WorkCover Authority of New South Wales (Inspector Vierow) v Megarry Excavations & Roadworks Pty Limited

PROSECUTOR: Ms P E McDonald of counsel Solicitor: Ms S Reid WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr M L Shume of counsel Solicitor: Mr P Cutrone Sparke Helmore

JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION IN NEW SOUTH WALES IN COURT SESSION

Matter No IRC 4657 OF 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR VIEROW) v MEGARRY EXCAVATIONS & ROADWORKS PTY LIMITED Prosecution under s 15 of the Occupational Health and Safety Act 1983 JUDGMENT

1 This is a prosecution by Maurice William Vierow, as an inspector of the WorkCover Authority of New South Wales, of Megarry Excavations & Roadworks Pty Limited ("the defendant") for a breach of s 15(1) of the Occupational Health and Safety Act 1983. The sub-section states: 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 The defendant carried on an excavation business under the name of Megex Civil Pty Ltd. On 14 October 1998, Justin Street, an employee of the defendant, was killed when he was run over by a Caterpillar grader at a sub-division site at Castle Hill in the State of New South Wales. In this regard, the agreed statement of facts tendered in the proceedings stated: 6. Justin Street had been employed by the defendant on a full time basis as a plant operator for five years prior to the accident. He had worked for the defendant on a part time basis for approximately three years before commencing his full time position.

On the day of the accident Justin commenced work at the premises at 7.00am and was performing his normal duties operating plant including the grader and a scraper. The area of the premises in which Justin was working was on an incline or hill.

The grader is 20 feet long and weighs approximately 22 tonnes. It is used only on construction sites and it is not driven on public roads. There are two large wheels at the front to turn the grader and four large wheels of equal size at the back. Behind the front wheels of the machine there is a large blade which is used to push soil. The blade can be changed to point in different directions and can be lifted up and down at different angles. There are three ripper tynes at the rear of the grader that can be moved to a downward position, which is used for ripping up soil. The blade and the ripper can be lowered into the ground. The operator of the grader sits in a single cab about 1.6 metres from the ground.

Justin finished using the grader at approximately 9.30 am and parked it on the top of the hill. William Megarry a director of the defendant, then commenced using the grader himself. During this time Justin was using a scraper and was working in the same area as he had been using the grader on.

When William Megarry had finished with the grader, at approximately 10.00 am, he parked it facing across the hill. He parked the grader by leaving the gears in neutral, putting the blade down in the soil and pulling the hand brake on. He then went down the hill to use another smaller grader machine.

He worked on the smaller grader for approximately two hours. He then left the small grader at the bottom of the hill and drove to the top of the hill in his four-wheel drive vehicle.

When he was at the top of the hill he noticed Justin driving up the hill in the scraper. Justin had stopped the scraper quickly and was running up the hill. At this stage the large 14G grader was moving down the hill without a driver. William Megarry's view of the moving grader was partially blocked by a workshed.

William Megarry then saw Justin jump onto the left side of the moving grader onto the blade. Justin then tried to reach up to the handrail leading to the cabin of the grader, when he lost his footing and fell to the ground in front of the grader's rear wheels. The grader was still rolling at the time and it ran over Justin's body. The grader eventually came to a stop in a pile of soil 30 metres down the hill.

After witnessing the accident William Megarry ran down to Justin. Shortly thereafter Warren Megarry, William Megarry's son who is also a director and employee of the defendant, arrived at the scene of the accident.

William Megarry had originally parked the grader in a position that would have been in the way of the scraper that Justin had been using. William Megarry believes that Justin must have moved the grader from the position William Megarry parked it in, in order to complete his work on the scraper. Investigations indicated that Justin Street was the last person to park the grader before it started to roll.

An inspection of the grader following the accident revealed that the ripper tynes at the rear of the grader were in a raised position and the park brake mechanism was in the engaged position.

An inspection of the premises revealed a scrape mark in the dirt for approximately 40 metres behind the grader that appears to have been made by the left side of the grader blade. It was possible to trace the scrape mark back to ascertain where the grader had been parked just prior to the accident, which was on a gradient.

Tests were performed by Inspector Vierow and Inspector Corrigan with the assistance of Nick Terry, the service mechanic of Megex Civil. The tests revealed a) the handbrake was not capable of holding the grader in a stationery (sic) position; and

b) there was a hydraulic leak in the control valve which allowed the blade to retract.

c) there was no indication of excess oil leakage. 19. Inspector Corrigan was of the opinion that the driver had applied the correct parking procedure and that the parking mechanism (handbrake) was ineffective. The leakage within the hydraulic system reduced the initial pressure exerted on the grader blade and allowed the tare weight of the machine to propel it down the slope. 3 The charge against the defendant was as follows: On 14 October 1998 at the Landcom sub-division site situated at Baltinore Drive, Castle Hill 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 and in particular Justin Street, in failing to provide or maintain plant, to wit, a Caterpillar 14G grader machine, serial no. 96U585, that was safe and without risks to health contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are :

a) The defendant was at all material times an employer and employed Justin Street. b) The defendant at all material times carried on an excavation business under the name Megex Civil and was contracted by Landcom to carry out excavation work at premises situated at Baltinore Drive, Castle Hill in the State of New South Wales. c) The defendant failed to provide or maintain plant, to wit, a Caterpillar 14G grader machine, serial no. 96U585, that was safe and without risks to health. d) As a result of the said failure, Justin Street sustained fatal injuries.

The Verdict 4 After reviewing the agreed facts and in light of the charge and the particulars thereof, I am satisfied that the offence has been proven. The plea of guilty by the defendant was properly made and I enter a verdict accordingly.

Evidence for the prosecution 5 The evidence for the prosecutor included the agreed statement of facts; a report into the accident prepared by Inspector Vierow; a bundle of photographs taken by Inspector Vierow on the day of the accident; a report prepared by Inspector Corrigan on the condition of the road grader; a facsimile message from Antqip Pty Ltd to Inspector Vierow dated 12 November 1998 regarding the condition of the road grader; a record of interview between Inspector Vierow and William Megarry dated 5 November 1998; a record of interview between Inspector Vierow and Nick Terry dated 12 November 1998; a record of interview between Inspector Vierow and William Megarry dated 1 March 1999; a statement from the WorkCover Authority of New South Wales dated 24 October 2000 indicating that the defendant had no prior convictions.

6 Inspector Vierow was called for the purpose of cross-examination. In his cross-examination Inspector Vierow agreed that the method used to park the grader was to put it in neutral and then apply the hand brake. Additionally, the defendant had adopted a system of work whereby when parking the blade of the grader was put into the ground and the grader was parked across the hill. Inspector Vierow also agreed that the defendant had fully cooperated with the WorkCover Authority in the investigation of the matter.

Evidence for the defendant 7 The defendant relied on three affidavits filed in the proceedings, the deponents being William Megarry, Warren Megarry and Elaine Megarry. Elaine Megarry was called for cross-examination.

8 William Megarry's affidavit addressed the history of the defendant as a company, its financial position, the system adopted in parking and operating the grader machine and William Megarry's relationship with Justin Street.

9 Warren Megarry's affidavit addressed the issue of his longstanding friendship with Justin Street and the fact that he had been living with the Megarry family.

10 Elaine Megarry was the daughter of William Megarry and sister of Warren. Her affidavit addressed the close relationship between her family and Justin Street. Ms Megarry was a director of the defendant and one of her roles was to look after the administrative and financial side of the business. In cross-examination Ms Megarry was asked a number of questions about the defendant's financial state. She referred to the post-Olympics slump in the construction industry and the impact of the GST on the defendant's business.

Submissions for the prosecutor 11 Ms P E McDonald of counsel appeared for the prosecutor. Her submissions may be summarised as follows: · The primary factor to be considered when a judicial officer is determining an appropriate sentence to impose is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 at 474. · A number of objective features in this case call for the imposition of a substantial penalty: (a) the maximum penalty prescribed by Parliament; (b) the need for deterrence; (c) the nature and quality of the offence, in that it involved obvious and foreseeable risks. · As to maximum penalty it was submitted to be $550,000, the offence having occurred after 1 September 1997. · As to deterrence, Ms McDonald referred to Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 and Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71]-[80]. In Capral Aluminium the Full Bench held that both aspects of deterrence, that is specific and general, should normally be given weight of some substance in the sentencing process. · As to the nature and quality of the offence Ms McDonald submitted that the Court should regard the breach as serious for the following reasons: (a) the obvious risks involved; (b) the degree of seriousness of the breach; (c) the availability of simple remedial steps. · Ms McDonald submitted that given the inherently dangerous nature of the machine, the fact that it was being operated in a hilly area and that the defendant knew of the problems with the braking system of the grader, the risks to employees was obvious. It was also submitted that whilst the true measure of the penalty lies in the nature and quality of the offence and not the result, the occurrence of death or serious injury manifests a degree of seriousness of the relevant detriment to safety: Ferguson v Nelmac (1999) 92 IR 188 at 204; Tyler v Sydney Electricity (1993) 47 IR 1 at 5. Ms McDonald said that it would have been a simple and straightforward matter for the defendant to arrange for the overhaul of the braking system. · Ms McDonald referred to a number of subjective factors to be taken into account in sentencing. These were that: the defendant had no prior convictions; the defendant had pleaded guilty (see R v Thomson; R v Houlton (2000) 49 NSWLR 383); cooperation by the defendant with WorkCover; financial circumstances of the defendant.

Submissions for the defendant 12 Mr M L Shume of counsel appeared for the defendant. Mr Shume submitted that:

· It was not reasonably foreseeable that an employee would jump on a moving grader. · The system used for parking the grader was adequate. The defendant was unaware that there was a hydraulic leak that would release the pressure on the blade. · The defendant did have in place a settled safety procedure for parking the grader and the existence of such a procedure may mitigate the seriousness of the offence; there existed a system of work which may have prevented the accident had it been adhered to: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor [2001] NSWIRComm 130 at [133]-[136]. · This was one of those rare cases, given the traumatic effect of the death of Justin Street on the directors of the defendant, where deterrence should not figure prominently in any assessment of penalty. · The Court should allow a substantial discount for the early plea of guilty. · The defendant, over a long period, had a good safety record. · The defendant cooperated fully with the WorkCover Authority. · The defendant is a small family business. Consideration 13 The primary factor to be considered in determining the appropriate sentence under the Occupational Health and Safety legislation 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].

14 In the present case the defendant was operating what was a large, heavy machine in a hilly area. The defendant knew that there was a problem with the park-brake and that it required repair. The defendant knew that the brake would not hold the grader in a stationary position on a steep slope. Whilst the grader would have to have been taken out of service to have the brake repaired it would have been a relatively straightforward matter to schedule the machine for servicing rather than allow it to continue to pose a risk to health and safety in its unsafe state.

15 However, in considering the objective seriousness of the offence I should also take into account the fact that the practice of the defendant, regardless of the state of the park-brake, was to have the grader parked at such an angle with the blade dug into the ground so that it would not roll. On this occasion, however, it appears that there was an undetected hydraulic leak that allowed the pressure to come off the blade. Coupled with the faulty brake and the failure to park the grader at an appropriate angle, it rolled down a slope. Apparently Justin Street was the last person to use the grader. Mr Street saw the grader start to roll and attempted to stop it by climbing onto the grader. He slipped and fell under the wheels of the grader.

16 Another relevant consideration is the fact that as a consequence of the breach by the defendant, a death occurred. As Ms McDonald contended, the consequences of a breach do not in themselves dictate the amount of penalty. However, as she pointed out, the fact that a person died is relevant in determining the gravity of the relevant detriment to safety: Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; WorkCover Authority (NSW) (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No CT 1280 of 1995, 2 April 1997 at 10); WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 96-97; Lawrenson Diecasting at 476; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383 at 428-429.

17 The question of foreseeability is also relevant to the assessment of the seriousness of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at 62; [2000] NSWIRComm 71 at [81]. It is not necessary, in the context of foreseeability, to ask whether the defendant could have foreseen the actual incident, including in this case the fact that an employee might jump on to the moving grader in an attempt to stop it. It is a question of whether the defendant could reasonably have foreseen that a large, heavy machine being operated in a hilly area might roll down an incline if the park-brake was not in proper working order and thereby put the health and safety of employees or other persons on the site at risk. In my opinion, it was manifestly foreseeable.

18 That an employee might jump onto a moving grader machine to stop it would have been quite unexpected behaviour. Mr Street's action in jumping on the grader without regard to his own safety is something I should take into account in assessing the defendant's overall culpability. However, subject to any defence offered under s 53 (which was not the case here), it does not absolve the defendant of culpability for its own failures, such is the stringency of the obligations on employers under s 15(1) of the Occupational Health and Safety Act: see Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31.

19 In my opinion, the offence in this matter, as the defendant properly conceded, is a serious one.

20 Before considering the relevant subjective factors, I should deal with the issue of deterrence. Based on the judgment of the Full Bench in Capral Aluminium I believe there is a case for giving weight to the factor of general deterrence in sentencing the defendant. This is particularly so given the evidence by Nick Terry who carried out repairs on graders and other heavy machinery. He said that it was not unusual to find park-brakes on such machinery operated by other contractors in the same condition as that on the grader in question.

21 As to specific or personal deterrence, during the sentencing proceedings I observed the effect of the tragic death of Justin Street on the directors of the defendant. Little could be gained, in my opinion, in placing significant weight on the need for specific deterrence in assessing any penalty in this case.

22 The defendant entered an early plea of guilty 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 cooperated fully with the WorkCover Authority. Additionally, up to the time of the accident, the defendant had a good safety record extending over a period from the late 1980's when the defendant commenced to perform civil contracting work. I note that the defendant is a relatively small family business.

23 Given my assessment of the objective seriousness of the offence I consider an appropriate penalty to be $160,000. As to the utilitarian value of the early guilty plea I allow a discount of 20 per cent on the penalty. I allow a further discount of 10 per cent for the other subjective features.

24 For all of the foregoing reasons, after discounting for the subjective factors, I consider that the penalty to be imposed for the offence as charged is $112,000. The prosecutor shall have a moiety of the fine.

25 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $112,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's costs in an amount as agreed, or in default of agreement, as assessed.

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