WorkCover Authority of New South Wales (Inspector Templeton) v Lewington's

JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Tuesday 23 November 2004

Matter No IRC 5461 of 2003 INSPECTOR AMANDA TEMPLETON v LEWINGTON'S (LIVESTOCK) PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2004] NSWIRComm 350

1 These proceedings concern a prosecution brought by Inspector Templeton of the WorkCover Authority of New South Wales against the defendant, Lewington's (Livestock) Pty Ltd, alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act").

2 The defendant pleaded guilty to the offence and this judgment is concerned with the matter of penalty only.

3 An agreed statement of facts was tendered which was in the following terms: 1. At all material times INSPECTOR AMANDA TEMPLETON , of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter. 2. At all material times LEWINGTON'S (LIVESTOCK) PTY LTD [ACN No: 092 122 024] was a corporation whose registered office is situated at 186 Sangsters Road, Wodonga in the State of Victoria ("the defendant"). 3. At all material times the defendant carried on the business of transporting and delivering livestock. 4. At all material times the defendant employed a number of personnel, including Leonard Stevens, 47 years of age, as a livestock driver. 5. At all material times Lewingtons Transport Pty Ltd, a company related to the defendant, owned a Byrne livestock trailer with Victorian registration number 23450-S ("the trailer") which was attached to a Kenworth truck with Victorian vehicle registration number NBI 590. The truck and trailer were provided by Lewingtons Transport Pty Ltd to the defendant for use by the defendant's employees in transporting livestock. 6. On 4 October 2001 Leonard Stevens attended sale yards at Nowra and picked up a part load of cattle in the trailer. Mr Stevens then travelled to the Moss Vale Livestock Selling Centre to load more cows and a pen of small bulls into the trailer. It is estimated Mr Stevens arrived in Moss Vale at 8pm. 7. At the sale yards in Nowra, Mr Stevens spoke with Russell Noble, a livestock haulage contractor for the defendant. Mr Noble warned Mr Stevens that one or two of the small bulls he was picking up at Moss Vale were difficult to handle. Mr Stevens left the sale yards at Nowra approximately two to three hours prior to Mr Noble. 8. At approximately 10.30pm Mr Stevens was found unconscious in the rear of the trailer at the Moss Vale Livestock Selling Centre ("the sale yards") by Mr Noble. 9. Mr Stevens was lying on his back with his feet up the internal loading ramp of the trailer. At the top of the internal loading ramp on the second deck of the trailer was a bull. The gate at the top of the loading ramp was open. 10. The floodlights of the sale yards were timer controlled and went out shortly after Mr Noble found Mr Stevens. Mr Noble located the metered power board to switch the lights back on and rang for an ambulance. Mr Noble then shut the gate at the top of the loading ramp to enclose the bull and moved Mr Stevens to sit up against a rail of the ramp. Mr Noble attempted to assist Mr Stevens until the ambulance arrived. 11. The ambulance officers treated Mr Stevens and found him to be deceased. The post mortem report dated 9 October 2001 prepared by Dr Docker concluded that the direct cause of death was head injury. 12. Sergeant Stone of Bowral Police Station attended the sale yards following notification of the accident and observed the following: (a) A semi trailer and prime mover Victorian registration number NBI -590 which was a red Kenworth with "Lewington Transport" marked on the vehicle. The attached stock trailer was a double decker with cattle on both decks. (b) The deceased sitting in a slumped position on the loading shute with a large laceration to the left ear and head. (c) The deceased was wearing blue overalls on which some cattle excrement was observed. (d) The gate at the top of the internal ramp to the second deck was shut and a bull was behind the gates. (e) The gates in the sale yards were closed with cattle in a number of different pens. 13. Senior Constable Spearman of Bowral Police Station was also in attendance at the sale yards and observed a bull in the run between the yards which became very agitated when approached. 14. Detective Senior Constable Olliver of the Goulburn Crime Scene Section examined the sale yards and observed the following: (a) The cattle trailer attached to the vehicle driven by the deceased was registered in Victoria bearing registration plates 23450 S. (b) The vehicle had been reversed to the cattle race displaying the number '2'. (c) The cattle trailer had two loading ramps with only the offside (driver's) ramp open and leading from the race to the second deck of the trailer. (d) The cattle ramp to the second deck of the trailer was constructed of patterned steel with raised steps across it. When walking on the ramp with wet soled shoes the ramp was slippery. (e) There were cattle in the two yards near the rear of the cattle trailer. In the yard immediately behind the race were 2 friesians, a Hereford and an angus. In the yard beside this were 4 friesians. 15. On 5 October 2001 Inspector Templeton attended the sale yards and carried out a factual inspection. The factual report is annexed hereto and marked "A". Photographs of the site were also taken by Inspector Templeton, copies of which are annexed hereto and marked with the letter "B". 16. Mr Noble was interviewed as part of Inspector Templeton's investigation and he observed that the livestock Mr Stevens loaded at Nowra were still in the trailer at the time he found Mr Stevens and some of the livestock from the sale yards at Moss Vale had also been loaded into the trailer. 17. Mr Noble confirmed that the opening and closing mechanism of the gate at the top of the ramp to the second deck of the trailer was not working. It was common for the types of latching mechanisms on the gates not to work properly often due to livestock pushing and bending the mechanics on them. 18. Mr Noble described the procedure for loading livestock was to follow the last of the livestock being loaded up the ramp to the second deck of the trailer in order to shut the gate. Whilst performing this procedure there is nothing separating the driver from the livestock on the internal ramp which can be slippery when wet from frost, dew or rain. 19. It is estimated that the internal ramp was on an angle of approximately 45 degrees. 20. Mr Noble regularly loaded cattle into the trailers without assistance and considered it was always unsafe to access the ramp to the second deck in order to close the gate when there were cattle on the second deck. 21. Stefan Butson, occupational health and safety co-ordinator employed by Lewingtons Transport Pty Ltd, was interviewed in the course of the investigation and was of the opinion that it was safe for a person to be standing on the internal ramp of the trailer whilst loading stock. 22. Mr Stevens was employed by the defendant as a livestock driver for approximately 7 months prior to the accident. Mr Stevens did not undertake a formal training programme with the defendant. 23. The defendant employs drivers who have experience with loading stock. Documented safe working procedures for loading and unloading livestock are made available to employees of the defendant. 24. A drivers handbook issued by Lewingtons Transport Pty Ltd is made available to the employees of the defendant. The handbook instructs employees not to proceed if they consider there is a safety risk whenever loading or unloading and to contact operations staff immediately in such situations. 25. The defendant required drivers to report defects to their trucks or trailers by phone to the stock office. The trucks and trailers were inspected every 20,000 kilometres travelled or on the reporting of damage. 26. The defendant carried out a risk assessment in 1998 for the task of loading livestock. The assessment was limited to manual handling risks. 27. The Victorian WorkCover Authority visited the defendant's workplace on a number of occasions from 11 April 2001 as part of theTransport & Storage Sub-sectors Project program. As a result of the visits, the Victorian WorkCover Authority issued an improvement notice to Lewingtons Transport Pty Ltd to eliminate the risks associated with the manual handling tasks for the sheep transport crates. As a result of the notice, Lewingtons Transport Pty Ltd carried out a risk assessment on 13 July 2001. A memo was then sent to all livestock drivers on 17 August 2001 to report damage to crates and defective parts to the workshop without delay. 28. The sale yards where the accident occurred are owned by Wingecarribee Shire Council and staffed by two to three persons during the day. The sale yard staff do not normally work at night and were not present at the time Mr Stevens arrived at the yards on the date of the accident. The sale yard lights are controlled by an automatic timer and can be activated at night by drivers using the time control devise located approximately 50 metres from the loading ramp where Mr Stevens' vehicle was located. 29. On 9 October 2001 Inspector Templeton issued a prohibition notice to Lewingtons Transport Pty Ltd in relation to maintaining the opening/shutting latching mechanisms on the crate gates of the trailers. On 19 October 2001 Lewingtons Transport Pty Ltd confirmed that the locking mechanisms on such of the trailer's gates as needed repair had been repaired. 30. Following the accident Lewingtons Transport Pty Ltd drafted a hazard report form for the handling of livestock. 31. On 20 June 2002 Inspector Templeton issued an improvement notice to the defendant to identify, assess and control all foreseeable hazards associated with the loading and unloading of livestock. 32. The defendant advised that they had commenced a training programme for the livestock drivers in conjunction with the National Industrial Skills Training Centre (TAFE) in Wodonga. 33. On 4 October 2002 the defendant also provided a risk register for the task of loading and unloading livestock. The risk register indicated that a memorandum would be sent to all drivers advising that a second person is to assist when loading and unloading bulls unless otherwise instructed by Barry Lewington, director of the defendant. 34. The alleged offence under Section 8(1) of the Occupational Health and Safety Act 2000 is as follows: On 4 October 2001, at the Moss Vale Livestock Selling Centre, Berrima Road, Moss Vale in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Leonard Stevens. The particulars of the charge are: (a) At all material times the defendant employed Leonard Stevens. (b) The defendant failed to provide and maintain plant, to wit, a Byrne livestock trailer with Victorian registration number 23450-S ("the trailer"), which was safe and without risks to health. (c) The defendant failed to provide and maintain systems of work for employees whilst loading and unloading livestock onto the trailer which were safe and without risks to health. (d) The defendant failed to provide such information as was necessary, to employees to ensure their health and safety whilst loading and unloading livestock onto the trailer. (e) The defendant failed to provide such instruction as was necessary, to employees to ensure their health and safety whilst loading and unloading livestock onto the trailer. (f) The defendant failed to provide such training as was necessary, to employees to ensure their health and safety whilst loading and unloading livestock onto the trailer. (g) The defendant failed to provide such supervision as was necessary, to employees to ensure their health and safety whilst loading and unloading livestock onto the trailer. (h) The defendant failed to undertake an adequate risk assessment in relation to employees loading and unloading livestock onto the trailer. As a result of the said failures Leonard Stevens was placed at risk of injury.

4 In addition to the agreed statement of facts there was tendered into evidence a factual report of the prosecuting Inspector and a number of photographs.

5 On behalf of the defendant there was received into evidence an affidavit of Barry Lewington, who was formerly a director and shareholder of the defendant company. It was the evidence of Mr Lewington that the defendant was a subsidiary of Lewington's Transport Pty Ltd. That company, including subsidiaries of which the defendant was one, at the time of the incident that gave rise to these proceedings "operated a fleet of approximately 160 trucks and 200 trailers and employed about 250 employees (including contracted drivers). The company transported on average 5,000 to 6,000 head of cattle and 25,000 to 30,000 head of sheep per week and operated 7 days a week depending on the season". It may be assumed, therefore, that the defendant was part of a group which was highly experienced in the transport of livestock.

6 It will be seen from paragraph [34] of the agreed statement of facts that there were a number of wide-ranging particulars of the charge given by the prosecutor against the defendant. However, I am not satisfied that there is sufficient evidence before the court to enable the objective seriousness of the offence to be determined by reference to some of these matters. I do not state this critically of the prosecutor because the written submissions of the prosecutor supplemented by oral submissions focussed on a number of specific issues. In describing the reasons which were to be taken into account in determining the nature and quality of the offence the prosecutor's written submissions listed the following: " The risk to safety involved of a person working alone, at night, with large animals was clearly foreseeable. · There were simple remedial steps which could have been taken to eliminate the risk of injury to the deceased worker and these were, inter alia, Adequate training of Mr Stevens in the unloading of livestock Adequate supervision Adequate assistance to perform the task at hand".

7 Accordingly, it is not necessary that I pursue so much of the allegations contained within paragraph (b) of the particulars as are apparently designed to refer to the failure of the latching mechanisms on the gates to work properly as contained in paragraph [17] of the agreed statement of facts.

8 No evidence was tendered by either party concerning the expertise and experience of Mr Stevens. All that is known is that he had been employed for approximately 7 months prior to his death and that he did not undertake any formal training program with the defendant.

9 The difficulty which faced the prosecutor in these proceedings and which is shared by the defendant and the Court is that there can be no certainty as to the circumstances surrounding Mr Stevens' death. Whilst it is clear from paragraph [9] of the agreed statement of facts that when found Mr Stevens was lying on his back with his feet up the internal loading ramp of the trailer and that the direct cause of death was "head injury," there was no evidence about any other injuries by way of bruising and abrasions on the body. There is some evidence about "some cattle excrement" being observed on Mr Stevens' blue overalls but otherwise there is nothing to indicate how he met his unfortunate death.

10 Because there is no evidence of the expertise and experience of Mr Stevens in handling large animals, and in particular a group of animals containing bulls, and because of the unavailability of any evidence as to precisely what happened at the time that Mr Stevens died, it is difficult to speculate about whether a lack of adequate training or a lack of adequate supervision would have eliminated the risk of injury and the death of Mr Stevens.

11 However, it is clear from paragraph [33] of the agreed statement of facts that the defendant determined in October 2002 that when bulls were being loaded and unloaded a second person was to assist the driver unless otherwise instructed by Mr Barry Lewington. The defendant for its part entered a plea of guilty because Mr Stephens had been required to undertake the unloading operation without the assistance of another person.

12 No evidence was placed before the Court concerning the inherent danger of handling cattle generally, bulls in particular or a group of cattle containing bulls, especially in connection with an unloading process from a trailer such as was involved in the incident which occurred on 4 October 2001. I am of the opinion that a court would not be able to take judicial notice of these matters although I feel more comfortable in accepting that in general terms bulls can create an inherently unsafe and dangerous situation for persons involved in handling them, the degree of which will vary, obviously, with the circumstances.

13 I am prepared to proceed on the basis of the concession made by the defendant, both through the agreed statement of facts and supported by its counsel during the course of the proceedings, that the failure of the defendant to have in attendance an additional person during the unloading operation constituted a breach of s 8(1) of the Act for the purpose of these proceedings. Indeed, Mr Warren of counsel, who appeared for the prosecutor, submitted that in general terms there should always be more than one person present when someone is unloading cattle. That other person may or may not need to be a supervisor depending on the circumstances of the operation including, obviously, the skills and expertise of the person principally involved in the operation. This, then, is the essence of the offence with which the Court is required to deal and with respect to which the defendant has pleaded guilty in these proceedings.

14 I also take into account that there was no evidence of any training given by the defendant to Mr Stevens although whether and to what extent this was necessary would depend upon his experience and expertise, about which, as I have earlier remarked, there is no evidence.

15 Given the acknowledged dangerous situation created in the handling of bulls, and given the death of Mr Stephens, I regard the offence viewed objectively as being a serious one.

16 It was common ground that the defendant had no prior convictions. The maximum penalty is therefore $550,000.

17 In fixing penalty I take into account the general deterrent effect of the penalty imposed. In terms of the specific deterrence of this defendant the evidence was that a receiver and manager was appointed in about February 2004 and that in July 2004 the business was acquired by another transport organisation. Unfortunately, the affidavit of Mr Lewington is not sufficiently specific. I assume that it was intended to convey the impression that the defendant is no longer trading and no longer carrying on business. If this was the intention, it was not spelt out with any particularity in Mr Lewington's affidavit. Nevertheless I shall proceed on the basis that the company is no longer trading, at the least in the hands of the Lewington family.

18 In mitigation, the prosecutor accepted that the defendant entered a plea of guilty at the earliest opportunity and that the defendant expressed contrition for and actively assisted Mr Stevens' widow and family after the incident. It also co-operated with the prosecutor in her investigation of the incident. The defendant appears to have a good safety record, certainly in terms of prosecutions for offences of safety legislation. Evidence contained within the agreed statement of facts and within the affidavit of Mr Lewington is indicative of an awareness of health and safety matters prior to the incident and an enhanced awareness and commitment to occupational health and safety matters after the accident.

19 There was tendered into evidence a victim impact statement given by Raylene Lois Stevens, the wife of the late Mr Stevens. The Court expresses sympathy for the impact on Mrs Stevens and members of the family of the late Mr Stevens caused by this tragic incident. I take it into account in the context of the provisions of the Crimes (Sentencing Procedure) Act and Regulations, and by reference to the authorities which are reviewed by Staff J in this Court in Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182.

20 Having regard to the early plea of guilty and having regard also to the other mitigating factors to which I have referred I intend to apply a total discount of 35%.

21 Having regard to the objective seriousness of the offence in terms of the maximum penalty of $550,000 it is my opinion that an appropriate penalty is $110,000 to which the discount of 35% should be applied leaving a net penalty of $71,500. The prosecutor sought a moiety and costs which were not opposed.

22 ORDERS 1. The defendant is convicted and found guilty of the offence charged. 2. I impose a penalty of $71,500 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant is to pay the costs of the prosecutor fixed by the Court in default of agreement. 4. Liberty to apply with respect to costs.

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