of oxy-acetylene equipment was obtained by the two workers so they could re-solder a joint of copper pipe to the recess cock on the right-hand side of a wash basin in the intensive care unit to stop the leak. However, while Mr Beattie was in the process of soldering the joint the hose connecting the cutting section of the acetylene gear to the gas bottle burst into flames near the handle of the blowtorch; it was accepted that a "flashback" occurred due to a burst hose. Mr Remmington and Mr Beattie were able to extinguish the flames and secured the equipment but, in the process, Mr Beattie suffered burns to his right hand and right forearm and was unfit for work until 14 January 1999; Mr Remmington was uninjured. Apart from the two workers present at the time of the incident, there were seven patients in the ward of the intensive care unit but they did not suffer any injuries from the fire.

5 The statement of agreed facts set out the defects found to have existed in the equipment, together with the shortcomings in the defendant's "hot work system", as follows : 9. The air acetylene set was the property of the Defendant. The Defendant had no adequate system of preventative maintenance for testing of equipment of this type for defects. The equipment used by the two (2) employees was in need of service and repair. An inspection carried out by Michael Adamsons, Managing Director of Add-Tech Medical Services Pty. Ltd, who inspected the equipment following the accident, revealed a split hose, broken tips, misreading gauge on the regulator and burn marks. Further, the equipment did not possess an attachment known as a flash arrestor. The purpose of a flash arrestor is to deflect any backflashes which may occur from the torch and to keep the torch/flame away from the gas bottle. A further flash arrestor can be installed between the hose and the torch. The Defendant relied upon tradesmen such as Mr Beattie and Mr Remmington to conduct visual checks of equipment prior to it being used. At no time had the Defendant provided any information, instruction or training to Mr Remmington or Mr Beattie in relation to the pre-use checking and maintenance of welding equipment and gas cylinders, such as the air acetylene set, used on 14 December 1998. Mr Beattie and Mr Remmington received a work order docket directing them to fix the leak at the site. The work order slip contained a simple description of the task and did not contain any safety precautions to be employed by employees such as Mr Remmington or Mr Beattie nor did it provide any designated procedure or other safe system of work that Mr Remmington and Mr Beattie were to comply with in the carrying out of the task described by the work order slip.

10. As at 14 December 1998, where maintenance work involved "hot work", engineering and maintenance would obtain a hot work permit. Hot work included soldering, welding, grinding, brazing, oxy-cutting and any procedure that produced sparks or flames and also included any procedure that produced dust. 11. As at 14 December 1998, hot work permits were issued by the Hospital's security division. Security then isolated the fire alarm systems as a routine procedure. The engineering staff of the Hospital would only consult the Fire Services Department if they had concerns in relation to the area of work to be carried out.

12. On 14 December 1998 Mr Remmington and Mr Beattie obtained a hot work permit from the Hospital's security department.

13. As at 14 December 1998, the Defendant had no requirements on the hot work permit which would allow for the identification of hazards such as the use of welding equipment in the intensive care ward in close proximity to oxygen dependent patients. The Defendant had in place "Standard Operating Procedures" which required equipment to be inspected for test dates and fitness for use.

14. As at 14 December 1998, the Hospital did not have any procedures in place that ensured a visual check of the work environment by the Fire Services Department before a hot work permit was issued.

15. As at 14 December 1998, the routine maintenance of air acetylene or oxy acetylene equipment was the responsibility of the trade staff using it and also the leading hand and Building Supervisor. The system the Defendant had in place was that visual inspections were carried out by the appropriate trade staff on the equipment prior to each time it was to be used. Whilst the "Standard Operating Procedure" required a visual inspection, the Defendant had no formal system to ensure that these inspections were carried out prior to work being undertaken. However, the workmen in question did conduct a visual inspection of the equipment on the day in question. 6 Since the incident, the defendant has implemented a preventive maintenance programme for all equipment used by maintenance staff at the hospital and "hot work" procedures involving the use of oxy-acetylene or air-acetylene equipment are the subject of a training programme for all staff concerned. Specifically, the defendant has implemented the following changes since the incident to obviate the perceived safety risks :

(i) The hot work permits are now issued by the Fire Services Department;

(ii) all gas equipment now undergoes regular inspection;

(iii) equipment is tagged with the inspection dates and the computer database flags when the next inspection is due;

(iv) there is a review of all equipment throughout the area with all faulty equipment removed and replaced;

(v) flashback arrestors have been fitted to the equipment; and

(vi) the training programs for welding safety and hot work procedures and orientation progress for engineering staff have been reviewed and upgraded. The new "hot work" permit system is now supplemented by a policy requiring before the commencement of such work that "precautions should be taken including identifying and controlling any fire hazards, considering the possibility of changing circumstances during the process of hot work, properly ventilating the hot work area, isolating the area where hot work is to be performed and providing a safe entry and exit from the hot work area".

7 At the hearing, a number of photographs taken by Ms Stewart on 18 December 1998 were tendered into evidence - the photographs showed the subject acetylene gas cylinder, blowpipe and hoses, the ward itself, the piping to the sink requiring repair and the burn injuries to Mr Beattie's right arm and hand. Those photographs were of assistance in understanding the evidence otherwise given. Also tendered into evidence by the prosecutor was a Fire Investigation Report prepared by the Fire Services Department of the hospital which showed the cause of the fire as being "lead from acetylene cylinder caught alight" with the resultant damage from the fire being assessed at 10 per cent and as covering the hose on the equipment and vinyl flooring in the ward; the report included also a sketch of the location showing the patients' beds and nurses' station relative to the sink area where the fire occurred. Importantly, the report noted main concerns included that "the gas bottles equipment gauge and lead were in a dilapidated state", "there was no anti-flashback device fitted to the equipment" and "a patient was within 2 m of the welding work"; the recommendations made in the report, which have been implemented by the defendant, covered the stricter control of hot work processes.

8 In light of the agreed facts I am satisfied the offences have been proven and the pleas of guilty by the defendant were properly made. I propose to enter verdicts of guilty accordingly. It remains only to deal with the question of appropriate penalties for each offence. The defendant has one prior conviction for an offence against s 15(1) of the Occupational Health and Safety Act committed on 3 December 1997 and in respect of which the Chief Industrial Magistrate on 18 August 2000 imposed a fine of $15,000 where the maximum fine was $55,000. It was common ground between the parties, correctly in my view, that the maximum penalty for each offence here at the time it was committed and taking into account the defendant's prior conviction was $825,000.

9 In mitigation of penalty, counsel for the defendant, Mr A A Henskens, read an affidavit sworn on 14 June 2001 by Jules Potiki who was the Occupational Health and Safety Manager for the Royal Prince Alfred Hospital. Mr Potiki had a Bachelor of Engineering (Mining) and Master of Safety Science and had worked in the occupational health and safety field for over 13 years. He deposed that as a result of the present incident he now reported directly on a regular basis to the executive of the defendant on occupational health and safety issues. Mr Potiki's affidavit indicated that the Royal Prince Alfred Hospital was the largest hospital in the defendant's area and employed approximately 4,200 staff of whom most were engaged in the provision of direct clinical care; the Engineering Department had about 140 staff, including approximately 80 engaged in routine maintenance like the work of the two plumbers here. Mr Potiki referred to the subject incident and to the consequent investigation by the WorkCover Authority, including the issue by the prosecutor of a prohibition notice against use of the equipment concerned until two improvement notices had been complied with concerning the implementation of a routine programme of periodic inspection and maintenance for welding and other equipment used by tradesmen and the fitting of flashback arrestors to all cylinders - those notices were fully complied with by the due date. In terms of safety systems, Mr Potiki detailed the hospital's policies and procedures existing prior to and at the time of the subject incident with specific reference to consultation and communication, training, safe operating procedures, safety audits and inspections, manual handling and ergonomics, occupation hygiene, accident investigation and statistical analysis, and rehabilitation. As to the changes made following the incident on 14 December 1998, Mr Potiki deposed : 7.1 Following the accident the Engineering Services Department of RPA complied fully with the WorkCover prohibition and improvement notices.

7.2 Compliance measures included: (a) Three monthly in-house inspection of all oxy and acetylene equipment, supplemented by twelve monthly testing of gauges, hoses, blowpipes and flashback arrestors by external company (AdTech). Testing is prompted by computer generated work orders. The preventative maintenance program has been extended to all Engineering Services power tools, extension leads, and ladders. A true copy of the program and examples of "task details" was exhibited to me at the time of swearing this affidavit and marked "JP12" [pp 230-239]. There are now 4000 items on the Engineering Services computer system for planned preventative maintenance. In addition, there are around 7,500 work orders actioned per year for corrective maintenance. (b) Flashback arrestors have been fitted to all oxy-acetylene and air acetylene equipment at the bottle.

7.3 The Engineering Department has also implemented additional hazard control measures, in excess of the requirements of the improvements notices, to prevent similar incidents from occurring again, and improve OH&S management systems. These include: (a) Development of formal safety rules for use of acetylene equipment - these are in perspex frames and attached to the bottles or trolleys. A true copy of these rules was exhibited to me at the time of swearing this affidavit and marked "JP13" [pp 240-242].

(b) All appropriate Engineering Services staff attend a ½ day welding safety course run by PacWeld.

(c) Review of Hot Work Procedures and the RPAH Hot Work Permit Form resulting in an updated form, a true copy of which was exhibited to me at the time of swearing this affidavit and marked "JP14" [pp 243-247].

(d) All appropriate Engineering Services staff were re-trained in hot work safety procedures (course run in-house by Fire Officers).

(e) Flashback arrestors were fitted to some handsets as a trial, in addition to bottles, to protect hoses and prevent hose ruptures.

(f) A 9 point safety checklist was introduced to all computer generated job dockets for corrective maintenance, an example of which was exhibited to me at the time of swearing this affidavit and marked "JP15" [pp 248-249].

(g) Safety rules (arising from a risk assessment) were introduced to all computer generated job dockets for preventive maintenance, an example of which was exhibited to me at the time of swearing this affidavit and marked "JP16" [pp 250-252].

(h) The development of OH&S procedures to address other work related risk. A true copy of the Engineering Services Standard Operating Procedure Manual was exhibited to me at the time of swearing this affidavit and marked "JP17" [pp 252A-317]. 7.4 There has also been an increased training effort in other maintenance related OH&S issues including:

(a) Confined Space Entry (accredited 2 day confined space training course)

(c) Identification, assessment and control of high risk manual handling tasks

(f) Monthly workshop safety meetings include safety talks of ½ to 1 hour duration on a range of topics including legionella, hearing protection, occupational rehabilitation, ladder safety, recommended health surveillance for dust diseases and other relevant risks.

10 The way in which the hospital approaches occupational health and safety issues was described in this way by Mr Potiki: 8.1 RPA has a high level of commitment to OH&S. The initiatives and activities outlined above only represent a portion of current OH&S activity at RPA. RPA is continually striving to improve safety standards and prevent accidents. As Manager of OH&S at RPA I can say that the hospital staff and Management were upset by and very concerned over the incident involving Mr Beattie and Mr Remmington. I believe that the procedures now in place will prevent an incident of that nature occurring again.

8.2 RPA is a public facility that must meet the demand for providing healthcare services within an allocated budget. The level of funding available to RPA for the provision of direct patient care is decreasing as resources are transferred to population "growth" areas. Notwithstanding this, through the commitment of its management and appropriate targeting of funding, RPA continues to demonstrate its commitment to providing a safe environment and a high quality clinical service.

11 Mr Potiki was not cross-examined by the prosecutor. I accept the evidence he gave, subject to his reference to the defendant's provision of healthcare services "within an allocated budget" as to the relevance of which I will comment later.

12 In a most comprehensive written outline of submissions, Mr Phillips referred to the principles applicable to sentencing for occupational health and safety offences by reliance on the judgment of Wright J, President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No2) (2000) 99 IR 163 at pp 185-187 in pars [21]-[27]. Mr Phillips submitted, having regard to the primary aspect of the objective seriousness of an offence, that the offences here should be placed in the mid to high range of culpability even though only one person was injured; in fact, seven persons were at risk of injury so that there was every prospect of serious consequences for the defendant's failures in exposing the persons concerned to risks to their safety. The risks here were described for the prosecutor as acts of omission rather than of commission in that, as Mr Phillips said : In terms of the risk to health and safety, the circumstances of this accident represented a serious or high-range risk to the two (2) employees concerned and the patients who were in the Neuro Intensive Care Unit at the time the flashback occurred. A number of the patients were oxygen dependent and any fire or explosion near oxygen obviously poses the risk of an explosion. In the subject accident, the two (2) workmen and seven (7) patients were all at risk of serious injury.

It appears that prior to the accident, the subject of these proceedings, the Defendant did not have in force a pro-active system of maintenance of equipment nor did it employ a safe system of work for use by employees such as Messrs Remmington and Beattie in performing such tasks and further, the Defendant failed to provide relevant information, instruction and training to such employees regarding the maintenance and use of welding equipment and, in particular, pre-use checks for defects other than visual inspections.

After the event, the Defendant has quickly moved to implement significant steps to eliminate risk in this regard ... There is no reason as to why these actions could not have been implemented prior to the accident. The problems existent were easily remedied by the Defendant.

It is submitted that this is precisely the case in this matter in that the Defendant has failed to pro-actively pursue a policy of identifying, detecting and eliminating areas of risk.

However, in the Defendant's favour is the lack of any pre-existing report or information pertaining to the equipment for its state which was not acted upon. There is no allegation that the Defendant failed to act upon a complaint that the equipment required repair. In this case, there is no suggestion of any awareness on the part of the Defendant of the existence of an unsafe situation prior to the accident on 14 December, 1998. However, upon enquiry after the accident, the defects in both the system of work and the equipment were easily and quickly identified. Consequently, it is submitted that there is a degree of foreseeability in relation to this accident which tends to aggravate the nature or gravity of the offence.

13 Mr Phillips said it was relevant in assessing an appropriate penalty to take into account the prior conviction of the defendant. He accepted, in mitigation of what the penalty might otherwise be, that the defendant had co-operated with the prosecutor in the investigation of the incident and had entered a plea of guilty as early as reasonably possible. The remedial action taken by the defendant to avoid in the future the identified risks to safety, effected in a prompt manner, was also relevant to take into account in its favour. Mr Phillips conceded, properly in my view, that although the defendant was charged with two breaches of the Occupational Health and Safety Act the risks to both the employees and the non-employee patients alike arose from the same facts so it was appropriate to apply the principle of totality in the sentencing process: see Pearce v The Queen (1998) 194 CLR 610 at pp 645-646; "There is", as Mr Phillips submitted, "no extra fact or particular as to differentiate the risk or obligations owed by the Defendant in this matter to either its own employees or the patients in the Intensive Care Unit". The discussion of the application of the principle of totality to prosecutions under the Occupational Health and Safety Act, as discussed by this Court in WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284 at pp 295-296 in pars [29]-[30] per Wright J, President, was submitted to be an appropriate approach in relation to the present matter.

14 The way in which the defendant viewed the present charges in light of its statutory functions in relation to the health of citizens and as a measure of its considerable concern and contrition for what occurred may be seen from the opening submission of Mr Henskens to the following effect : Can I commence at the outset by stating that this prosecution and these offences are a complete anathema to what the defendant is all about. The defendant is constituted by a large number of people who are dedicated to the curing of sick people and not for the creation of injury. It takes this matter very, very seriously. Present in Court in addition to Mr Potiki who has sworn the affidavit, the defendant is represented by Jan Whelan who is the Area Director of Corporate Services and by Mr Tony Kenny who is the Area Director of Engineering Services who is directly responsible for the area from which the men came in the defendant's organisation.

It views this matter very seriously and when I take your Honour to the material your Honour will see the swift and comprehensive way in which the defendant has responded to this matter and the seriousness with which it takes its occupational health and safety obligations generally.

I raise that from the outset to deal with the last matter raised by my learned colleague which is in my submission when your Honour has regard to the material before you your Honour will be satisfied that there is no need for any specific deterrence in this case because the defendant is committed to dealing with occupational health and safety issues in a responsible manner. 15 16 Mr Henskens basic submission was that "the objective seriousness of the offence is significantly less than was submitted to you by my learned friend". Counsel described the true nature of the offences in objective terms as being "the failure to have an appropriate preventative maintenance system in place which would identify latent defects". In terms of the subjective features justifying a reduction in penalty, Mr Henskens submitted that a full discount for an early plea of guilty was warranted and that the matters should be assessed as one offence only and not two offences as charged. It was manifest, submitted counsel, that "the contrition of the defendant ... is genuine and the material would suggest that to be the case." In that latter respect, Mr Henskens referred in detail to the evidence given by Mr Potiki.

17 In assessing the level of penalty in these matters, my view is that the primary element of the objective seriousness of each offence is to be viewed as the defendant's failure to ensure the oxy-acetylene welding equipment was in good order and repair, including the fitting of a flashback arrestor, and in failing to provide Mr Remmington and Mr Beattie with such information, instruction and training as to the maintenance and use of the welding equipment with particular regard to pre-use checks for defects. In a real sense, as Mr Phillips suggested, the offences here resulted from acts of omission rather than of commission; if those failures had not occurred, and they were readily foreseeable in circumstances where such equipment was to be used, then, I am satisfied, these offences with the consequent risks to the health and safety of the two employees and seven patients would simply not have existed. The very nature of the risks so created in a hospital setting with patients only has to be stated to warrant the degree of seriousness involved to be of a significant order. It was indeed fortuitous that the fire was controlled with limited damage only, albeit the burns to Mr Beattie's right arm cannot be minimised. I assess the objective culpability for each offence here at about the mid-point of the lower half of the range of penalty available.

18 In reaching this view, I have had in mind Mr Henskens' proposition that the ability or resources of a defendant to pay a particular penalty were relevant in the sentencing process. I agree: see Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at p 467 in par [82]. However, Mr Henskens then developed that proposition in order to minimise any penalty on the defendant with the following submission : In my submission that general principle is applicable here in the sense that the defendant is a nonprofit organisation. It is an organisation which has a charter to treat public patients. It is an organisation which by and large treats the less well off of our society, the more wealthy people have private insurance, go to private hospitals. There is now legislative tax matters which penalise the higher earners from not having private insurance so your Honour in my submission can take into account and would properly take into account the fact that any penalty is going to rest on a nonprofit organisation with a limited budget. This is necessarily going to have an effect on the customers of the defendant, that's the community at large. Section 6 of the Occupational Health and Safety Act is expressed so as to make the Crown bound by the statute, not only in right of New South Wales but also the Crown in all its other capacities. That section, in my view, and as Mr Phillips submitted, is applicable in the present case as the defendant is a manifestation of the Crown as incorporated under the Health Services Act . The question of the appropriate level of penalty to be imposed upon a Crown defendant was expressly raised in this respect by Mr Phillips' reliance upon the following passage from my judgment in WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 at pp 21-22 : I agree with the proposition that the liability of the Crown to fines for breaches of statutory obligations, such as the Occupational Health and Safety Act , represents the means to ensure a standard of public conduct at least equal to that which the Crown demands of its subjects and of society at large. I affirm those views. Mr Henskens' submission on this aspect, therefore, is rejected and I approach the sentencing of the defendant on an equivalent basis to that of any other defendant.

19 In the result, I assess a fine for each of the offences here, as a proper measure of the objective seriousness, in the amount of $180,000 thus giving a total of $360,000 for both offences.

20 As to the effect of the features subjective to the defendant on the ultimate sentence fixed, and with the facts set out in Mr Potiki's evidence very much in mind, I would propose to allow a total discount for all factors of 35 per cent. Specifically, those factors include the early plea of guilty, co-operation with the WorkCover Authority, attitude towards and action to achieve health and safety in the workplace, and, most importantly, the manifest contrition and concern for what occurred. That gives an amount in reduction of penalty for each offence of $63,000 so as to result in a fine for each offence of $117,000, a total for both offences of $234,000.

21 I accept the common position of the parties that it is appropriate to apply the principle of totality so as to ensure the defendant is not penalised twice for the commission of elements common to both offences. Here, as Mr Phillips very properly conceded, the elements of the two offences were identical. Therefore, both charges should be considered as if they constituted one offence so that an appropriate total penalty for both offences would be an amount of $117,000. I would apportion that total amount as to $58,500 for each offence in accordance with the preferred approach as stated by the Full Bench in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at p 194 in par [29].

22 I make the following orders - Matter No IRC 5919 of 2000

2. The defendant is fined an amount of $58,500, with a moiety thereof to the prosecutor.

3. The defendant is to pay the prosecutor's costs. Matter No IRC 5920 of 2000

2. The defendant is fined an amount of $58,500, with a moiety thereof to the prosecutor.

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