Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales - [2002] NSWIRComm 72 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales

[2002] NSWIRComm 72

Industrial Relations Commission (NSW)|2002-07-01|Before: Walton J, Mahoney JA, Newman JJ, Marks J, Kavanagh J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Walton J, Mahoney JA, Newman JJ, Marks J, Kavanagh J

Source

Original judgment source is linked above.

Judgment (98 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales [2002] NSWIRComm 72 PROSECUTOR: Workcover Authority of New South Wales (Insp Robert Stobo) PARTIES : DEFENDANT: State Rail Authority of New South Wales. FILE NUMBER: IRC 198 of 1998 CORAM: Walton J Vice-President CATCHWORDS : Occupational Health & Safety - Alleged failure to properly train worker employed to perform maintenance work on braking mechanism of defendants rail maintenance vehicles - Plea of guilty - Sentence determined by specific reference to offence charged - Braking failure not manifest in accident - Occurence of accident not relevant to seriousness - Risk to safety is potential failure of braking system where inadequately trained employee engaged - Consequences of breach considered - Context of operations - Specific deterrence should usually feature in determination of penalty - Specific deterrence focuses on propensity to reoffend - Strident steps taken to ensure health and safety in workplace - Specific deterrence still relevant as there is still potential for defendant to reoffend, however, lesser feature in sentence due to steps taken - Defendant had a significant number of prior convictions - General Deterrence - Relevance of prior convictions to determination of penalty - Relevance of convictions for other offences which had been entered following offence but prior to determination of culpability - Some tension in the relevant authorities - Conviction after offence to date of hearing may be taken into account but only in tempering leniency, however, unnecessary to determine in this matter as significant criminal record in any event - Special feature of this case was that defendant's workforce had dramatically decreased between offence and hearing of prosecution - Size and extent of defendant's operations taken into account in assessing prior record - Practical reality is the greater the size of the workforce, the greater the potential for what may properly be considered accidents - Significant offence, but not so serious as to warrant a penalty at high end of scale - Changes in the policies and procedures relating to health and safety adopted by the defendant a significant mitigating feature of these proceedings - Subjective features - Plea properly made and conviction entered - Penalty imposed - Costs LEGISLATION CITED : Occupational Health and Safety Act 1983 Transport Administration (Amendment) Act 2001 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Charara v New South Wales Director of Public Prosecutions [2001] NSWCA 140 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64 Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 R v Boney (unreported, NSW Court of Criminal Appeal, Mahoney JA, Grove and Newman JJ, 22 July 1991) R v MacDonnell (unreported, Court of Criminal Appeal, 8 December 1995) R v Thomas, R v Houlton (2000) 49 NSWLR 383 CASES CITED : Reg v Hutchens (1957) 75 WN (NSW) 75 State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 The King v Withers (1789) 3 TR 428 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 WorkCover Authority of New South Wales (Inspector Gordon) v State Rail Authority (unreported, Marks J, 27 March 1997) WorkCover Authority of New South Wales (Inspector Milligan) v State Rail Authority of New South Wales (unreported, Matter No's IRC 7032 - 7036 of 1997, Kavanagh J, 13 October 1999) WorkCover Authority of New South Wales (Inspector Richey) v State Rail Authority of New South Wales [2000] NSWIRComm 205 WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd (2001) 105 IR 236 HEARING DATES: 06/01/2001 DATE OF JUDGMENT: 05/07/2002

[9]

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section.

[15]

8 Machine 1 was manufactured by Plasser Australia Pty Ltd in 1983. The defendant leased the machine from that company but was responsible for its repair, maintenance and operation. It was approximately 16 metres in length and weighed approximately 36 tonnes. The machine had a cab at each end, the smaller being at the front. The larger cab at the back served as a driving station and the control station for the 'work' mode. Travelling controls were duplicated in each cab. The machine could be driven from either cab, in either direction, at any speed up to a maximum of 50km/hr. Machine 1 had two modes of travel; the first was known as 'indexing' (the 'work mode'), whereby the machine moved automatically at a slow speed (moving a distance of about 0.6m at a time to advance from sleeper to sleeper and adjusting the position of the rail at each of these positions), and a 'travel mode', whereby the machine is taken to and from the site. The maximum speed during 'travel mode' was stated to be 80km/hr on the main identification plate and 50km/hr on a metal tag inside each cabin. 9 The collision occurred on a blind curve about 1 kilometre from Stokes Siding station between Byron Bay and Murwillumbah. Machine 2 was travelling backwards away from the station at a walking pace uphill on a slight incline. Machine 1 was travelling backwards in the opposite direction, that is, downhill towards the station at a considerably higher speed. 10 The parties were agreed that as the vehicles approached the point of impact, visibility from Machine 1 was estimated to be approximately 70 metres. 11 The collision resulted in the derailment of Machine 1. This machine came to a halt approximately at the point of collision. Machine 2 remained on the rail track in its normal travelling position but the force of the impact sent Machine 2 some 40m down the track from the point of collision. It was agreed that its wheels must have "skidded" on the rails as once the vehicle had come to a halt following the accident it continued to drive back along the rail track towards the point of impact.

[21]

TJ 083 has two modes of operation; the first is known as indexing (which is work mode) and the second is known as travelling (which is non-work mode). On or about 1 February 1996, Mr Beveridge diagnosed that one of the indexing breaking valves on TJ 083 was not working. 7. Mr Beveridge ordered a replacement valve from the SRA stores in Sydney. Mr Beveridge received a replacement valve on or about 6 February 1996 but it was the incorrect valve for TJ 083. Mr Beveridge informed Mr Myers of this on or about 6 February 1996. Mr Myers cleaned up the original faulty valve on TJ 083 but the valve remained faulty. Mr Myers ordered a second replacement valve from a local hydraulic shop in Murwillumbah. 8. On 7 or 8 February 1996 Mr Myers noticed that the brakes on one axle on TJ 083 were locked on. He released the brakes and backed the brake blocks away from the wheels. This action effectively reduced the braking capacity of TJ 083 by 50%. 9. On or about 13 February, Mr Myers collected the second replacement valve from the Murwillumbah hydraulic shop. Mr Myers fitted the valve on 20 February. TJ 083 was not required for use between 13 and 20 February 1996. 10. The second replacement valve from the Murwillumbah hydraulic shop failed when the machine was transferred into indexing mode. Mr Myers left the brakes 'backed off' and sought a third replacement valve from Lismore. 11. Mr Myers advised Mr Kenney and Mr Paxton on 20 February 1996 that the rear brakes had been 'backed off'. It was Mr Kenney's responsibility to decide whether TJ 083 was safe to operate. Mr Beveridge was unaware that a third replacement valve had been ordered, having assumed the indexing valve had been received and fitted from the Murwillumbah hydraulic shop. 12. Mr Myers then fitted the third valve to TJ 083 on 20 February 1996 but failed to re-adjust the brake blocks, despite being aware from prior use of the TJ 083 manual that such readjustment was necessary. 13. The correct procedure when fitting a new indexing valve to TJ 083 is to reset the entire braking system and to assess the working and travelling modes. 14. The SRA's Safe Working Unit 940 states: 'All track vehicles travelling and operating on running lines must be in a safe mechanical condition'

[26]

12/12/1989 OH&S Act 1983 15(1) PORT KEMBLA 03/04/1991 OH&S Act 1983 15(1) NEWCASTLE 02/07/1991 OH&S Act 1983 15(1) NEWCASTLE 25/03/1992 OH&S Act 1983 15(1) CIM 27/01/1993 OH&S Act 1983 15 CIM 13/07/1993 OH&S Act 1983 15(1) CIM 20/08/1993 OH&S Act 1983 15(1) CIM 04/07/1994 OH&S Act 1983 15(1) CIM 16/12/1994 OH&S Act 1983 15(1) 16/07/1996 OH&S Act 1983 16(1) 12/09/1996 OH&S Act 1983 16(1) IRC 23/10/1996 OH&S Act 1983 16(1) CIM 27/03/1997 OH&S Act 1983 15(1) 29/07/1997 OH&S Act 1983 16(1) CIM 22/10/1998 OH&S Act 1983 16(1) IRC 10/05/1999 OH&S Act 1983 16(1) CIM 13/10/1999 OH&S Act 1983 15(1) IRC 13/10/1999 OH&S Act 1983 15(1) IRC 13/10/1999 OH&S Act 1983 15(1) IRC 13/10/1999 OH&S Act 1983 15(1) IRC 13/10/1999 OH&S Act 1983 15(1) IRC 06/10/2000 OH&S Act 1983 16(1) IRC 08/11/2000 OH&S Act 1983 16(1) IRC 15/12/2000 OH&S Act 1983 15(1) IRC 2750 88/1175 2500 90/1354 2000 91/485 5000 90/1361 3000 UNKNOWN 2000 85/1709 3000 93/171 3000 93/985 INDUSTRIAL COURT 40,000 92/1115 INDUSTRIAL COURT 25,000 95/1268 35,000 (Confirmed on appeal in IRC 96/5550) 96/1022 6000 96/627 INDUSTRIAL COURT 125,000 96/1151 3500 97/194 40,000 UNKNOWN 6000 98/539 30,000 97/7032 110,000 97/7033 20,000 97/7034 20,000 97/7035 20,000 97/7036 200, 000 99/3369 80,000 99/4624 300,000 (Appeal from conviction on 27/10/99) 99/6321

[67]

55 I consider it appropriate for the consideration of this matter to fully set out the relevant passage from Capral Aluminium (at [73] - [79]): 73 Although general deterrence and specific deterrence have differing purposes or aims, the varying aims of deterrence are particularly relevant in occupational health and safety prosecutions in light of the objects and terms of the Act. As Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 said: "... the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace." 74 We consider that the extract 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 of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at [40] - [43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 75 We now refer more particularly to the issue of personal or specific deterrence. For the reasons we have given, we do not accept that the appellant's submissions could have a substantial impact upon the weight to be attached to general deterrence in determining an appropriate penalty in the present case. Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Clayton C Ruby, Sentencing , 5th ed (1999) Butterworths, Toronto at 10. The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. In R v Pickard [1998] VSCA 50, for example, Winneke P and Charles JA of the Victorian Court of Appeal stated (at 4): "An assessment by the judge of the risk of a prisoner re-offending is not a feat which requires any refinement of thought process. If the judge is satisfied that the accused constitutes such a risk that the penalty to be imposed should reflect an aspect of specific deterrence, it will be because he or she has no doubt that the accused poses such a risk. In our view, it is not a question of distinguishing between degrees of risk. It is simply because the judge perceives that the risk is such that the penalty should be one which will deter the accused from re-offending. The greater the judge perceives the risk to be, the more heavily specific deterrence will weigh in the instinctive decision as to the appropriate sentence." 77 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]. 78 We would have considered that this approach was appropriate even before the significant increase in levels of penalty were legislatively imposed effective from 1996. However, that legislative step is itself relevant to this question. As Spigelman CJ held (with the concurrence of Wood CJ at CL and McInerney J) in R v Howland (at 279): "... the community has indicated that it wishes to denounce this conduct in the strongest terms. ... By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern. ... Sentencing has always been based on the acceptance of the proposition that condign punishment of offenders will have deterrent effect on others." 79 We conclude, in the light of the extract from the judgment in R v Howland that the significant increases in penalty which occurred from 1996 are of considerable significance in emphasising the importance of both particular and general deterrence in the sentencing process for offences against the Act and that the approach exemplified by the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited is decisively confirmed by that legislative intervention. It follows that we do not accept the appellant's submissions in relation to the question of deterrence, although the precise weight to be given to that issue is inevitably within the sentencing judge's discretion: Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 at 378. We conclude that in this case, although deterrence in both of its relevant respects is pertinent here, weight should also be given to the particular circumstances of the appellant.

[84]

67 The appeal from the refusal to state a case required the determination of whether the case stated was frivolous and baseless. That, in turn, required a consideration of the point of law there raised. Having recited the passage from Boney that I have earlier set out, the Court stated (at [38] - [46]): 38 It is obvious that, even if taken into account only for the purpose of withholding leniency, offences committed after the offence for which sentence is imposed can result in increased punishment in the sense that the punishment is greater than it would have been in the absence of the later offences. And to say that the 1998 offences were not used adversely to the claimant does not address whether those convictions and sentences were permissibly taken into account for the purpose of withholding leniency, or impermissibly taken into account in order to increase punishment for the offences for which the claimant was being sentenced. To say that the magistrate's sentences were only confirmed or were not increased, or that the extent of the exercise of the sentencing discretion was to determine that the magistrate's sentences were appropriate so that there was not an adverse result for the claimant, is consistent with impermissibly taking the 1998 offences into account. 39 Her Honour's reasoning as appearing from the transcript for 27 October 2000 seems to me to have been as follows. Because she neither increased nor decreased the sentences, but only confirmed them, she could not have erred in taking account of the 1998 offences. She had exercised an independent discretion in that, notwithstanding her view that the sentences imposed by the magistrate were lenient, she considered it appropriate herself to impose the same sentences. (Perhaps this was influenced by double jeopardy considerations of the kind underlying Parker v Director of Public Prosecutions (1992) 28 NSWLR 282). In the result the sentences were not increased, and the 1998 offences therefore were not used adversely to the claimant. There being no properly arguable question of law, the application for a case stated was frivolous. 40 In my opinion this reasoning missed the point. The claimant was submitting that, to the extent to which her Honour gave independent consideration to the sentencing, her Honour had taken into account the 1998 offences, and had done so in an impermissible way. What her Honour said did not meet that submission. She misunderstood the notion of use adversely to the offender, founded on R v Boney , on which the claimant relied. Although the sentences were not increased, there could be use adversely to the claimant if, in determining that it was appropriate to impose the same sentences as the magistrate had imposed, her Honour had taken the 1998 offences into account otherwise than for the purpose of withholding leniency. 41 Were the questions of law in the draft stated case nonetheless frivolous? If her Honour's reasoning on 27 October 2000 was deficient, it is necessary to go to what was said on 1 September 2000. I have already set out the material parts of the transcript and indicated their context of the record of the claimant's criminal history. 42 In my opinion, on a proper reading of the transcript in that context her Honour did impermissibly take into account the 1998 offences: at the least, she arguably did so. 43 Her Honour's consideration of sentencing began with the view that the claimant had been lucky not to have received a full-time custodial sentence at an earlier time. She can not have been entertaining the possibility of leniency. Further, even before being taken through the record her Honour picked out "a mid range PCA in 1998", and saw a pattern of driving while intoxicated and violence when pulled over. She said that "the PCAs [plural] seemed to be coupled with assaulting police officers and refusing to submit to breath analysis". 44 Her Honour's attention was then directed inter alia to the 1998 offences. 45 Her Honour then referred to a continuing disregard of the law in driving while under the influence of alcohol and ultimately violence, and said that she was "looking at these offences in terms of their totality". In the period from 9 September 1996 the only apparent driving-related offences were those committed on 15 December 1997 and the 1998 offences. The claimant had a truly appalling record, but there was only the one earlier offence of driving under the influence of alcohol, the PCA offence with which the claimant was charged on 9 September 1996. Her Honour had not been specifically directed to that offence. It is at least arguable that her Honour had in mind the 1998 offences when she referred to the totality of the offences, and took a more adverse view of the offences committed on 15 December 1997 than she would have done if the 1998 offences had been excluded from consideration; and that she did so not by declining to extend leniency to an offender who, but for the 1998 offences, would have been entitled to leniency. 46 In my view the second question in the draft stated case could not be categorised as frivolous so as to negate the prima facie obligation affirmed in Director of Public Prosecutions v Cassell . The first question was not appropriate, and should not have been submitted to the Court of Criminal Appeal, because Latham DCJ was clearly entitled to take the 1998 offences into account, albeit for a limited purpose. The second question, however, while suffering from ambiguity in "adversely to the appellant", was apt to raise for determination whether her Honour had taken the 1998 offences into account in a way established by R v Boney to be impermissible.