Workcover Authority of New South Wales (Inspector Maurice Vierow) v Rail Infrastructure Corporation.

LEGAL REPRESENTATIVES: DEFENDANT: Mr J Gleeson QC Ms Thompson of counsel SOLICITORS: Sparke Helmore Solicitors

JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J 17 March 2003 Matter No. IRC 186 of 2002 Workcover Authority of New South Wales (Inspector Maurice Vierow) v Rail Infrastructure Corporation.

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983. Extempore Judgment [2003] NSWIRComm 112 1 This matter concerns a prosecution laid by Inspector Vierow, an appointed officer on behalf of the WorkCover Authority of New South Wales.

2 The prosecution arises from circumstances that prevailed at the defendant's worksite on 23rd May 1998 when Mr Rodney Fox, while employed at that work site by a subcontractor engaged by the defendant, was struck and killed by a Tangara train that was approaching Strathfield Station.

3 The offence involves a breach of s 16(1) of the Occupational Health and Safety Act 1983 (the Act). The defendant entered a plea of guilty to that offence on 29 August 2002.

4 The offence as expressed says that, on 23 May 1998, the defendant was an employer, and that: AT its place of work, on the Railway lines between Burwood and Strathfield Railway Stations, just to the western side of the Wentworth Road overbridge, ('the worksite') FAILED to ensure that persons not in its employment and in particular Mr Rodney Fox ('the deceased'), were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking at the work site, contrary to s 16(1) of the Occupational Health and Safety Act 1983.

5 Particularly it is said that the defendant failed on that day: (a) to provide an adequate system in respect of work undertaken immediately adjacent to a live railway line that was safe and without risk to health of persons not being in its employment, namely: (i) there was no physical delineation between the work site and the adjacent live (Down Main) line; (ii) there was no barrier preventing movement between the work site and that adjacent live line; (iii) there was inadequate warning to approaching trains of the presence of the work site; and (iv) there was inadequate warning to workers on the work site of the approach of trains.

6 In the proceedings before me, the prosecution tendered an agreed statement of facts as well as eleven photos which have been marked as exhibit 2. The photos were taken by an Inspector on behalf of the prosecution immediately following the accident. As a result, they were taken at night and the illumination in those photographs is not good. Nevertheless, the photos do identify relevant aspects of the track, plus the particular cranes that were involved in the accident involving Mr Fox.

7 The agreed statement of facts are: (1) At approximately 7:35pm on 23 May 1998 an employee of LBJ, Rodney Michael Fox ('Fox'), sustained fatal injuries when struck by a Tangara passenger train travelling on the Down Main line between Burwood and Strathfield Railway Stations, west of the Wentworth Road overbridge, Burwood.At all material times RSA had the principle function of supplying goods and services to the rail industry. (2) At all material times RSA was engaged in stage six of the Central to Strathfield overhead wiring upgrade/replacement ('the work'). The work involved the delivery and erection of metal structures that support aerial wires from which electric trains obtain their power. Five earlier stages had been successfully completed without incident. (3) At all material times RSA had employed subcontractors, including LBJ Crane and Rigging Pty Limited ('LBJ'). (4) The incident occurred immediately adjacent to the work site where the work was being undertaken. At the work site, RSA had possession of the four southern lines, that is (from south to north), the Down Local, the Up Local, the Down Suburban and Up Suburban lines. Trains were running on the two remaining 'live' tracks, that is from south to north still, the Down Main and Up Main lines. The distance between the closest rails of the adjoining Up Suburban line and the live Down Main line was approximately 3.5 metres. (5) Twelve of the metal structures, or beams, that were being delivered and erected were of a length of approximately 15 metres. The remaining two beams were approximately 25 metres in length. LBJ was to unload the beams from trolleys on the Down Suburban line and place the beams in designated positions to be erected sometime later by another crane. (6) At about 6:00pm on the said day the two larger beams were moved by means of the Kato (owned by LBJ) and Franna (owned by Harley Cranes Pty Ltd) mobile cranes, one crane at each end. Each of the cranes had headlights. The Kato/LBJ crane was operated by Rodney John Wigzell ('Wigzell'). Fox was acting as Dogman for Wigzell. The last beam was to be placed in the four foot area of the Up Suburban line. The load was 29 metres long by approximately 2 metres high and almost parallel to the track. It was while this last beam was being lifted into a position length wise on the Up Suburban line that Fox moved into the six foot area near the live Down Main line. Annexed to this Statement and marked 'A' is a diagram providing a layout of the immediate vicinity of the incident. (7) Fox was in all likelihood directing the lift in accordance with WorkCover's 'Guide for Dogman and Crane Chasers' which states that 'when lifting with 2 cranes only one person is directing the lift'. Both cranes were working in the boom-out fashion because of the overhead wiring. The overhead wiring was not live but contact with the wiring was to be avoided to ensure that no damage was done to it. (8) The Franna/ Harley crane at the Strathfield end of the load did not have a rotating boom nor did it have stabiliser leg. It was an articulated four-wheel drive vehicle with the crane driver/operator positioned under the boom. The Kato/LBJ crane at the opposite end of the load (for which Fox was Dogman) had a rotating boom and stabiliser leg. The operator cabin was located on the right had side of the boom, when viewed from behind. (9) Fox had to move to the live side of the Kato/LBJ crane in order to talk with the crane operator as the crane boom blocked the operator from him if he remained on the left side. (10) Both cranes lights were pointing forwards, both crane operators were facing forward (that is, toward the load slung between them), consequently Fox needed to be in their view to control the dual lift. (11) The Kato/LBJ crane had its end of the load suspended above the point where it would eventually place it. Both cranes had secured the load at a point approximately two metres in from the end of the load. This was necessary because knee braces were already attached to the beam. This meant that the ends of the load were close to the front of the crane body. This coupled with the angled (relative to the track) position of the cranes meant that Fox, in all probability, could not clearly see the ends of the load from anywhere but the 'live' side of the possession. (12) In his statement to Inspector Vierow, Kim Easther stated: 'When Harley's crane lifted their end approximately 300 millimetres above the ground and it slewed towards Rodney, it appeared to startle him, and it appeared to me that he stumbled to the north towards the live line.' (13) Fox was last seen by Wigzell to be standing to the right hand side of the Kato/LBJ crane between the live (Down Main) line and the dead (Up Suburban) line. At the time the deceased was struck he was wearing a reflective vest and hard hat. (14) The train which struck Fox was travelling at approximately 70 kilometres per hour. Approximately 30 metres past Burwood Road Bridge on the Strathfield side the driver heard a noise that sounded like the wheels of the train running over ballast as a result of which he applied the brakes and came to a stand approximately 100 metres from Strathfield station. The train guard looked back up the track but was unable to see anything. The train then proceeded on. (15) On 23 May 1998 at approximately 10:00pm Inspector Kumar attended and made an inspection of the incident site. A series of coloured photographs were taken. (16) On the day of the incident Fox had been picked up by a work mate, Wigzell, at about 2:00am. They drove to Lilyfield and picked up the crane and then went to the work site arriving at about 3:00am. (17) Anwar Abdelmessieh, Ganger, was RSA's Acting Site Supervisor on the said day. Approximately two weeks prior to the date on which the work was undertaken, Abdelmessieh had walked the section with site managers and other supervisors, including Peter Petrovski. At that time Abdelmessieh had discussed what could be done in the possession, the work method, the plant and equipment required for the work and how to get it to the locations. (18) Abdelmessieh gave a work site induction to the crane crew at approximately 4:00am on the said day at RSA's Burwood site office, including a briefing in relation to what protection was in place. He also walked the first part of the Burwood stockpile site with the crane crew explaining what they had to do. (19) John Arthur Quinn, RSA Construction Worker, held the Electrical Permit on the said day. At 4:00am Quinn was instructed by Abdelmessieh to sign the electrical permit and to induct personnel in the overhead wiring, advising what wires were live and what wires were dead. (20) Together with Abdelmessieh, Quinn gave a briefing at the Burwood site office at the country side of Strathfield station to all work site staff including subcontractors, crane operators, riggers and dogmen from some time after 4:00am to about 8:00am regarding the power outage and the running of trains on the live lines. Quinn's briefing covered what procedures were to be undertaken that day. Quinn told the staff which overhead power wires were live and which ones were dead and informed them that the Up and Down Mains were live with trains running. Quinn asked the staff present if they understood and to sign the personnel register saying that they understood by printing their name and then signing. (21) As such, Quinn instructed Fox and Wigzell in relation to the power on/power off situations and in relation to which lines trains were running, and, at about 8:00am, signed Fox and Wigzell onto the Electrical Permit. (22) Prior to the work commencing Quinn was instructed by Abdelmessieh to check the possession protection and the protection of the work site. (23) In this regard Quinn physically walked to the Country end of the work site. He checked the possession protection was still in place - and found protection on the Down Local, Up Local, Down Suburban and Up Suburban consisting of a red flag in the four foot of each line and three detonators on the country end of the red flag. (24) Quinn then walked through the job site to the City end of the work site - and confirmed protection on the Down Local, Up Local, Down Suburban and Up Suburban, consisting of a red flag in the four foot of each line and three detonators on the city end of the red flag. (25) At about 10:00am Fox, and Wigzell, were escorted onto the work site. (26) Subject to meal breaks, Fox and Wigzell then worked until about 6:00pm at which time they were packed up and ready to go home. They were then approached and told that the Harley's crane was coming around and to give a hand to unload two more stanchions. (27) The work was expected to be finished by about 4:30pm on the day. However, due to the overhead wiring train which was conducting work on the track in front of the exit from the storage depot where the beams were held prior to their movement to the track, there was a three and half hour delay to the work of placing the beams. (28) Once night fell, lighting at the area where the lift was being undertaken was provided by the headlights and boom lights of the Kato/LBJ crane and the headlights of the Franna/Harley mobile crane, both of which were undertaking the lift. (29) John Tadic, RSA Construction Worker, checked the qualifications of all riggers during the course of his shift on the said day. He had the riggers sign on the paper putting their names and the companies they worked for prior to the commencement checking their rigging tickets, safety boots and helmets and safety vests. (30) The beams were being laid out at various locations in the work site. They were being loaded from the Country end of Burwood station on to trolleys which were pulled down to the locations by balloon tyre dumpers. These dumpers were escorted by PW11 Hand Signallers. Tadic was with the crane at the location where the beams where unloaded. After unloading each structure, before moving to the next location, Tadic and Quinn would walk the Dogman to the next location before the movement of the crane. Tadic would point out to the Dogman where the beam was supposed to go, but asked the Dogman's opinion as to whether the beam could be put there. If the Dogman advised no, Tadic would ask where the possible place to put it was. Quinn would then walk with the Dogman back to the crane and then they would walk together to the next location for unloading. At times the crane driver would accompany them as well. (31) As at the said date RSA's procedures for work on or about railway lines was governed by a written manual entitled 'Safe working procedures for Engineering Work' - the 900 series. This manual was developed prior to the disaggregation of SRA in 1996. When disaggregation occurred SRA kept control of the Safe Working Units ('SWU's'). All persons working on or near railway lines were required to comply with them. The manual set out the procedures to be adopted when any type of engineering work was carried out on or about railway infrastructure. The work could relate to the repair, maintenance or upgrading or railway tracks or associated works. This manual comprised a significant number of individual SWU's identified and distinguished by numbers. The individual SWU's were not intended to be implemented in isolation but considered as forming part of the 900 series such that, depending on the prevailing circumstances, individual SWU's could be implemented in concert in any one work situation. (32) Safe Working Unit 900 provided, inter alia, the following: · This manual sets out the procedures which must be adopted when any type of engineering work is to be carried out on about Railway Infrastructure. This work may relate to the repair, maintenance or upgrading of railway tracks, rolling or associated works and equipment [SWU 900[a]];

· For the purpose of the procedures in this manual 'works on or about the line' refers to any work situation where employees, contractors, plant, equipment or material are located within or are likely to be within, 2.5 metres horizontally from the nearest rail of any running line [SWU 900[d]]. (33) Provision for protection of the work site was contained in SWU 950, entitled 'General requirements for track possessions'. SWU 950[b] described 'overhead wiring maintenance or construction' as one of the types of work which could require a track possession. SWU 950 stated:

· Protection of the closed line must be maintained until all work and activities associated with the possession are completed and the line is restored to normal use [SWU 950[d]], and

· When possession of one line has been given in a double or multiple line section and equipment or employees will obstruct or are likely to obstruct the other line(s), this line(s) must also be protected as required according to the circumstances [SWU 950[e]]; (34) There was no physical delineation or barrier preventing movement between the Up Suburban line and the live (Down Main) line. (35) Approaching trains were notified of the presence of the work site in the Special Train Notice No. 399-98 issued by the State Rail Authority of New South Wales. (36) It is agreed that RSA contravened section 16(1) of the Occupational Health and Safety Act, 1983, on 23 May 1998 on the railway line between Burwood station and Strathfield station, in that it failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of the Defendant's undertaking at the work site, in that: (a) The Defendant failed to provide an adequate system in respect of work undertaken immediately adjacent to a live railway line that was safe and without risk to health of persons not in its employment, namely: (i) there was no physical delineation between the work site and the adjacent live (Down Main) line; (ii) there was no barrier preventing movement between the work site and the adjacent live (Down Main) line; (iii) there was inadequate warning to approaching trains of the presence of the work site; and (iv) there was inadequate warning to the workers on the work site of the approach of trains.

8 A consideration of those facts discloses that at the time of the accident there were four separate organisations involved in the New South Wales Rail industry namely: · Rail Access Corporation (RAC); · State Rail Authority (SRA); · Freight Rail Corporation; and · Rail Services Authority of New South Wales (RSA) and renamed as Rail Services Australia.

9 In 2001, as a result of relevant amendments to the Transport Administration Act 1988, the RSA and the RAC were amalgamated to form the defendant before me known as the Rail Infrastructure Corporation (RIC). The RSA and the RAC were dissolved as separate entities.

10 At the time of the accident at Strathfield involving the death of Mr Rodney Michael Fox, the RAC was the owner of the New South Wales rail infrastructure. The RAC had contracted with the RSA to perform overhead wiring upgrade and replacement work between Central and Strathfield railway stations. That work involved the delivery and erection of metal structures that support aerial wires from which electric trains obtain their power. The photos before me assist in understanding the nature and size of those particular metal structures. Some of them were being dealt with as part of the work leading up to the accident.

11 Five earlier stages of that work had been successfully completed without incident as at 23 May 1988.

12 In order to undertake the work referred to, the defendant had engaged a number of subcontractors. One of them was LBJ Cranes and Rigging Pty Limited (LBJ), the employer of Mr Fox. LBJ also employed a Mr Wigzell. In addition to the services of Mr Fox and Mr Wigzell, LBJ Cranes had provided a mobile crane referred to as a 'Kato Crane' to perform work at the work site.

13 As part of a two-person crew, Mr Wigzell was the crane operator and Mr Fox was the dogman. Both had commenced work at the defendant's work site at 3:00am on 23rd May 1998.

14 In order to undertake the work required at the site, the defendant had taken possession of the four southern-most railway lines, the up-suburban, down-suburban, up-local and down-local lines, for the purpose of undertaking track and overhead-wiring rehabilitation work. Trains were still running on the two remaining 'live' railway lines, the up-main and the down-main lines.

15 The distance between the closest rails of the adjoining up-suburban and the live down-main line was approximately 3.5 metres. Various structures involved in the overhead-wiring rehabilitation were being moved from Burwood to the work site where they were to be erected on the Sunday, the day of the accident. One of them was the metal structures that I have earlier referred to. To do this a number of trolleys, cranes and other machines were in use, operated by a mixture of the defendant's employees and contractors to the defendant or their employees.

16 Twelve of the metal structures that were being delivered and erected were some 15 metres in length. The remaining two beams were some 25 metres in length. The task of Mr Wigzell and Mr Fox with their crane was to unload the beams from trolleys on the down-suburban line and place those beams in designated positions to be erected sometime later by another crane.

17 At about 6pm on the day of the accident the two larger beams that I have referred to were moved by means of two mobile cranes with one crane at each end of those beams. The two cranes were the Kato crane operated by Mr Wigzell with Mr Fox's assistance and the other crane was operated by Harley Cranes Pty Limited.

18 Mr Fox was acting as a dogman for Mr Wigzell and assumed that role for the purposes of both cranes when the large metal beam was being lifted. The large beam was to be placed in the area of the up-suburban line. That load was some 29 metres long by approximately 2 metres high and almost parallel to the track. It was while this last beam was being lifted into position length wise on the up-suburban line that Mr Fox moved into the six foot area near the live down-main line and suffered the fatal injuries that he did, when he was hit by the Tangara train on that live line.

19 To assist in understanding the layout and proximity of the up-suburban line with the live down-main line, a diagram is attached to the statement of facts as Annexure A. That diagram also forms part of this judgment as Annexure A.

20 As the statement of facts more fully details, it would appear that in directing the lift of metal beams utilising two cranes, Mr Fox had to move to the 'live' side of the track in possession of the defendant. As I have already indicated, of the two cranes, one was owned by Mr Fox's direct employer, LBJ Crane Rigging and the other by Harley Cranes Pty Limited.

21 In positioning himself as he did on the 'live' side of the track, Mr Fox was, seemingly, in a position to view both crane operators in order to control the dual lift.

22 At the time of the dual lift there would appear to have been a movement in the Harley crane that caused Mr Fox to move backwards towards the live line. An employee present at that time, Mr Kim Easther states: - When Harley's crane lifted their end approximately 300millimetres above the ground and it slewed towards Rodney, it appeared to startle him, and it appeared to me that he stumbled to the north towards the live line.

23 Apart from the particulars of the offence under s 16(1) of the Act as pleaded, the direct cause of the accident, as agreed was: (i) there was no physical delineation between the work site and the adjacent live (Down Main) line; (ii) there was no barrier preventing movement between the work site and the adjacent live (Down Main) line; (ii) there was inadequate warning to approaching trains of the presence of the work site; and (iv) there was inadequate warning to the workers on the work site of the approach of trains.

24 Reference to the photographs demonstrates the narrow margin for error in terms of distance as between the up-suburban line where Mr Fox's work activities were directed and the live down-main line.

25 On behalf of the defendant two affidavits were tendered with considerable annexure material. The first affidavit was that of Mr Ken Kelman, the General Manager, Safety for the defendant. Mr Kelman was appointed to that position in September 2001. The second affidavit is from Mr James McDonald. Mr McDonald is the General Manager, Safe Working Systems and Operational Standards for the defendant. He was appointed to that position in January 2001 and prior to that he had been with the RAC since 1996.

26 The defendant has a prior conviction and it is agreed that the maximum penalty in this matter is $825,000. 27 28 In considering offences under the Act for the purposes of penalty it is well known that one must start by considering the objective seriousness of the offence. That principle is well settled and was expressed by a Full Bench of this Court in Lawrenson Diecasting Pty Limited v Workcover Authority of New South Wales (1999) 90 IR 464 and more specifically at 476 where the Court had this to say: In the case of an offence under s15(1) of the Act, there are a number of factors which may tend to establish the existence of an objectively serious offence.

29 I interpose at this point to say that the test is no different for offences under s16. I continue: It will be a serious offence when there is an obvious or foreseeable risk of safety against which appropriate measures were not taken, even though such measures were available and feasible …The gravity of the consequences of an act does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk of safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant.

30 On any view this matter is objectively very serious. The close proximity of the line on which Mr Fox was working and the live railway line carrying trains at considerable speed demanded the most rigorous approach to safety considerations. Given the circumstances of the accident involving Mr Fox, the risk to safety was clearly foreseeable. The absence of any barrier for the physical delineation between those two lines and given Mr Fox's need to locate himself where he did to secure a line of vision with the two crane operators rendered the work site manifestly unsafe. The death of Mr Fox as a consequence of that clearly exacerbates the gravity of the breach and the culpability of the defendant: Tyler v Sydney Electricity (1993) 47 IR 1 at 5.

31 It is relevant to the objective seriousness of the offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent the injury occurring. To put it another way, one should have regard to remediation or to the extent of that remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

32 On this issue the agreed statement of facts discloses at paras [37] to [41] those procedures that were in place at the time of the accident in May 1998. Those paragraphs particularly disclose that the RSA procedures for work on or about railway lines were governed by procedures known as 'Safe Working Units', otherwise referred to as SWU's. By all accounts those SWU's were voluminous in nature and incorporated within them were procedures entitled 'Safe working procedures for Engineering Work' generally referred to in the facts before me as the '900 series'.

33 It is not disputed that at the time of the accident the responsibility and control for the oversighting of SWUs rested with the SRA. Nevertheless, all persons employed or engaged by the defendant before me were required to be bound in following the procedures as set out in the SWUs. In a number of those SWUs there were procedures to be followed by persons working on or near railway lines. That work included repairs, maintenance or upgrading of railway tracks or associated work.

34 There were a number of individual SWUs that, when taken together, comprised the procedures that were to be followed. For example, as the facts disclosed, the SWU 900 provided, amongst other things, for procedures that were to be followed for repair and maintenance work.

35 Those procedures involved the type of work referred to as 'Works on or about the line.' This referred to any work situation where employees, contractors, plant, equipment or material located within 2.5 metres horizontally from the nearest rail of any running line. There was also provision in an additional SWU entitled 'General requirements for track possessions'.

36 Notwithstanding those procedures that were in place, there was no physical delineation or barrier preventing movement between the up-suburban line and the live down-main line.

37 As one of the steps taken within those procedures at the time of the accident, there had been a notification issued by the State Rail Authority of New South Wales about the presence of work on the line.

38 Two issues arise on any consideration of the suitability of the SWUs to the day to day workplace activities of the defendant, particularly given the nature of the work being undertaken by Mr Fox on behalf of the defendant and his proximity to the live down-main line. The first is the extent to which the procedures laid down were adequate to ensure a safe work place. Second, the extent to which such procedures were regularly reviewed and amended to reflect an emphasis on occupational health and safety issues with a proper risk management perspective rather than procedures laid out to ensure a particular job got done in accordance with a set procedure.

39 On any view, the SWUs were seriously deficient on both considerations. For example, it was known that the distance between the line Mr Fox was working on when he was hit by the Tangara train and the live main line was 3.5 metres.

40 At the time of the accident the procedures laid out in SWU 900 were required to be observed when maintenance or repair work was to be undertaken within, or likely to be within, 2.5 metres from the nearest rail of any running line.

41 Given the task that he was engaged in at the time of the accident, Mr Fox would have been within that distance. Despite that, there was no physical delineation or barrier preventing him or alerting him to the highly dangerous position that he was in by positioning himself where he did. By all accounts, he was obliged to position himself where he did in order to secure a line of vision to control the dual lift of the cranes.

42 It was, on any view, an accident waiting to happen.

43 It is necessary to identify what actions were taken by the defendant, and the circumstances that prevailed, prior to and immediately before the accident.

44 It was submitted to me, on behalf of the defendant, that this was not a case where contractors had been engaged by the defendant with no thought at all being given to their safety or any type of assessment being undertaken prior to the work being performed. While that may be the case, what was done was seriously inadequate and deficient in all the circumstances.

45 The statement of facts details at paras [23] to [30] that, prior to the work being commenced, the contractors and those who operated the crane had undertaken a site induction given by an employee of the defendant at about 4am on the 21st May 1998. As part of that site induction, an employee of the defendant also walked with the crane crew along the relevant part of the track, explaining what they were required to do. As well, another employee of the defendant explained to the crane crew the existence not only of the overhead wires, but which of those wires were live and those that were not.

46 It is accepted in the statement of facts that the crane crew, which included Mr Fox, were briefed as to those lines that were live and that trains would be running on them. It was also part of the procedures in place at that time that, once induction had been given and the briefing completed, those persons, including on this occasion Mr Fox, would be asked to sign what was referred to as a personnel register.

47 Without having sighted the personnel register, it may be nothing more than simply a confirmation of a particular person attending on that day, rather than signifying what might be regarded as an understanding of all that had been explained. I do not take that matter any further. I simply say that it is not possible to know what the signing of the personnel register means as far as ensuring that the persons who had received the induction and instructions fully comprehended and understood them. As well, Mr Fox and other persons engaged that day were given the requisite safety vests and hard hat before they proceeded onto the site.

48 Prior to commencing work, employees of the defendant also undertook a check that is referred to in the statement of facts as, 'the possession protection of the work site'. This consisted of a red flag in the four-foot of each line and three detonators on the country end of the red flag.

49 The work to be undertaken by Mr Fox and Mr Wigzell was meant to be finished at 4.30pm on 23 May 1998. However, because of a particular delay at that site and problems involving the overhead wiring, there were delays that extended that time for some three and a half hours or more.

50 Notwithstanding the procedural steps taken by the defendant prior to the accident as outlined above, those steps were seriously deficient and, by any measure, unsafe. For example, Mr Fox was carrying out a task requiring his close and full attention in controlling the dual lift of the crane. At the same time he was expected to remember where the live lines were, vis a vis his standing position, with nothing to assist him except what he had been told at 4am that morning, and some red flags and detonators that were, on any view, of no visual assistance to him to be mindful of the live train track immediately at his back.

51 Whatever instructions or information Mr Fox had been given by way of site induction had taken place some fifteen hours before after what could only be considered a very long and undoubtedly physically tiring day. In undertaking the work that he was doing at the time, there was absolutely nothing of a physical nature by way of barrier or otherwise, to remind him of the dangerous situation that he was in. As I have already stressed, the circumstances that prevailed on this occasion and the risk to the safety of Mr Fox was clearly foreseeable.

52 The offence before me is a very serious one and I propose to consider the issue of penalty on that basis.

53 In imposing a penalty in this matter, regard must be had to general and specific deterrence. That much is evident from the decision given by the Full Bench of this Court in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR, 29 particularly paras [74] and [77]. In para [74] of that decision the Full Bench said in relation to general and specific deterrence:- We consider that the extracts from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight and some substance in the sentencing process.

54 Paragraph [74] goes on to state that 'the judge must indicate with some precision' when excluding either of those aspects in his or her consideration. On that point at para [77] the Full Court stated: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46.

55 There are clearly elements within that passage relevant to the defendant before me. It cannot be said, given the nature of the defendant's undertaking and the work that it performs, that the risk of re-offending is non existent.

56 The defendant continues to conduct a large enterprise with a large number of employees in an industry that, on any view, has inherent risks to safety. In my view, the element of specific deterrence is a factor that should properly be taken into account in determining the question of penalty in this matter. 57 The prosecution has acknowledged that the defendant has entered its plea of guilty at the first available opportunity once the terms of the amended order clarified the charge, and is properly entitled to discount on that basis. I assess that discount at twenty five percent.

58 The prosecutor also concedes that the defendant has co-operated fully with WorkCover in its investigations in this matter. The extent to which the defendant has seen fit to address its occupational health and safety obligations following the accident are detailed in the affidavit material of Mr Ken Kelman and Mr Jamie McDonald.

59 As Mr McDonald deposes, immediately post the accident there was an inquiry into the circumstances of it that resulted in interim steps being taken in relation to the SWU that applied at that time. These steps involved:

· the issuing of a memorandum to all general managers and directors in relation to the minimum additional safety protection to be put in place. That memorandum specifically referred to the employment of a hand signaller to act as a lookout in relation to approaching trains and the placement of detonators on the line in appropriate circumstances.

· a circular was issued to all rail personnel commencing in August 1999, setting out instructions in relation to the separation of workers operating trains.

· SWU 910 and 912 were amended to include these directions and, prior to its release, the contents of that circular 'were made aware' to all operators and staff of 'its effect.'

60 In March 1999, Dupont Environmental Management Inc was engaged to review the current risk management within the organisation and recommend any change that they considered appropriate. A proposed eleven-step safety improvement was accepted and implemented by what was then the RSA and still operates under the current defendant, the RIC. Training was undertaken of both employees of the defendant as well as contractors and their employees in relation to safety procedures and awareness including general induction training, safety induction and specific safety induction training.

61 Probably of most significance on the general issue of rail safety was Justice McInerney's Special Commission of Inquiry into the Glenbrook rail accident. That inquiry resulted in two reports - an interim report of November 2000 and the final report of April 2001. Recommendations flowing from that inquiry led to the rewriting of the Safe Working Units and resulted in the introduction of new network rules and network procedures, now known as NWT's, with an allocated budget of just over five million dollars to be expended over a period of eighteen months.

62 These new rules were introduced on 4 November 2001. Amongst other things, the new network rules included network procedures which provided detailed instructions on how to perform safety related tasks to meet the requirements of the new rules. The new rules are based on established risk management principles that encourage continuous assessment of safety. This was certainly not in place in the defendant's operations and certainly something that was not in place at the time of this accident involving Mr Fox. The new rules would have resulted in a Possession Protection Officer, and a Possession Officer being present whose primary duty would have been to keep a lookout and to keep the work site and the workers safe. The new rules would also have resulted in the issuing of Local Possession Authorities, Special Train Notices, designation of Danger Zones and the assigning of lookouts, amongst other things.

63 The affidavit material of Mr Kelman also highlights other initiatives which the defendant has put in place but are not necessarily resulting from the particular incident before me. They include matters such as principles of safety management by way of training. Next, some three thousand workers of the defendant have received ongoing training in relation to certain aspects of occupational health and safety during 2002 and ongoing. There is a $300,000 budget which has been approved and is on trial in relation to track side signals and work site protection to improve safety. In April 2002 the position of Manager Safety Culture and Development was filled to assist in the promotion of safety culture and such matters.

64 In October 2002 the program referred to as the Fatigue Management Program was introduced to assist the employees of the defendant to understand aspects such as fatigue, drugs and alcohol. As well, from May 1998 to March 2003 lost time injury frequency rate has decreased to its lowest rate in six years.

65 All of those matters highlight the extensive amount of remedial work that the defendant had to undertake in order to address the serious deficiencies in its occupational health and safety procedures and obligations that existed at the time of Mr Fox's accident.

66 For the purposes of the matter before me the defendant has prior convictions. While this invokes the provisions of s51 of the Act, the timing of this matter being heard before me requires me to put aside much of what has happened as far as the defendant's prior convictions for offences under the Act are concerned.

67 Exhibit 3 before me discloses that the defendant has twelve prior convictions. It is known that the facts and circumstances of a number of those matters are significant as far as this defendant's culpability is concerned. However of those twelve, all of them except one concern offences that occurred after the offence before me. That exception has been identified as the matter dealt with by the Chief Industrial Magistrate on the 18 May 2001 when he imposed a penalty for an offence under s16(1) of the Act in the sum of $22,500. The actual facts and circumstances of that matter are not known to me. 68 That this is a second offence is not disputed. The issue is whether I can properly take into account for the purposes of penalty those convictions recorded against the defendant in relation to offences that occurred after the offence before me. A decision relevant on this point is that of Marks J in WorkCover Authority (Inspector Campbell) v Nelmac Pty Ltd [2000] NSWIRComm 228, delivered on 16 December 2000 where at paras [34] and [35] his Honour stated:

…Because the section contains references to both a prior conviction and a prior offence which, in my opinion, creates some obscurity in the overall meaning of the section and some ambiguity, I have had recourse to the Second Reading Speech of the Honourable J W Shaw, then Attorney General and Minister for Industrial Relations when the WorkCover Legislation Amendment Bill was debated before the Legislature. That speech is reported in Hansard of 13 December 1995 commencing a p 4775. At 4778 the Attorney said: "In the case of second or further offences, the amendments will provide that the maximum penalty increases by half as much again, bringing the possible maximum fine for a corporation in serious cases to $750,00."

It seems clear that the intention as expressed by the Attorney General was that s51A would apply in the case of a second or further offence. It is the offence which triggers the application of the section and not the date of the conviction for that offence. (my emphasis)

69 On that point, it is also well established that while the defendant has a prior conviction, such prior conviction does not of itself justify a greater penalty that the offence before me warrants. It merely disentitles the defendant to the full measure of leniency that it would normally be given in the absence of a prior criminal record.

70 That the defendant had done much to address the serious deficiencies in its occupational health and safety program is laudatory and long overdue.

71 The history of the defendant's steps in doing so I have already referred to, detailed as they are in the affidavit material of Mr Kelman and Mr McDonald. Those steps were undoubtedly accelerated by the report of Justice McInerney following the Glenbrook Rail Inquiry in 2000 and 2001. One of the things that has come to light in this matter, apart from any others, is that there has been a much improved and long overdue change of attitude towards occupational health and safety by the defendant in its new corporate identity.

72 There is now a renewed emphasis on safety in the workplace within the context of risk assessments being undertaken. It is also on any view a process that will take some time before significant improvement flows into the workplace on a day-to-day basis but I accept that the process has started.

73 Taking into account the subjective features that I have identified in favour of the defendant, I determine a further discount on penalty of five percent. Taking into account all of the issues in this matter I determine a notional penalty of $240,000. In applying the discounts I have determined I fix a final penalty in this matter of $168,000.

Orders 74 Accordingly I make the following orders: (1) The defendant is convicted of the offence as charged. (2) I impose a penalty of $168,000. (3) I allocate a moiety to the prosecutor on the usual terms. (4) Costs as agreed or, failing agreement within 21 days, may be re-listed before me.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.