WorkCover Authority of New South Wales (Inspector Thomas Clark) v Ledonne Constructions Pty Limited

PROSECUTOR: Mr J J Millar of counsel Solicitor: Mr S Pertsinidis WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr T J Clarke of counsel Solicitor: Mr S Roulstone Keddies Solicitors

JUDGMENT: - 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 2 November, 2001

Matter No IRC 3394 of 1998 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CLARK) v LEDONNE CONSTRUCTIONS PTY LIMITED Prosecution under s 15 of the Occupational Health and Safety Act 1983

Matter No IRC 3396 of 1998 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CLARK) v LEDONNE CONSTRUCTIONS PTY LIMITED Prosecution under s 15 of the Occupational Health and Safety Act 1983

Matter No IRC 3398 of 1998 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CLARK) v LEDONNE CONSTRUCTIONS PTY LIMITED Prosecution under s 16 of the Occupational Health and Safety Act 1983 JUDGMENT

1 These are prosecutions by Thomas Clark, as an inspector of the WorkCover Authority of New South Wales, of Ledonne Constructions Pty Limited ("Ledonne") for breaches of s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. The sub-sections state: 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. 2 Sydney Water Corporation ("SWC") carried on the principal activity of the provision of water, wastewater and stormwater drainage services. SWC owned and operated two large reservoirs at premises known as Mt Keira Reservoir, Mt Keira. On about 5 February 1996, SWC entered into a contract with Ledonne to construct a booster pumping station on the Mt Keira Reservoir inlet main, including associated pipe work, valves and control systems. Ledonne was the principal contractor on the site and had engaged Raymond John Jabboury as project manager. Ledonne employed a trades assistant, Geoffrey Gordon Rowling.

3 Australian Water Technologies Pty Ltd ("AWT") was a wholly owned subsidiary of SWC. AWT was contracted by Ledonne to supply and install pipe work, valves and ventilation, install pumps at the pumping station, supply and install roof covers and ladders to all chambers, welding connections to reservoirs and pipe work to mains and testing of all pipe work and pumps at the reservoir site for the project.

4 Waycon Services Pty Ltd was a labour hire company contracted by AWT to supply labour to the construction site. Waycon employed a fitter, John Watson.

5 On 25 June 1996 Malcolm Dewar, an employee of AWT, died inside a 500 mm diameter main pipe when he entered the pipe at the reservoir site, the pipe filled with water and he drowned. In this regard, the agreed statement of facts tendered in the proceedings stated: About 10.20 am on Tuesday 25 June, 1996 Malcolm Dewar died by drowning inside a 500 mm-watermain pipe when the pipe filled with water. Minutes prior to his death, Dewar had entered a concrete inspection pit and climbed approximately 2.4 metres inside an open outlet pipe attached to the inside of the concrete pit. Whilst Dewar was conducting an inspection inside the pipe to ascertain where the pipe had previously been leaking, the gate valve and flanged connector assembly (connected to the inlet pipe) located inside the inspection pit, dislodged from the inlet pipe. The valve and connector assembly failed due to the force of the water inside the inlet pipe (coming from the reservoir) pushing against the gate valve. Both the concrete inspection pit and the outlet pipe filled with water within approximately 10 seconds. 6 Charges against SWC and AWT in relation to the incident have been the subject of proceedings before this Court and penalties have been imposed: WorkCover Authority of NSW v Sydney Water Corporation Ltd [2001] NSWIRComm 240. Mr Jabboury has been found guilty of an offence under s 16(2) of the Act (WorkCover Authority of NSW v Jabboury [2001] NSWIRComm 78) and a hearing date has been set in relation to penalty.

7 Ledonne was initially charged with five offences. However, two charges were withdrawn and Ledonne pleaded guilty to the remaining three. The charges were as follows: Matter No IRC98/3394

On the 25 June 1996 at Mount Keira Reservoir, Mount Keira, New South Wales, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all its employees and in particular Geoffrey Rowling contrary to Section 15(1) of the Occupational Health and Safety Act, 1983, in such case made and provided in that the defendant failed to provide or maintain systems of work that were safe and without risks to health.

The Particulars of the charge are: 1. At all material times the defendant was an employer.

2. It is alleged that the defendant had breached Section 15(1) of the Occupational Health and Safety Act 1983 on 25 June 1996 at Mount Keira Reservoir, Mount Keira, New South Wales in that being an employer, it failed to ensure the health, safety and welfare at work of all it's employees, and in particular Geoffrey Rowling in that it failed to provide or maintain systems of work that were safe and without risks to health. In particular it failed: a. to ensure the effective isolation of water at Inspection Pit No. 7 at the said site, whilst persons were carrying out work inside the inspection pit and outlet pipe.

b. to ensure that a risk assessment was undertaken of the Mount Keira Reservoir Contract Project No. 12239 to identify any confined spaces on the project and the hazards associated with working in those confined spaces.

c. to ensure that work carried out in confined spaces was being carried out in accordance with the requirements and procedures set out in Australian Standard AS 2865-1986 ('Safe Working in Confined Space') called up by Clause 5 of the Occupational Health and Safety (Confined Spaces) Regulation 1990. 3. As a result of the defendant's failure Geoffrey Rowling was placed at risk to his health and safety. Matter No IRC98/3396

On the 25 June 1996 at Mount Keira Reservoir, Mount Keira, New South Wales, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all its employees and in particular Geoffrey Rowling contrary to Section 15(1) of the Occupational Health and Safety Act, 1983, in such case made and provided in that the defendant failed to provide such supervision as may be necessary to ensure the health and safety at work of it's employees. The Particulars of the charge are: 1. At all material times the defendant was an employer.

2. It is alleged that the defendant had breached Section 15(1) of the Occupational Health and Safety Act 1983 on 25 June 1996 at Mount Keira Reservoir, Mount Keira, New South Wales in that being an employer, it failed to ensure the health, safety and welfare at work of all it's employees, and in particular Geoffrey Rowling in that it failed to provide such supervision as may be necessary to ensure the health and safety at work of it's employees. In particular it failed to ensure that persons carrying out work in confined spaces did so in accordance with the requirements and procedures set out in Australian Standard AS 2865-1986 ('Safe Working in Confined Space') called up by Clause 5 of the Occupational Health and Safety (Confined Spaces) Regulation 1990.

3. As a result of the defendant's failure Geoffrey Rowling was placed at risk to his health and safety.

The defendant, being an employer, on the 25 June 1996 at the Mount Keira Reservoir, Mount Keira, New South Wales, DID FAIL to ensure that persons not in its employment and in particular Malcolm Dewar and John Watson were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work contrary to Section 16(1) of the Occupational Health and Safety Act, 1983 in such case made and provided.

The Particulars of the charge are: 1. The defendant was at all material times an employer. 2. It is alleged that the defendant has breached Section 16(1) of the Occupational Health and Safety Act 1983 on 25 June 1996 at Mount Keira Reservoir, Mount Keira, New South Wales in that being an employer, it failed to ensure that persons not in its employment, and in particular, Malcolm Dewar and John Watson, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, and in particular: a. the defendant failed to provide or maintain systems of work to ensure the effective isolation of water at Inspection Pit No. 7 at the said site, whilst persons were carrying out work inside the inspection pit and outlet pipe, so that the work carried out at the said site was safe and without risks to health. b. the defendant failed to provide or maintain systems of work to ensure that a risk assessment was undertaken of the Mount Keira Reservoir Contract Project No. 12239 to identify any confined spaces on the project and the hazards associated with working in those confined spaces. c. the defendant failed to provide or maintain means of access to and egress from Inspection Pit No.7 at the said site, which was safe and without risks to health. d. the defendant failed to adequately supervise or monitor work carried out at the said site so as to ensure that work in confined spaces was being carried out in accordance with the requirements and procedures set out in Australian Standard AS 2865-1986 ('Safe Working in a Confined Space') called up by Clause 5 of the Occupational Health and Safety (Confined Spaces) Regulation, 1990. e. the defendant failed to ensure that persons entering confined spaces, had been provided with appropriate training and had the knowledge and skills necessary to enter confined spaces. f. the defendant failed to ensure that all persons not in it's employment working at the said site, were aware of and had read and understood the contents of 'Sydney Water's Instruction 800' regarding 'Safe Entry and Working in Confined Spaces'. 3. As a result of the defendant's failure, Malcolm Dewar drowned and John Watson was placed at risk of (sic) to his health and safety.

8 The circumstances surrounding the incident that led to these proceedings are described in the agreed statement of facts: 13. On the afternoon of 24 June, 1996, employees of Ledonne had identified two leaks when they conducted a pressure test of the water line after having constructed the concrete inspection pit (Pit No.7) and laid new pipes. One of the leaks was identified as having come from a straub coupling inside the inspection pit. The second leak, which was of more concern, was a leak coming from an underground pipe approximately five metres from the inspection pit in the location of a 45 degree bend in the watermain. 14. A discussion took place between the employees and project manager of Ledonne, Raymond Jabboury, concerning the method they would use to locate the leak and repair it. It was suggested by Rowling that they gain access into the pipe by removing the straub coupling on the spigot section in the inspection pit and then remove the plain to flange spigot section which was attached to the outlet pipe and gate valve. They could then gain access inside the pipe to establish the location of the leak and develop a method of repair. It was decided to commence the work the next day. 15. Malcolm Dewar was not at work on 24 June 1996, having been ill. On the day of the accident (25 June, 1996) Malcolm Dewar telephoned his employer to inform it that he would be late in attending work that day. About 8.15am that day, Michael Kenney (a mechanical fitter employed by A.W.T. as a leading hand) and John Watson (a fitter employed by Waycon) gained access to the inspection pit by placing their foot on the gate valve and jumping down to the floor of the pit. The men were to remove the straub coupling on the spigot section and then remove the plain to flange spigot section. Realising they had the wrong size spanners, both exited the pit and went to the Pump Station at Mount Keira (Located at Millbrook Estate approximately a 5 minute drive from the reservoir site) to obtain the correct equipment. Whilst at the Pump Station, Kenney informed Watson that Ledonne employees were ready at the reservoir site and requested him to return to the inspection pit with the tools and remove the straub coupling and plain to flange spigot section. 17. At about 9am, Dewar arrived for work at the Mount Keira Pump Station on the Millbrook Estate. Watson approached Dewar at the Pump Station and requested a lift to the reservoir site and asked Dewar to assist him in the inspection pit. 18.When they arrived at the reservoir site, both Dewar and Watson entered the inspection pit by stepping on the top of the gate valve. The bypass elbow (a pressure release valve to enable operation of the main gate valve) had been disconnected from the plain to flange spigot section. Watson removed the straub coupling and then with the assistance of Dewar, both men removed the flange bolts attached to the spigot section and gate valve. They left two bolts in position at ten o'clock and two o'clock on the valve until an excavator could assist in pulling the spigot section out of the pit. 19. Approximately 5 metres from where they were working in the pit, Mark McCarron (a pipe layer machine operator employed by Ledonne) was operating an excavator with a hydraulic hammer attachment, hammering the top of the anchor of the 45-degree bend. Dewar climbed out of the pit by climbing on the gate valve and asked McCarron to remove the spigot section from the pit. A sling was attached to the spigot inside the pit and McCarron lifted the plain to flange spigot out of the pit using the excavator. Watson climbed out of the pit by climbing on the gate valve and removed the D shackle and sling off the spigot. Watson then left the inspection pit area for a short time. 20. After removal of the spigot, Geoff Rowling entered the outlet pipe by climbing through the pipe a distance of about two metres. He was inside the pipe for approximately 2 minutes inspecting a rubber ring between connecting pipes to see if it was causing the leak. During this time, Dewar was standing on the floor of the inspection pit. Rowling exited the pipe and Dewar then entered the outlet pipe whilst Rowling remained on the floor of the inspection pit. Dewar had been inside the pipe for about two minutes, when the water pressure caused the gate valve and flange connector assembly (which weighed approximately 840 Kgs) to break away from the inlet pipe. The inspection pit flooded with water in approximately 10 seconds and Rowling floated to the surface of the pit where he shouted for help. 21.Dewar was not wearing a safety harness or any other safety equipment at the time and was forced further into the pipe by the pressure of the water.

9 The agreed statement of facts also relevantly stated that:

1. Immediately after the accident employees of Ledonne and Waycon attempted to isolate the water running into the pit and outlet pipe but lacked instruction on how to do so. An employee of SWC arrived on site some 15 minutes after the accident and was able to stop the flow of water. 2) No means of safely isolating the water prior to commencing work in the confined space of the pit and outlet pipe was utilized. 3) There was no access ladder for persons to enter the pit. 4) The 500mm x 450mm diameter pipe connector was attached to the gate valve by means of bolts and the other end of the connector (although not fitted) is connected by means of a rubber type seal. No seal was located at the time of inspection of the accident scene by Inspector Clark. 5) No system was implemented by SWC, AWT, Ledonne or Raymond Jabboury to ensure that persons having cause to enter the water main had received appropriate training and held the necessary certification to carry out work in confined spaces. The contract for the project provided that it was Ledonne's responsibility to provide equipment, training, personnel and documentation necessary to satisfy the safety requirements set out in the contract. 6) Prior to the events of 25 June 1996 no inquiry was made by Ledonne of its employees or contractor's employees at the reservoir site concerning their training in confined spaces. Investigations revealed that Malcolm Dewar had received such training, Geoffrey Rowling had done "some confined space training" about two years prior to the accident but he did not complete the training and he was not aware of what constituted a confined space, John Watson and Raymond Jabboury had no confined space training. 7) The factors contributing to the accident included: a. Flaws in the procedure to isolate water at the reservoir site and the absence on site of any person with the necessary knowledge to isolate the water. b. The rubber ring joint joining the inlet pipe to the flanged connector was designed to join the pipe work and not to carry a load along the longitudinal axis of the pipeline. c. SWC, AWT, Ledonne and Jabboury failed to comply with the requirements of the Occupational Health and Safety (Confined Spaces) Regulation 1990 and Australian Standard AS 2865-1986 cited by the Regulation. d. The Contract for the project did not identify the areas of the reservoir site that would be classified as a confined space. e. Despite written instructions, no system of audit was in place to ensure that those instructions were carried out. No competent person(s) was nominated by SWC to ensure the procedures were reviewed and approved to ensure the level of safety required. No audit was carried out to ensure that the contractors and their employees had received the relevant training and skills to carry out work in confined spaces. f. There was no proper access to or egress from the inspection pit. g. Adequate supervision was not provided by SWC, AWT or Ledonne to ensure a safe system was in place when employees were required to carry out work in confined spaces. There was no work contracted to Ledonne requiring Ledonne's employees to work within confined spaces. The Verdict 10 After reviewing the agreed facts and in light of the charges and the particulars thereof, I am satisfied that the offences have been proven. The pleas of guilty by the defendant were properly made and I enter verdicts accordingly.

Evidence for the prosecution 11 The evidence for the prosecutor included the statement of agreed facts, and a copy of Australian Standard AS 2865-1986 'Safe Working in a Confined Space'. Ledonne had no prior convictions under the Occupational Health and Safety Act 1983.

Evidence for the Defendant 12 Mr Antonio Ledonne, the managing director of the defendant, was called to give evidence. His evidence may be relevantly summarised as follows:

1. Ledonne is a family business engaged in pipe laying and sewerage work. 2) Ledonne contracted Mr Jabboury to manage the project of constructing the booster station at Mount Keira and relied on Mr Jabboury to ensure the safety of employees. Mr Ledonne was not on site at the time of the accident. 3) The "safety protocol" relied upon by Ledonne was based on the notion that "if you had good men who are experienced and who are directed properly then they would not injure themselves". 4) Since the accident Ledonne has introduced new safety measures including: work method statements; safety induction programs; an incident management plan; a job safety analysis; pre-start safety meetings; operator safety checklists; safety procedures relating to working in confined space; safety training programs. 5) The death of Mr Dewar came as a great shock and Mr Ledonne was still suffering from that shock. 6) Mr Ledonne agreed in cross-examination that Mr Jabboury should have known what were the safety requirements for working in confined spaces but Mr Ledonne did not know whether Mr Jabboury had that knowledge. 7) Mr Ledonne agreed in cross-examination that Mr Jabboury had not had any confined space training. 8) Mr Ledonne agreed in cross-examination that an inspection pit "could be a confined space if the valve was removed from the pipe but the line was live with water". 9) Mr Ledonne did not expect that his employees would be involved in working in confined spaces on the Mount Keira project. 10) Mr Ledonne could not explain why one of his employees, Mr Rowling, would have proposed that in order to fix the leaking pipe that he crawl inside the pipe. Submissions for the prosecution 13 Mr J J Millar of counsel appeared for the prosecutor. It was Mr Millar's submission that despite the fact that Ledonne had sub-contracted AWT to do certain work on the project, Ledonne could not transfer its responsibilities regarding safety to AWT. It was submitted that it was inevitable that at some point in the project, workers would be required to work in confined spaces. Despite that, the defendant put in charge of the project a person who had no confined space training at all. Mr Millar submitted that it was a serious failure on the defendant's part to appoint a project manager who lacked the necessary training. Moreover, it was submitted, no enquiry was made of Mr Jabboury as to whether he had undertaken confined space training.

14 Mr Millar submitted that it must be a matter of concern that it was the defendant's own employee, Mr Rowling, who suggested crawling inside the pipe to fix the leak and he was not prevented by the defendant's principal representative on the site and the person in charge of the project, Mr Jabboury, from doing so. Mr Millar submitted that if Mr Jabboury had been alive to the safety issues that might arise in the course of carrying out work on the project the risks created could have been avoided.

15 It was submitted that although the defendant had pleaded guilty and was entitled to the benefit of such a plea, it was entered in circumstances where there was no real prospect of successfully defending the charge.

Submissions for the defendant 16 Mr T J Clarke of counsel appeared for the defendant. Mr Clarke submitted that the defendant had operated for many years without a safety incident and had no prior convictions. Mr Ledonne had recognised the inadequacy of the defendant's "safety protocols" and had introduced a range of new safety measures after the incident on 25 June 1996. Mr Ledonne had relied on Mr Jabboury and the skill and experience of the defendant's employees to ensure that safety was maintained. The defendant had expressed contrition for what had occurred and had entered a plea of guilty. Mr Clarke sought time to pay any penalty the Court might impose.

Consideration 17 As Wright J, President observed recently in WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 at 268, "The principles to be applied in sentencing under the Occupational Health and Safety legislation are settled". The primary factor to be considered in determining the appropriate sentence is the objective seriousness of the offence charged. Subjective matters, such as the absence of prior convictions, rank well behind considerations as to the nature and quality of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 472-475; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [53]; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd [No 2] (2000) 99 IR 163 at [22] and [23].

18 In considering the objective seriousness of the offences, the evidence was that the defendant:

· Had contracted Mr Jabboury to manage the project of constructing the booster station at Mount Keira and relied on Mr Jabboury to ensure the safety of employees. The defendant was aware that Mr Jabboury had no training in relation to working in confined spaces. The defendant did not know and did not inquire as to whether Mr Jabboury had knowledge of the contractual obligations on the defendant regarding the requirements for working in confined spaces. · Did not carry out any risk assessment of the Mount Keira Reservoir Contract Project No. 12239 to identify any confined spaces on the project and the hazards associated with working in those confined spaces. · Relied almost exclusively on its employees' training and experience to maintain safety yet did nothing to ensure that employees had undertaken safety training in relation to working in confined spaces. · Failed to ensure that employees were familiar with the safety requirements for working in confined spaces. · Failed to take proper steps to prevent persons entering Inspection Pit No. 7 and the outlet pipe in circumstances where the water had not been effectively isolated and failed to give any consideration to the safety requirements for working in the Pit and outlet pipe. · Failed to provide adequate supervision of dangerous work in confined spaces. · Failed to follow the written safety procedures laid down in the contract with SWC.

19 The reality in this case was that the defendant had virtually no system in place for ensuring the health and safety of employees or any other persons in circumstances where they might perform work in confined spaces. The managing director of the defendant frankly admitted that, in effect, he relied on his employees to look after their own safety. There was, in my opinion, a most regrettable, and ultimately tragic, absence of safety consciousness on the part of the defendant.

20 It was submitted for the defendant that no attention was given to the safety requirements for working in confined spaces because there was no expectation that employees or other persons would be required to work in confined spaces. That employees and other persons might work in an inspection pit in circumstances where it could be regarded as a confined space, or enter a water main pipe during the course of work on the project and become subject to risks was, in my opinion, entirely foreseeable, not only because of the general nature of the work being carried out by the defendant of laying pipes, constructing pits and connecting valves and fittings but also in the manner described by the Court in WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78, as follows: … A leak had developed in the pipe near the Inspection Pit; it was the defendant's responsibility, as part of his undertaking, to have the leak repaired. The defendant had a concern about ensuring the seal where the leak had occurred was made good. He listened to advice from either Mr McDonald on the defendant's evidence, or Mr Rowling on Mr Rowling's evidence, about how the leak might be repaired and, at least in the defendant's mind, had not discounted the idea of someone going into the outlet pipe to ensure the seal had been made good. Indeed, he thought it was a good idea. The only way to do that would be to enter the outlet pipe through the entrance to it in the Pit, once the straub coupling and spigot valve connector had been removed. The defendant did indicate, in the presence of Mr McDonald and Mr Rowling, that he wanted the concrete cleared from around the leaking pipe but, critically, he did not go on to give instructions that there was to be no attempt to enter the outlet pipe to check on the seal where the leak occurred, or alternatively, did not make it clear to Mr McDonald or Mr Rowling that before entering the Pit and the outlet pipe, there were extensive safety precautions that had to be undertaken. 27 Even if I accept the defendant's evidence that he was not aware that anyone would seek to enter the outlet pipe on 25 June 1996 and that his expectation was that the work to be done involved clearing the concrete from the leaking pipe, the inference I am able to draw from the evidence is that Mr Rowling was left with the reasonable impression that either there was no objection to the proposal, or that there was tacit approval of the proposal, that as part of the procedure for repairing the leak, there should be an internal inspection of the pipe to check on whether the seal had been made good and that he proceeded to embark on that course of action the following day. The alternative inference that may be drawn from the evidence is that the defendant was aware that Mr Rowling intended to do what he proposed, that is, to enter the pipe to apply soap to the rubber ring and either expressly endorsed it or acquiesced in the proposal.

28 On the basis of either inference the evidence shows, in my opinion, that a risk arose from the conduct of the defendant's undertaking by virtue of the fact that in repairing the leaking pipe, persons not employed by the defendant entered Inspection Pit No. 7 and the outlet pipe leading from it in circumstances where there was a risk of serious injury or death. I find that, on the basis of the first inference I referred to, the relevant detriment to safety was the presence of persons, not employed by the defendant, in the Inspection Pit and outlet pipe in circumstances where there was a risk of serious injury or death caused by inundation. The other risk to safety arose out of the fact that the Inspection Pit was 3 metres deep and that there was no ladder in the Pit to assist in gaining access to or egress from the Pit. In the absence of a ladder there was a risk that persons may fall while getting into or out of the Pit. 29 The fact that the defendant gave instructions on 24 June that the work to be done the following day was to clear the concrete from around the leaking pipe, did not carry with it an unambiguous implication that no attempt should be made to enter the outlet pipe. Mr Rowling obviously saw the removal of the concrete and entry into the pipe as part of the one operation to repair the leak. Absent any instruction not to enter the pipe there was no work-related reason why the straub coupling and spigot valve connector could not have been removed and an internal inspection carried out of the site of the leak while the concrete was being cleared. Of course, what Mr Rowling overlooked, as did the defendant, were the risks associated with doing so. In fact, the defendant candidly admitted in his evidence that, following the discussion with Mr Rowling on 24 June about the prospects of an internal inspection, he gave no further thought to questions of safety; he gave no thought to the prospect of Mr Rowling and others doing what they did in entering the Inspection Pit and outlet pipe and being exposed to the risk of inundation by whatever means that might occur. Given his conversation with Mr Rowling it was reasonably foreseeable on the defendant's part that, in the absence of an express direction to the contrary, Mr Rowling might well do what he proposed and that if he did, he would be at risk unless measures were taken to ensure the safety of Mr Rowling and others.

21 The Court is unable to come to any conclusion other than that the offences were serious. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence or the amount of penalty but the occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Capral Aluminium at [94]-[95]. It is plain in this case, involving as it did a death, that the consequences of the breaches of the Act were very serious.

22 I note the defendant's previous good record, the hazardous nature of the industry in which the defendant operates and the fact that the defendant has taken measures to improve its occupational health and safety regime. However, both general and specific deterrence should feature in the assessment of penalty in this matter: Capral Aluminium at [73]- [74]. In my opinion, there is a clear need in this case to compel the defendant's attention to "occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388. Moreover, as Walton J, Vice President observed in WorkCover Authority of New South Wales (Inspector Lyons) v Warman International Limited (2001) 105 IR 236 at [80]: 80 In my view, and having regard to the principles of sentencing in Capral , specific deterrence should feature in the assessment of penalty in this matter. The defendant has conceded that it was unaware of, and had taken no steps to, assess the risks to safety of employees engaged in the process giving rise to the incident. It is necessary, in these circumstances, to ensure a sufficient level of diligence in the defendant searching for, identifying and removing risks to safety (even where the work to be undertaken does not form part of the defendant's ordinary work practices). This will be so in a hazardous industry, although regard needs to be paid, as noted in Capral , to the particular circumstances of the offence and the offender. 23 In considering the subjective factors, Ledonne has entered pleas of guilty (although I note, not early pleas) and based on utilitarian considerations is entitled to a discount on the sentence in the range of 10 to 25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104. The defendant is also entitled to have taken into account the measures taken to improve safety after the incident on 25 June 1996 and the good safety record up to the time of the incident.

24 As to the matter of contrition, in R v Winchester (1992) 58 A Crim R 345 Hunt CJ at CL said at 350: "A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p 12.

25 In Thomson & Ors, Spigelman CJ approved this statement in Winchester and added that a "recognition of the inevitable" may qualify the extent of genuine contrition but does not qualify the utilitarian value of a plea: 49 NSWLR at 416. I agree with Mr Millar that there was no real prospect of successfully defending the charge and any discount for contrition should not be significant.

26 There were no submissions relating to the capacity of the defendant to pay any fine that might be imposed other than a request for time to pay.

27 Neither the prosecutor nor the defendant made submissions relating to the questions of parity and consistency, perhaps understandably so given that no judgment on penalty had been issued in WorkCover Authority of NSW (Inspector Clark) v Sydney Water Corporation Ltd. However, it was also the case that no submissions were made on the question of totality. Nevertheless, I think it is necessary for me to address these issues.

28 In WorkCover Authority of NSW (Inspector Clark) v Sydney Water Corporation Ltd which related to the same incident that is presently before me, SWC was charged under s 16(1) of the Act and AWT was charged under s 15(1). A penalty of $150,000 was imposed on SWC, it being noted that the maximum penalty was $750,000. AWT was fined $112,500 on the basis of a maximum penalty of $500,000. In the present proceedings, the defendant was charged with two offences under s 15(1) and one offence under s 16(1) with a maximum penalty of $500,000 for each offence.

29 The questions of parity and consistency were discussed in some detail in Capral Aluminium at [61]-[66]: Questions of parity or consistency in sentencing under the Act

61 The appellant submits that the sentence in this matter involves a significant disparity with other sentences imposed under the present form of the Act. It submits that Hungerford J erroneously exercised his discretion in failing to, or failing to correctly, apply the principles of parity. It is submitted that it is the responsibility of this appellate bench to correct a sentence which is out of line with the commonly accepted sentence pattern: see R v Visconti [1982] 2 NSWLR 104 at 108. In support of its submissions the appellant has provided a schedule of recent judgments and the penalties imposed thereby. The schedule initially filed was amended at the hearing.

62 It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and IRC98/1106, 4 February 2000 at 103): Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen " where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 … 63 When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said, at 371: It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: "The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty." 64 In Channon v The Queen (1978) 20 ALR 1 at 18, Deane J observed: In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances. 65 As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10.

66 The principle of consistency is relevant to this appeal, as it is a reflection of the notion of equal justice, a fundamental element in any rational and fair system of criminal justice. See for example R v Henry (1999) 46 NSWLR 346 at 353 where Spigelman CJ said: 12. As I indicated in Jurisic , the purpose of a guideline judgment is to foster consistency in sentencing. The importance of consistency was well expressed by Mason J in R v Lowe (1994) 154 CLR 606 at 610 - 611: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice." and see also R v Howland at 43 - 44 per Spigelman CJ.

30 There is also the question of totality, which was considered recently by a Full Bench of the Commission in Court Session (Wright J, President, Walton J, Vice President, Hungerford J) in Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 at 192-197; [2001] NSWIRComm 106 at [21]-[38]: 36 This review of the authorities establishes that in determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court should then consider what the appropriate penalty should be by applying the principle of totality. Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. The principle must also be applied for the reasons stated in Pearce and Mill .

37 We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate. 31 In considering a just and appropriate penalty in this case I have considered the objective seriousness of the offences; subjective factors including a plea of guilty, contrition, the defendant's previous good record and measures taken by the defendant to improve health and safety and avoid future risks to employees and other persons and the need for parity and consistency in sentencing. I find as follows: Matter No IRC98/3394

I consider an appropriate penalty to be $150,000. As to the utilitarian value of the plea of guilty I allow 12.5 per cent discount upon the penalty and in respect of contrition, the defendant's previous good record and the measures taken after the incident to ensure the health and safety of employees and other persons, I allow a further 12.5 per cent.

I consider an appropriate penalty to be $80,000. As to the utilitarian value of the plea of guilty I allow 12.5 per cent discount upon the penalty and in respect of contrition, the defendant's previous good record and the measures taken after the incident to ensure the health and safety of employees and other persons, I allow a further 12.5 per cent.

I consider an appropriate penalty to be $160,000. As to the utilitarian value of the plea of guilty I allow 12.5 per cent discount upon the penalty and in respect of contrition, the defendant's previous good record and the measures taken after the incident to ensure the health and safety of employees and other persons, I allow a further 12.5 per cent. 32 On the basis of the foregoing, the total penalty would be $292,500. However, there is a very considerable overlap in the failures charged in the three offences. Applying the totality principle, I consider that the total fine should be $180,000 with the penalty for each offence being: Matter No. 98/3394: $68,400

Matter No. 98/3398: $73,800 Orders 33 The Court makes the following orders: 1) The offences are proven and verdicts of guilty entered 2) The defendant is convicted of the offences as charged. 34 The following fines are imposed on the defendant with a moiety in each case to the prosecutor: a. As to Matter No. 98/3394: $68,400 b. As to Matter No. 98/3396: $37,800 c. As to Matter No. 98/3398: $73,800

35 I do not determine the application for time to pay. I consider the parties should discuss this matter and if possible agree. In default of agreement the matter may be restored to the list upon the application of either party upon reasonable notice. 36 The defendant shall pay the prosecutor's costs as agreed, or in default of agreement, as assessed. In default of assessment and agreement the matter may similarly be restored to the list.

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