WorkCover Authority of New South Wales (Insp West) v JR & EG Richards Pty Ltd t/as JR Richards & Sons

PROSECUTOR Ms F Backman of counsel SOLICITOR Mr G McCann Legal Services Branch WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr G Phillips of counsel SOLICITOR Mr M Laurence Stacks - The Law Firm

JUDGMENT: - 37 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Walton J, Vice-President 8 November 2002 Matter No. IRC 319 of 2001

INSPECTOR COLIN WEST v J R & E G RICHARDS PTY LIMITED (TRADING AS J R RICHARDS & SONS). Prosecution under s 15(1) of the Occupational Health and Safety Act 1983. Matter No. IRC 321 of 2001

INSPECTOR COLIN WEST V J R & E G RICHARDS PTY LIMITED (TRADING AS J R RICHARDS & SONS). Prosecution under s 15(1) of the Occupational Health and Safety Act 1983.

JUDGMENT [2002] NSWIRComm 285 1 This matter concerns a prosecution brought by Inspector Colin West of the WorkCover Authority of New South Wales ("the prosecutor") pursuant to s15(1) of the Occupational Health & Safety Act 1983 ("the Act"), against J R & E G Richards Pty Limited (trading as J R Richards & Sons) ("the defendant"). 2 Section 15 of the Act is 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.

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health,

(b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,

(c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees,

(d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or

(ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or

(ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

(3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer.

(4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section. 3 The prosecution arose out of fatal crush injuries suffered by Mr Ian David Young, an employee who drove and operated a forward compacting garbage truck for the defendant, on the morning of 15 December 1999. As a part of the normal cleaning of the truck the operator would be required to enter the forward aspect of the compactor compartment, where the compactor blade would meet the forward bulkhead, to remove material which became lodged. Having retracted the compactor blade and entered the compactor compartment, the compactor blade closed, crushing Mr Young. The deceased was found by a co-worker at approximately 5am on the morning of 15 December inside the compactor compartment of the truck. 4 At the hearing of the matter, leave was granted (by consent) to amend the charge in both Matter Nos. IRC319 and 321 of 2001. In its final form, the charge in the summons in Matter No. IRC319 was in the following terms: I, Inspector Colin West, of the WorkCover Authority of New South Wales, …, an inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under section 48 of the said act to institute proceedings in the within matter alleged (sic) that JR & EG Richards Pty Ltd t/as JR Richards and Sons [ACN: 000 389 793] ("the defendant"), a corporation whose registered office is situated at 2 Coral Avenue at Tuncurry in the State of New South Wales being an employer on 15 December 1999, at the waste depot at Kingfisher Road, Port Macquarie, in the State of New South Wales DID FAIL to ensure the health, safety and welfare at work of all its employees, in particular, Ian David Young, in failing to provide such information, training and supervision, as may be necessary in the operation of the front loading garbage compactor truck so as to ensure the health and safety of employees at work, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. 5 The particulars of the amended charge were as follows: (a) The defendant at all material times employed personnel at the waste services recycling plant.

(b) The defendant at all material times owned and operated the front loading garbage compactor truck registration number UGB 110 (Unit Number 318).

(c) The defendant failed to provide such information and training, as may be necessary in the operation and purpose of the proximity switch on the side access door of the garbage compactor compartment of the front loading garbage compactor truck.

(d) The defendant failed to provide such supervision as may be necessary to ensure the proximity switch of the side access door of the garbage compactor compartment of the front loading garbage compactor truck was operational, so as to ensure the health and safety of its employees at work.

(e) As a result of the said failures, Ian David Young suffered fatal injuries. 6 The charge contained in Matter No. IRC321, as amended, was in the following terms: I, Inspector Colin West, of the WorkCover Authority of New South Wales, …, an inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under section 48 of the said act to institute proceedings in the within matter alleged that JR & EG Richards Pty Ltd t/as JR Richards and Sons [CAN: 000 389 793] ("the defendant"), a corporation whose registered office is situated at 2 Coral Avenue at Tuncurry in the State of New South Wales being an employer on 15 December 1999, at the waste depot at Kingfisher Road, Port Macquarie, in the State of New South Wales DID FAIL to ensure the health, safety and welfare at work of all its employees, in particular, Ian David Young, in failing to provide or maintain systems of work in the operation of a front loading garbage compactor truck that were safe and without risk to health, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. 7 The particulars of that charge were: (a) The defendant at all material times employed personnel at the waste services recycling plant.

(b) The defendant at all material times owned and operated the front loading garbage compactor truck registration number UGB 110 (Unit Number 318).

(c) The defendant failed to provide or maintain systems of maintenance of the front loading garbage compactor truck that were safe and without risk to health.

(d) The defendant failed to provide or maintain systems of work to ensure that access could not be gained through the side access door of the front loading garbage compactor truck whilst the engine was operating and the hydraulic compactor blade ram was capable of inadvertently operating.

(e) As a result of the said failures, Ian David Young suffered fatal injuries. 8 At the hearing, the prosecutor tendered an agreed bundle of materials. That agreed bundle included a statement of agreed facts, a factual report of the prosecutor, an initial engineering report dated 23 December 1999, a final engineering report dated 31 March 2000 which had annexed to it various photographs and technical schematics, a technical report of Inspector Roger Jennings and 14 colour photographs of the truck and the deceased. 9 In addition to the agreed material, the prosecutor tendered an extract from the WorkCover Authority Prior Convictions Database which indicated the defendant had a single conviction under s15 of the Act entered on 26 June 1991 in which a penalty of $10,000 was imposed. 10 The statement of agreed facts was in the following terms: 3) At all material times the defendant conducted a waste disposal and recycling business from the waste management depot at Kingfisher Road at Port Macquarie in the State of New South Wales. 4) At all material times the defendant owned and operated a number of trucks and in particular a front loading garbage compactor truck registration number UGB 110 (Unit Number 318), from the waste management depot at the above location. 5) At all material times the defendant employed a number of personnel in operating the waste management depot and in particular employed Ian David Young, 46 years of age as a garbage truck compactor driver and operator. 6) On the 15 December 1999, Ian David Young was fatally crushed whilst working alone inside the garbage truck compactor registered number UGB 110, unit number 318. Ian Young was 46 years of age. He had been employed with the defendant for approximately three years and had been driving this particular vehicle for two years. An inspection of the front loading garbage truck compactor was undertaken on that date and a number of other dates. A factual inspection report and photographs were taken. The investigation revealed that a co-worker, Mr Perry Mackie, arrived for work at the Port Macquarie waste recycling depot at approximately 5.05am and discovered Ian Young's body trapped inside the compactor body between the compactor blade and the forward bulkhead of vehicle UGB 110, unit number 318. Perry Mackie stated that the vehicles engine was running and that some vehicle lights were on. Perry then operated the cabin controls and released the pressure of the compactor off the deceased. As there were no vital signs Perry then rang the ambulance and his supervisor, Mr Matt Hogan, the Plant Manager. Perry was discovered by Matt Hogan upon his arrival in a very distressed state wandering up the road. 7) Port Macquarie Police Detective Mick Lang then ordered the garbage truck to be taken and impounded in the motor vehicle impound lock-up of the Port Macquarie Police Station. On Detective Lang's request WorkCover initiated initial testing of the vehicle at the Police impound yard and the vehicle was then released into the custody of WorkCover and taken to "Testsafe" at Londonderry for expert analysis of the vehicle systems. 8) The initial on-site testing at the Police Impound Yard by WorkCover found that a safety interlocking switch known as a 'proximity switch' was not working. The purpose of this switch was to sense if the side access door into the compactor body was open, and if so would prevent the compactor ram from engaging even if the vehicle engine was operating. 9) At the Police Impound Yard it was possible to recreate a scenario which is "reasonably probable": The compactor blade was positioned just rearward of the side access door'; a position consistent with that used by other drivers and the deceased on previous occasions. This position allows for entry into the forward bulkhead region, behind the compactor blade, for the purpose of cleaning out extraneous material that inadvertently may have fallen into this section instead of the garbage compactor section. The engine was shut down and air pressure pumped down. A switch known as the 'autopack/manual' switch was set to 'autopack' and then engine and master switch was switched back on. After approximately 3 minutes and 25 seconds the compactor blade suddenly activated and returned to its home position against the forward bulkhead, taking just 3 seconds to do so. The indicated air pressure in the drivers cabin was 400 k.p.a. This demonstration was able to be recreated on 2 out of 2 other attempts with similar results. The local coroner was in attendance at one of these. This same situation did not occur with the 'autopack/manual' switch set to manual. Perry Mackie says that his recollection, at the time, is that the switch was in the manual position. 10) The garbage truck was then taken to 'Testsafe' as, during the course of the initial investigation by Principal Inspector Roger Jennings, WorkCover Engineer Richard Clarke and Inspector West, it had become apparent that the wiring of the proximity switch and the condition of the side access door and latch needed further expert and detailed investigation. 11) The expert investigations, Technical Support Document 1 complied by Principle Inspector Roger Jennings' and Technical Support Document 2 compiled by Engineer Richard Clarke and Senior Inspector Hugh Corner, found that the wiring of the proximity switch had been tampered with or changed so that it would disable the proximity switch function, thus not affording protection to persons who may be working inside the compactor with an engine running. This tampering was considered to be the result of the actions of a reasonable (sic) competent person(s) due to the complicated nature of the wiring. The defendant's personnel did not have the expertise to repair the proximity switch. Any work done on such a switch would have been referred to outside auto electricians. 12) Further investigation and interviews revealed that there were deficiencies in the company's vehicle maintenance and inspection program. Although all garbage trucks were subject to a generic service schedule recommended by the manufacturer of the vehicle and chassis, there was no mention of the need to maintain or test the side door proximity switch, its alignment or indeed if it was in fact functioning. The compactor body which houses the proximity switch was built by "Rico Recovery Systems" of Chinderah, Northern N.S.W. When J.R. and E.G. Richard Pty Ltd took initial possession of this vehicle, some 5-6 years before the accident, it is claimed that the proximity switch was functioning correctly. It could not be determined exactly when this switch stopped functioning or which person or persons had deliberately interfered with it. 13) The deceased had been observed working inside his compactor with the engine running on previous occasions. Perry Mackie, the co-worker who discovered Ian's body, had witnessed him doing this on numerous occasions including just the day before the accident. Perry did not take any action about this. Perry himself admitted to working inside a compactor with the engine running. 14) Matt Hogan, Port Macquarie Plant Manager, also admits to have seen the deceased working inside his compactor, in front of the blade retrieving objects, with the engine running. On 22 November 1999 Matt Hogan claims to have gone over to Ian's vehicle and shut down the emergency stop button and had words to Ian about working safely. No official caution appears to have been generated by this breach of company policy. Matt Hogan also admits to having seen apprentice, 19 year old Chris Buekers, attached to the company under a job placement agency, working in a similar fashion, during the month of September 1999. Again Matt Hogan shut down the vehicle and gave the apprentice a "dressing down". It should be noted that no formal induction safety training appears to have been given to Chris Beukers or Ian Young. 15) The extent of safety training appears to have been, for some drivers, including Ian Young, but not all drivers; to be given and sign for a company booklet called "Training and Safety Manual". Neither the Company Director, Mr Joe Richards, nor the Port Macquarie Plant Manager, Mr Matt Hogan, could explain how the company then satisfied itself that the recipients of this training manual had indeed read it and/or understood the contents and their implications. 16) It would appear that Matt Hogan had been elevated to the position of Port Macquarie Plant Manager approximately two years before the fatality, and had been the driver of UGB 110 prior to this appointment. Little or no instruction or training seems to have been given to Matt by the company in order for him to fully understand his obligation as a Manager under the Occupational Health and Safety Act 1983. he had, prior to his employment with the defendant, been a supervisor for Blue Mountains City Council, responsible for garbage, sullage, cemetery and stock controller staff. He had also run his own family business. 17) The Foreman Mechanic, Mr Laurence Joplin, from the Tuncurry depot, had responsibilities as not only a mechanic, but for the overall supervision of all other mechanics, including those at Port Macquarie. There was no apparent company procedures for him to regularly inspect the work of other mechanics. Laurence Joplin admits to having worked on the wiring associated with, but not directly reliant to the proximity switch on unit 318. In September and October 1999 he performed repair work on a 'whisker switch' located inside the compactor area where the deceased was found. The purpose of this switch is to sense the return of the compactor blade momentarily before it returns to its home position against the forward bulkhead. This switch also activates automatically the 'packer light' which allows the operator to see inside the compactor from the rear of the driver's cabin. The wiring from the proximity switch (where according to experts reports, the wiring had been tampered with). It should be noted that by manually operating this switch the returning compactor blade should stop as if it had sensed it was in the home position up against the forward bulkhead. The repair work on this whisker switch was too complicated for Laurence Joplin to complete without the need for him to discuss the wiring with the compactor system designer, Simon Mathewson from Rico Recovery Systems. Mr Joplin stated that he never modified the initial design in any way but that "well you take one off when you change loom and put one wire off, put one wire straight back in the same hole". Following his repair work Mr Joplin did not check to see if the side door proximity switch function was still operational. When asked, "how does it (being the proximity switch) stop the hydraulics working on the packer", he replied, "I have no idea". 18) The system of work since the accident still requires drivers to access the compactor body area to clear out extraneous material from time-to-time. The company however, is reinforcing the requirement for drivers to shut-down the engine and remove the keys (as outlined in document S.O.P 1, "Safe Operating Procedures for Front Lift Vehicles"). Prior to the accident this document existed but did not form part of any formal training. Some drivers were aware of it, others not. 19) The side door proximity switches are to be included in ongoing maintenance schedules, and the manufacturer Rico Recovery Systems has been re-designing the interlocking switches in consultation with Principal Inspector Roger Jennings to ensure that they conform to the appropriate Australian Standard. 20) It is alleged that the defendant, JR and EG Richards Pty Ltd trading as JR Richards and Sons, has breached Section 15(1) of the Occupational Health and Safety Act on the 15 December 1999 at the waste management depot at Kingfisher Road, Pt Macquarie in the State of New South Wales, being an employer did fail to ensure the health, safety and welfare at work of all its employees, in particular Ian David Young, in failing to provide such information, training and supervision, as may be necessary in the operation of the front loading garbage compactor truck so as to ensure the health and safety of employees at work, contrary to section 15(1) of the Occupational Health and Safety Act, in that: (a) The defendant at all material times employed personnel at the waste services recycling plant.

(b) The defendant at all material times owned and operated the front loading garbage compactor truck registration number UGB 110 (Unit Number 318).

(c) The defendant failed to provide such information and training, as may be necessary in the operation and purpose of the proximity switch on the side access door of the garbage compactor compartment of the front loading garbage compactor truck.

(d) The defendant failed to provide such supervision as may be necessary to ensure the proximity switch of the side access door of the garbage compactor compartment of the front loading garbage compactor truck operational, so as to ensure the health and safety of its employees at work.

(e) As a result of the said failures, Ian David Young suffered fatal injuries. 21) It is alleged that the defendant, JR & EG Richards Pty Ltd trading as JR & EG Richards & Sons has breached Section 15(1) of the Occupational Health and Safety Act on the 15 December 1999 at the waste management depot at Kingfisher Road, Pt Macquarie in the State of New South Wales, being an employer did fail to ensure the health, safety and welfare at work of all its employees, in particular Ian David Young, in failing to provide or maintain systems of work in the operation of a front loading garbage compactor truck that were safe and without risks to health, contrary to section 15(1) of the Occupational Health and Safety Act, in that: (a) The defendant at all material times employed personnel at the waste services recycling plant.

(b) The defendant at all material times owned and operated the front loading garbage compactor truck registration number UGB 110 (Unit Number 318).

(c) The defendant failed to provide or maintain systems of maintenance of the front loading garbage compactor compartment truck that were safe and without risk to health.

(d) The defendant failed to provide or maintain systems of work to ensure that access could not be gained through the side access door of the front loading garbage compactor truck whilst the engine was operating and the hydraulic compactor blade ram was capable of inadvertently operating.

(e) As a result of the said failures, Ian David Young suffered fatal injuries. 11 The defendant tendered three affidavits in mitigation of sentence by: Mr Geoffrey Brian Gallagher, Mr Mathew Charles Hogan and Mr Kenneth Ian Richards. Mr Gallagher and Mr Richards were required for cross-examination. 12 Mr Kenneth Ian Richards gave evidence that the defendant was a family company, started by his father in 1959. His family operates waste disposal businesses throughout New South Wales and in Queensland. He took over as manager of the defendant after his father and mother retired in 1993. 13 Mr Richards gave evidence of having immediately conducted an investigation into the cause of the accident. This investigation encompassed inquiries being made with all employees and any contractors engaged to perform work on the relevant truck and a review of all the paperwork held by the defendant in relation to the truck to determine when and how the wiring in the junction box had been tampered with. The inquiries were directed to finding who was responsible for the tampering. Despite these steps having been taken, the defendant was unable to determine how the junction box came to have been rewired so as to disengage the proximity switch on the side entrance door to the compactor compartment. 14 The defendant also engaged the services of an occupational health and safety consulting firm, Hughes OHS & Risk Management Pty Ltd, to assess the defendant's management systems and investigate and report on the accident. 15 Following the accident, the defendant began to train one of its employees, Mr Peter Jude, in the area of occupational health and safety. Mr Jude had undertaken some 19 courses ranging from dangerous goods awareness to risk assessment and occupational hygiene. At the time of the making of Mr Richard's statement, he was intending to complete the General Induction and General Induction Construction training courses conducted by the WorkCover Authority of NSW with a view to completing a Diploma in occupational health and safety. Whilst it was Mr Richard's evidence that there were numerous changes taking place in the defendant's operations, he stated the defendant "was very concerned that a full audit of all safety procedures and systems was undertaken" and that relevant changes to systems be made "as a matter of priority". In an effort to assist Mr Jude and expedite any changes required to be made, the defendant engaged the services of Mr Geoff Gallagher, initially as a consultant and then as an employee, to assist the defendant in improving the defendant's approach to matters of health and safety. 16 Mr Gallagher identified a need for management within the defendant to take a more "hands on" approach to matters of health and safety. As a consequence, Mr Richards indicated that the defendant had engaged a new manager at its Tuncurry depot, Mr Rummery, and commenced training that person in matters of occupational health and safety. The defendant also identified a need to provide uniformity in its "material and systems" between depots. In conjunction with the defendant's major supplier of plant and equipment, referred to in his evidence as Solo Waste (a company operated by his uncle's family), the defendant engaged the services of a consultant to assist in "fleet management issues". That is, to provide more uniformity in the machinery used by the defendant's drivers so that they could "more competently and safely be able to move seamlessly between older and newer machinery and different units during the course of their employment". To assist in managing the maintenance needs of its fleet, the defendant purchased a "Fleetmax system" and sent employees on training courses to properly implement that system. Further, senior management were being trained in occupational health and safety matters. 17 Mr Richards indicated that in undertaking the review of its safety procedures, the defendant had regard to the Occupational Health and Safety Act 2000 and related regulations. To that end, the defendant had established a safety committee which met monthly. 18 The steps taken to improve systems, work methods and train its employees had, on Mr Richard's evidence, involved considerable expenditure on behalf of the defendant. The engagement of the new manager at the Tuncurry site, the engagement of Mr Gallagher and the consultant relating to the management of its fleet, had resulted in the expenditure by the defendant of some $145,000 (estimated on a per annum basis). Further, he estimated that the system changes and training courses attended by staff had resulted in expenditure in the order of $100,000. This estimated expenditure did not include the time taken away from the tasks undertaken by the defendant's employees as part of its normal business. He also gave evidence of financial assistance provided to the deceased's wife and family, including continued salary payments, funeral arrangements and legal assistance. The defendant co-operated from the outset with the prosecutor. It made its employees available for interview, arranged for the designer of the truck to assist WorkCover in ascertaining the cause of the accident and made the relevant truck available for investigation in Sydney. It also made relevant information available to the prosecutor. 19 Finally, Mr Richards noted that the death of Mr Young had "devastated" the workforce at the Port Macquarie depot. The defendant provided counselling services for its staff. Further, the defendant removed the relevant truck from its operations at the Port Macquarie depot on a permanent basis, despite the need for a vehicle of its nature at that site. It had also removed the 'autopack' feature from all of its trucks. 20 The defendant was "very concerned for the safety and welfare of all its employees and their families". Mr Richards believed that he had "taken all steps possible to eliminate as far as possible" the potential for a similar accident in the future. 21 Mr Hogan's evidence went broadly to the operation of the business, particularly in relation to matters relating to health and safety, his training as a manager (including training undertaken after the incident), assistance provided to the family of the deceased following the accident and assistance provided to the workforce. He had been in the role of Manager of the depot since February 1997 and responsible for, amongst other things, the direct supervision of all employees and subcontractors engaged by the defendant and ensuring that all employees were suitably trained. 22 Mr Hogan stated that there were many "systems" in place at the defendant's premises prior to the accident which he had "inherited" from the previous manager. He noted that "many of the systems had some paperwork associated with them but as a result of the incompetence of the previous manager there were some flaws in the system". He described these systems, presumably systems which he considered relevant to the provision of a safe workplace, in the following way: 10. There was a small green booklet and each new employee was given a basic induction. Each driver was supervised on their truck generally for a period of 3-6 days with another driver.

11. There were checks for licenses and there were also driving assessment checks that were carried out by an independent consultant. 23 As to instruction relating to entering the compacting compartment of the truck, Mr Hogan stated that "each driver had been told to take the keys out of their truck and not go into the back of the truck with the engine running". Mr Hogan considered this to be the "policy" of the defendant. Whilst he conceded that this policy was not in writing, "it was and is known by all employees". He gave evidence of personally having specifically informed "every driver" of this policy in his time as Manager and that he had given warnings to employees "about the need to have your keys in your pocket when you go into the back of the truck". He had specifically informed the deceased of this policy. He gave the deceased "one warning". It would appear that this warning was given a relatively short time before the accident. 24 As to the re-wiring of the truck, Mr Hogan stated that he had "personally spoken" with each employee in an effort to uncover how the wiring in the truck had come to be altered, to no avail. He had been the driver of this particular truck prior to it having been assigned to the deceased and had no difficulty in its operations. It had worked "perfectly well". He indicated that he had no problems with the side door or the proximity switch and gave evidence of an occasion on which he had the opportunity of observing the proximity switch on the side door in proper working order. 25 Immediately following the accident, the defendant conducted assessments on "all other machinery to check that it was safe and all safety items were operating properly". The defendant's mechanic was directed to ensure that all safety devices on each of the defendant's vehicles were in working order. Mr Jude from the Tuncurry office stated that he immediately took a more active occupational health and safety role and "started to develop more systems and paperwork". All staff were put through a general induction and specific job related induction training. This specific training included the provision of a task specific manual. 26 The defendant engaged the services of Mr Geoff Gallagher specifically for the purpose of assisting in the development of safe systems of work. He had introduced what was described as an "integrated management system" which, in relation to matters of health and safety, included: · A specific general induction course · Induction for each piece of plant or machinery · Hazard identification in relation to all sites and machinery · Follow up check that all employees understand their induction · Specific paperwork in relation to each piece of machinery, particularly trucks to identify risks and all safety items that need to be checked on all services · Fully identifying all runs and any hazards associated with runs including overhead hazards etc. 27 Further, the significant changes that have been undertaken at the defendant's Port Macquarie depot have resulted in "a number of the older employees leaving because things were no longer being done in the old way". Mr Hogan indicated that he had been supported by Ken Richards in the dismissal of a number of employees specifically for their continued failure to abide by the safe systems of work adopted by the defendant following the accident. He indicated that "all employees were advised of the dismissals and that any behaviour that was unsafe would not be tolerated". 28 Mr Hogan stated that, following the accident, a safety committee was formed which met on a regular basis. Mr Hogan had undertaken numerous training courses that related to the management of a safe workplace following the accident, including risk assessment and line managers courses conducted by the WorkCover Authority of New South Wales. Mr Hogan stated that in the period leading up to the incident, he was not aware of any "serious accident" in the defendant's business. There was no accident resulting in an employee's work being "restricted". 29 Mr Hogan considered the deceased to have been a "committed", "trusted" and "well liked" employee who was sadly missed by all at the defendant's Port Macquarie depot. The accident had a significant effect on the deceased's co-workers and management. Counselling services were provided to its workforce by the defendant at its cost immediately following the accident. Some employees needed to avail themselves of this service for some time. 30 Further, following the accident the deceased paid for all funeral arrangements on behalf of the deceased's wife and continued to pay her the deceased's salary in full from the time of the accident in December 1999 through to June 2000. Mr Hogan was instructed by Mr Richards specifically to "keep in contact and assist Mrs Young in any manner that she needed both financially and emotionally". The burial plot for the deceased and a neighbouring plot (for the deceased's wife) were purchased by the defendant on behalf of the Young family. The defendant also provided a solicitor to assist Mrs Young with the necessary legal arrangements following the accident. 31 Mr Hogan was not required for cross-examination. 32 The final witness for the defendant was Mr Geoffrey Brian Gallagher. He was engaged by the defendant, initially on a consultancy basis, then as an employee, specifically to: a) Review all environmental and occupational health and safety issues; b) Introduce management and occupational health and safety and environmental systems and reporting; c) Implement and monitor an occupational health and safety and environmental culture within the firm. 33 His evidence went to the system that he had developed and adopted within the defendant organisation known as the Integrated Management System ("IMS"). His written statement had annexed to it a substantial amount of documentary material which had been developed as a part of this system. These documents ranged from statements of general policy and objectives through to task specific procedures. The new system involved a monthly process of monitoring, reviewing and reporting upon its implementation.

34 Mr Gallagher stated that prior to the introduction of the IMS, the defendant did have in place a safety management system, including a system of inductions and maintenance schedules, but these systems were often not formal. There was often no recording of relevant occupational health and safety information.

35 The IMS included the introduction of a general induction booklet for new employees and specific inductions for drivers engaged in domestic garbage (in addition to inductions relevant to drivers handling bulk industrial bins) in relation to each truck.

36 These inductions involved safety considerations. Employees were assessed during a trial period and formally assessed after being confirmed in their position. Employees spent at least one week with the manager in using the truck on a particular run before the induction was completed.

37 The IMS involved a risk assessment on new vehicles and a full repair and maintenance system. A fleet management system, it was stated, had been introduced to enable a more strict record of all maintenance and repair work carried out on all units.

38 Mr Gallagher stated that the defendant had an ongoing commitment to occupational health and safety and, therefore, IMS incorporated processes to enable a review of the system by consultation, monitoring and reporting. Detailed evidence was given about other aspects of the system and those involved in its introduction which I do not recite in full in the summary of his evidence, but I have noted them for the purposes of this judgment.

39 As to the accident, Mr Gallagher stated: I have identified that the key issues in the circumstances of the accident were:

a. insufficient induction training. b. insufficient monitoring of safety equipment/systems. c. employees not following safety directions/having a "safety culture". 40 In his supplementary oral evidence, Mr Gallagher explained the reference to "insufficient monitoring of safety equipment/systems" in the aforementioned statement. He stated that under the previous system it was, to some extent, a matter for the drivers as to how they would carry out basic maintenance on the trucks. The practices in this respect varied. Whilst the management did ask the drivers to ensure that they carried out maintenance and there were circumstances where management conducted "checks", the system was "fairly informal" and "there [was] not a great number of records per se leading up to the accident where it showed that management was monitoring and reviewing exactly what was being done".

41 In his statement, Mr Gallagher gave evidence as to changes which have been introduced after the accident as follows: As a result of the changes that have been implemented I believe that these (and other areas) have been addressed and it is my belief that further accidents and in particular accidents in the nature of this will not occur again. An accident on WorkCovers most [probable] scenario can no longer happen as the auto pack function has been disabled on all company trucks. I believe that this kind of accident will not occur again based upon the driver adhering to operating procedures. Also the following engineering and administrative controls have been instituted: · The Autopack has been disconnected in all units. · Isolation switches have been fixed to all side accesses to the compactors of all side lifter units. · Pre-start and regular maintenance checks have been developed. · All drivers and maintenance personnel have been given an induction and instruction in Safe Operating Procedures for entering the confines of a compactor. · All drivers and maintenance personnel have been issued and instructed in the use of lockouts and tagging.

42 Mr Gallagher gave supplementary oral evidence as to these changes. His reference to the WorkCover "scenario" in this context was a reference to the assessment of risk by the WorkCover Authority of New South Wales in relation to the accident. He understood that risk to relate to the autopack system which resulted in the blade returning automatically to its home location in certain circumstances.

43 Mr Gallagher also gave supplementary oral evidence as to changes introduced after the accident as follows: 1. A formal system was introduced whereby drivers were required to turn the engine off and isolate the system by placing the keys in their pocket prior to carrying any work out in the back of the truck. This is supported by a requirement that a lockout tag be placed on the unit (even in the case of maintenance) so that no work could be performed on the unit until the lockout tag was removed. 2. Further, the defendant had "banned" drivers from carrying out work in the compactor section of the garbage truck, unless they could demonstrate that it was necessary for them to enter the compartment in order to clear a blockage. If such a requirement arose, the management strictly enforced a requirement that the operating features of the vehicle be completely isolated. If possible, a second person would attend the vehicle during the clearing of the blockage. That person should wait outside the vehicle to ensure the safety of the person carrying out the work in the compactor area. The attendance of a second person was also intended to ensure compliance with the isolation requirements.

44 Mr Gallagher gave evidence that the defendant employed approximately 200 employees of which there were 15 to 16 operators plus maintenance employees working in the Port Macquarie area. Prosecutor's Submissions 45 The prosecutor has contended that the primary determinant of penalty in these proceedings is the objective seriousness of the offence: Fletcher Constructions Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66; Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 and WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited & Anor (No.2) (2000) 99 IR 163 46 As to the factors relevant to this assessment, it should be noted the maximum penalty applicable to these proceedings, noting the defendant's prior conviction, is $825,000: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610. General and specific deterrence ought feature in the assessment of penalty in these proceedings: see Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 and Capral Aluminium (at [73] - [77]). This is particularly so given the defendant conducts a large enterprise involving inherent risks to safety. 47 As to specific deterrence, the defendant had a positive obligation to inform itself as to matters of health and safety: WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Thora Saw Milling Pty Ltd (1995) 59 IR 89 at 100. The simple and straightforward remedial steps taken following the accident demonstrate the seriousness of the offence. The accident in this case could have been avoided by including a review of the proximity switches attached to the side door entrance, as part of the defendant's regular vehicular maintenance checks. 48 Whilst the consequences of a breach of the Act are not themselves determinative of penalty, that serious consequences have flowed from a breach of the Act may be relevant as a manifestation of the potential seriousness of the risk: Tyler v Sydney electricity (1993) 47 IR 1 at 5; Fletcher Constructions at 78, 80. The tragic fatality of Mr Young is demonstrative of the extremely serious nature of the risk, the subject of prosecution. Further, this risk was plainly foreseeable - indeed it was obvious. Mr Young, as part of his daily routine, was required to enter the compactor to clear out extraneous materials. That the risk is plainly foreseeable will necessarily result in the offence being more serious: Capral Aluminium (at [81] - [82]) and WorkCover authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and anor (2000) 95 IR 383. 49 As to the subjective features in favour of the defendant, the prosecutor contended that the plea of guilty was entered at an early stage: R v Thomson; R v Houlton (2000) 49 NSWLR 383, WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179. Leaving aside questions of utilitarian value, any leniency afforded the defendant for an early plea of guilty ought be considered in light of the strength of the case against the defendant: R v Winchester, R v Ellis (1986) 6 NSWLR 603, R v Carter [2001] NSWCCA 245 (at [13]). The defendant's capacity to pay is also a relevant consideration with regard to the imposition of a penalty: s6 Fines Act 1996.

50 Ms F Backman of counsel, who appeared for the prosecutor, sought costs for the proceedings.

Defendant's Submissions 51 Mr G Phillips of counsel, who appeared for the defendant, agreed that it was the nature and quality of an offence that was the primary determinant of penalty in these proceedings. In that regard, Mr Phillips emphasised that, whilst the defendant had pleaded guilty, the fundamental safety element to the system of work for cleaning the front compartment of the bulk head, as per the evidence of Mr Gallagher and Mr Hogan, was to ensure that the engine was off and the key to the vehicle was in the operator's pocket before entering the compactor chamber. If Mr Young had complied with this fundamental safety rule then the difficulty of the proximity switch being non-operational would not arise and the accident would have been averted. Further, Mr Phillips submitted that it was relevant to note that the truck under consideration, as with each of the defendant's collection of vehicles, did contain a proximity switch and had contained such a mechanism from the date of purchase. Had this switch been operational, it would have disengaged the compactor ram and made the accident impossible. 52 This was not a case where there was no safe system of work. Nor was it a case where there was a safe system of work which had been knowingly altered by the employer. The defendant recognised that it was guilty of the offence in that it should have detected the inoperable proximity switch. However, it was emphasised that this was not a case where there was no safety mechanism in place. Whilst Mr Phillips conceded that this was still a serious offence with tragic consequences, when assessing the objective seriousness of the offence for the purposes of determining sentence, it was important to recognise there were systems in place to ensure safety. Mr Hogan had repeatedly brought the proper procedure for entering the compactor chamber to the attention of the workforce and Mr Young, in particular, on at least one occasion. The defendant was unaware of the alterations to the proximity switch and, despite a significant investigation following the accident, has been unable to determine either when or by whom the proximity switch in the truck had been disengaged. Thus, this matter may be contrasted with cases where safety equipment, such as a guard, was simply not present on machinery or it had been removed. There was a failure to supervise in such a way as to detect the failure. The 'system of work' charges thereby arise in circumstances whereby the defendant did not have a knowledge of the system failure because it had been changed without the defendant's knowledge. 53 It was submitted that Mr Young was an experienced and conscientious worker. He was not a person who was relatively inexperienced or not aware of the safety procedures surrounding the operation of the vehicle. It was not submitted that this consideration exculpated the defendant from liability. Rather, it was a matter which went to the objective nature and seriousness of the offence. 54 Further, in mitigation, it was submitted the defendant had taken significant remedial steps to ensure that this accident could not happen again. The evidence of Messrs Richards, Gallagher and Hogan demonstrated the significant nature of the remedial changes both in terms of cost and their extent, made following the accident. Additional persons had been employed and there had been a significant amount of training provided to the present workforce. These remedial changes and, in particular, the integrated management system which the defendant introduced, demonstrated a significant cultural change within the operations of the defendant and significant alteration to the way in which the defendant carried out its business. 55 Whilst the defendant had expressed sincere contrition and regret for the accident, these, on Mr Phillips' submission, were not mere expressions of 'hollow sentiment'. This accident had a profound effect on this family company which was manifested in the strong actions taken by the defendant to both make itself aware of and to comply with the requirements of the Act. Indeed, on Mr Phillips' submission, the evidence showed the defendant had gone further than was probably necessary in that regard. 56 As to changes which would specifically prevent an accident of this nature reoccurring, the evidence of Mr Gallagher demonstrated the following steps had been taken:

The auto pack function has been disconnected from all the defendant's vehicles

Isolation switches have been fitted to the side entrance of all side lifting compactor units.

Pre-start and regular maintenance checks have been altered to include the safety switches

All drivers and maintenance personnel had undertaken induction training and training in safe procedures for entering the compactor units;

All drivers and maintenance personnel have been issued and instructed in the use of lock outs and tagging; and

signage reminding drivers and operators of appropriate procedures have been affixed to the truck as an additional precaution. 57 The defendant provided considerable assistance to Mr Young's family following the accident, including the continuation of Mr Young's salary for some time and paying for all funeral arrangements and other expenses associated with the administration of the deceased's estate. The assistance provided to the family had, as at the date of the hearing, been in the order of $20,000. 58 Finally, it was contended that the defendant was a medium sized company with a good history in relation to matters of occupational health and safety. Since its incorporation in 1963 it had one offence against its name, it was submitted, and that offence occurred in 1989. Good industrial citizenship was a matter relevant to the assessment of penalty in this case.

59 The defendant made no submissions in response to the prosecutor's application for costs. Consideration 60 As to the relevant general principles in this matter, I adopt what was stated in my recent decision in WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/as Stylewise Interiors (2002) 113 IR 78 (at [61] - [63]). 61 As was observed in Newstart 150, it is well settled that the objective assessment of the nature and seriousness of an offence is the primary determinant of penalty and in that respect, as was observed by Hungerford J in WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [43], the penalty imposed must be determined by reference to the offence.

62 In broad terms, the detriments to safety occasioned by the defendant in this matter arise, having regard to the particulars of the two charges brought under s15 of the Act, from a failure to provide and maintain such systems of work and information, training and supervision as would have ensured the health and safety of its employees when the clearing of the compactor section of garbage trucks was required. The risk to safety was that the compactor blade may operate whilst an employee was situated in the compactor department, thus resulting in fatal or very serious injury. Having regard to the evidence in this matter those failures may be refined, in the light of the charges, as constituting the following: 1. A failure to ensure that the proximity switch which was situated on the door of the vehicle was properly operating so as to ensure that the blade within the compactor could not operate when that door was opened (thereby preventing the operation of the unit if an employee was situated inside the compactor). This failure arose partly from a failure of the defendant to undertake an adequate maintenance system. Whilst general maintenance was conducted on the vehicle, there were no specific maintenance procedures or tests conducted to ensure the proper functioning of the proximity switch. Indeed, the defendant could not ascertain when or how the proximity switch ceased to operate on the subject vehicle. Further, and more generally, there was a failure to monitor and inspect safety systems so as to ensure they were fully functional. This failure was partly reflected in an inadequate system of driver maintenance (that is, requiring drivers to undertake a basic check of this kind) and from an inadequate system by management to ensure the systems of work (and maintenance) were "checked" by supervisory or other relevant personnel of the defendant. 2. There was inadequate training and supervision of employees. There was inadequate induction training. The deceased received no formal induction safety training. The extent of any formal safety training appears to have been the process of giving some drivers (including the deceased, but not for all drivers) a booklet entitled "training and safety manual" and then requiring them to witness the document. The evidence does not reveal whether this manual went specifically to the question of access to the compactor of the vehicle and safety measures required to be taken in those circumstances. However, the report by Hughes OHS and Risk Management Pty Limited (commissioned by the defendant) identified, as a possible failure by the defendant in the circumstances of the accident, a "failure to have a formal training programme to ensure the employee was aware of the hazards associated with his plant and the safe work systems required for its operation" and "a failure to provide information and training to employees in the hazard reporting system". This conforms with the particulars of the charge in Matter No. IRC319 of 2001.

63 The statement of agreed facts makes clear that neither the company director, Mr Richards, nor the Port Macquarie plant manager, Mr Hogan, could explain how the company satisfied itself that the recipients of the training manual read it and understood its contents and implications. There was an instruction given to the deceased not to carry out work in the rear of the vehicle whilst the engine was running (and with him having secured the keys in his pockets) on one occasion, but there was no other evidence of a system of supervision reinforcing these instructions. The statement of agreed facts indicated that prior to the accident, safe operating procedures did exist but did not form any part of the formal training given to drivers. It was stated that "some drivers were aware of it, others were not". It was also clear from the statement of agreed facts that the practice of working in the compactor section of the truck whilst the engine was running was reasonably common, with the deceased having undertaken the practice on numerous occasions and Mr Mackie and Mr Buekers undertaking the task in this manner. Despite the number of occasions that the deceased had performed work in this manner in the compactor, only one caution was recorded in relation to him.

64 Further, the actions which were taken by the defendant after the accident (as earlier described in this decision) were such as to reveal, in my view, in clear terms the decisive steps which may have been taken by the defendant to actually prevent the accident and thereby demonstrate the flaws which existed in the previous system: Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8 at 27 and WorkCover Authority of NSW (Inspector Barnard) v Rail Infrastructure Corporation (2001) 109 IR 209 at [93].

65 These considerations need to be assessed, however, in the light of the factors in mitigation raised by the defendant. Those factors were as follows: 1. The defendant had in place a safety system which was designed to ensure that employees who entered the compactor chamber did so without risk (that is, requiring the isolation of the compactor system by turning off the engine requiring the employees to hold the keys of the vehicle). 2. The deceased was an experienced employee who had specifically been given an instruction to follow that system. His adherence to the system would have protected him from injury. 3. The defective proximity system was an additional level of safety which was not necessary, of itself, to protect the deceased. Further, a system had been rendered inoperative by persons and in circumstances unknown to the defendant.

66 I consider that each one of these factors does mitigate the seriousness of the offence in this matter. The existence of a settled safety procedure and instructions is a factor which may mitigate the seriousness of an offence under the Act: see Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 342; WorkCover Authority of New South Wales (Insp. Riley) v Broken Hill Proprietary Co Ltd (1998) 83 IR 427 at 429; Department of Mineral Resources (Insp. McKensey) v Kembla Coal at 25 and WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited (2000) 100 IR 23 (at [33]).

67 Further, the existence of a system which, if adhered to, would have prevented the accident is also a factor relevant to mitigation: WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383 at 448. However, the significance of these factors in mitigation is reduced having regard to the following considerations: 1. The obligations of an employer under the Act are not diminished because of the error or negligence of an employee although such matters may reflect the degree of culpability of the employer: Riley v Australian Grader Hire Pty Limited (2000) 103 IR 143 at 145 - 146. 2. In this case, this consideration is particularly significant because the system, such as it was, was entirely informal and not buttressed by measures as would have ensured an adherence to it. There was an absence of sufficient training, instruction and supervision as would have ensured compliance with the system. I also note, in this respect, the earlier mentioned 'key issues' as to safety in the defendant's operations identified by Mr Gallagher after the accident. 3. This is not a case where the employee has disregarded the requirements to use a piece of safety equipment or caused some safety device to be rendered inoperative. There was a failure to adhere to an oral instruction which was given, on the evidence, on one occasion to the deceased. Thus, the training charge is significant because it is a requirement that employers ensure, by such training, that employees are informed of the systems operated by the employer and given proper instruction on the safe means of carrying out the full range of tasks: Newstart at [89]. 4. Further, the system was defective in its failure to ensure that safety systems on the vehicle were maintained in a fully functional condition. Mr Phillips did point, correctly in my view, to the fact that the proximity system was, as it were, an additional layer of safety. However, it was not enough for the system to rely entirely upon verbal (and largely ad hoc ) instruction given to the employees of the defendant. This goes to the question of training and fully effective instruction and also the failure to maintain the proximity switch. It was essential that the system had multiple levels of safety, having regard to the nature of the risks inherent in the performance of work in the compactor compartment: see Kembla Coal and Coke at 26 and WorkCover Authority of NSW (Inspector Robins) v Ecolab Pty Limited (1999) 90 IR 413. 5. The fact that the defendant was unaware that the proximity switch had been tampered with is a factor which only mildly diminishes the seriousness of the offence. Rather, this consideration points to the absence of an adequate system to detect failures in the safety systems. The same failure of detection could have operated to similar adverse effect where the non-functioning safety system arose from a simple malfunction.

68 There are some further factors relevant to the consideration of the seriousness of the offence as follows: 1. Simple and straightforward steps were available to prevent the risk to safety. This conclusion is available having regard to the steps taken by the defendant after the accident. 2. The risk was reasonably foreseeable, at least to the extent that an inadequate system of maintenance might result in a failure to detect a non-operative safety system on the defendant's vehicles. 3. Whilst the gravity of the consequences of an accident do not, of themselves, dictate the seriousness of the offence, the consequences of an accident that flows from a breach of the Act may be relevant, as in this matter, as a manifestation of the gravity of the potential risk to safety flowing from the breach and the culpability of the defendant: Newstart at [95].

69 Further, the prosecutor submitted that both general and specific deterrence ought feature in the assessment of penalty. The defendant put no contrary submission. The appropriate manner for the Court to approach the deterrent aspect of imposing a sentence was settled in Capral Aluminium at [71] - [80]. In accordance with the principles there set out, I shall take into account both elements of deterrence in the assessment of penalty in this matter. In particular, I note, with respect to specific deterrence, the defendant continues to be a substantial employer using garbage trucks in the waste disposal industry.

70 Having regard to the entirety of these circumstances, I consider that the offence is a serious one.

71 I shall now turn to the remaining subjective features. In this respect, I should note at the outset that I consider that the defendant should receive a considerable discount arising from subjective features of this matter. Whilst there are a number of factors which bear upon this consideration, I would mention that the defendant has gone to quite considerable lengths to modify its occupational health and safety systems following the accident. This required not only a reconsideration of its operational and safety systems, but the expenditure of considerable resources to this end. The extent to which the defendant went to reconstruct these systems is, in my view, very commendable.

72 In addition to these considerations, I have taken into account the following subjective factors in allowing a considerable discount for the subjective features: 1. The plea of guilty was entered at the earliest reasonable opportunity. 2. The defendant expressed contrition, repentance and remorse after the accident. 3. The defendant fully co-operated with the prosecutor in its investigations. 4. The defendant introduced significant changes in its operations to prevent an incident of this nature reoccurring at the workplace. 5. The defendant provided considerable personal and financial assistance to the deceased's family after the accident. It also provided assistance to other workers engaged at the workplace. 6. Having regard to the size of the business and the prior record of the defendant, I consider that, on balance, the defendant should be taken as having a good record and having demonstrated good industrial citizenship.

73 Having regard to these subjective features and applying the principles in R v Thomson, I consider the discount of 35% should be allowed for the entirety of the subjective features.

74 The defendant has pleaded guilty. I consider that the plea was properly entered. For the foregoing reasons, I consider, after the discount for the subjective factors earlier identified and having regard to mitigating features going to the objective seriousness of the offence, as earlier discussed, an appropriate penalty with regard to the offence, as charged, to be a fine of $155,000. The prosecutor should have a moity of the fine.

75 I make the following orders: 1. The defendant is fined an amount of $155,000 with a moity thereof to the prosecutor. 2. The defendant is to pay the prosecutor's costs. 3. The parties are to file short minutes setting out the appropriate order for the Court in relation to the quantum of costs in these proceedings within 21 days.

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