WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales

Prosecutor: Mr B G Docking of counsel Solicitor: Mr G A McCann WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Defendant: Mr J C Agius SC and Mr A J Tudehope of counsel Solicitor: Ms L Aitken Minter Ellison

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR ROBERT SHEPPARD) v THE STATE RAIL AUTHORITY OF NEW SOUTH WALES

Prosecution under s16(1) of the Occupational Health & Safety Act 1983

JUDGMENT [2000] NSWIRComm 179 The defendant, the State Rail Authority of New South Wales (which has been also referred to in the proceedings as "the SRA"), has pleaded guilty to a charge brought by Robert Sheppard, an inspector of the WorkCover Authority of New South Wales, under s 16(1) of the Occupational Health and Safety Act 1983 (the Act). The prosecutor is authorised by s 48 of the Act to institute the proceedings. The defendant is a statutory corporation incorporated pursuant to the provisions of the Transport Administration Act 1988. Section 16(1) of the Occupational Health and Safety Act provides: Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. The offence with which the defendant is charged was that: On the 30 June 1997, the defendant being an employer at King's Cross Railway Station, Darlinghurst Road, King's Cross, in the State of New South Wales, failed to ensure that persons not in its employment and in particular Jamie Lee Peace were not exposed to risks to their health and safety arising from the defendant's undertaking while they were at the defendant's place of work;

and the particulars of the charge were substantially set out in paragraphs 6 and 7 of the agreed Statement of Facts, referred to subsequently in paragraph 4. Mr B G Docking of counsel appeared for the prosecutor in the proceedings. Mr J V Agius SC and Mr A J Tudehope of counsel appeared for the defendant. Factual Background An agreed Statement of Facts relevantly in the following terms (omitting annexures) was tendered by the prosecutor: 4. At all material times and on 30 June 1997 (the said date) the SRA operated railway passenger services at Darlinghurst Road, Kings Cross in New South Wales known as the King's Cross Railway Station (the said Station). Located at the said station are four escalators, which transport passengers between platform and concourse levels.

5. On the said date at about 3.27pm, a young boy, Jamie Lee Peace (the injured person) aged 9 was travelling down escalator No. 2 at the said Station with his mother and friends. 6. As he travelled down the No. 2 escalator the injured person's left foot became jammed between a panel of stainless steel skirting on the left hand side (going down the escalator) and the riser of the step 115 which was behind step 114 he was standing on. Pressure was exerted by a panel of skirting against his left shoe and this pushed his foot against the riser. The injured person turned to his mother and said "my shoe's caught". His mother looked down and saw the injured person's shoe going in rapidly. She tried to free the injured person's foot but was unable to. In the levelling transition area, the riser buckled, allowing the injured person's foot to be pressed into the space under the thread and inside the shear line of the step. His foot was crushed between the treads and it was partially severed. 7. By the time the escalator was stopped, the injured person's left foot was wedged between the step of the escalator, the skirt panel and the comb plate attached to the Floor area at the bottom of the escalator. The injured person was trapped for two hours until the Police Rescue Service could free his foot. His foot was later surgically amputated. 8. The escalator involved in the said accident was an Otis model and was installed at King's Cross Station in 1973. At the time of the accident the injured person was wearing a pair of modern "jogger" style shoes with rubber or compound soles which have a high traction with smooth surfaces. When his shoe came into contact with the smooth surface of the skirting and the riser, the traction created a force pushing his foot against the riser which was too great for him to overcome. 9. On the 1st July 1997, the Prosecutor Robert Sheppard accompanied by Dominic Wu an Engineer employed by WorkCover Authority of New South Wales carried out an inspection of the escalator at the said station. The inspection disclosed the following: i. The subject escalator was switched off and barricaded. ii. The right hand lower landing skirting was damaged and blood was evident. iii. The right hand lower landing skirting joint strip was damaged. iv. Remnants of a sports type shoe were jammed between the two steps and on the steps at the lower landing. v. Blood was evident on the steps near the lower landing comb-plate. vi. All the combs were broken off the lower comb-plate. vii. The right hand inner lower landing balustrade panel had been removed. viii. The right hand lower step light lens panel had been removed. ix. The escalator is an Otis model SA installed in 1973, currently maintained by Railway Services Australia and does not have skirt deflection devices, comb fouling devices or step-sag devices. x. Photographs were taken to illustrate points i to viii.

10. On 2 July 1997, Inspector Sheppard carried out a further inspection of the escalator. Steps and risers were inspected and step gaps measured with a standard "drop gauge". Inspector Shepherd noted that there were no step gaps found to be excessive. Photographs were taken of the escalator and the platform area around it to assist with the accident investigation. 11. On 8 July 1997, Inspector Sheppard carried out a further inspection of the escalator accompanied by Bruce Gill, Senior Section Engineer with WorkCover and noted that step 115 was found to have a scalloped shape dent in the right hand end of the riser (photographs 11 and 12). 12. A further inspection of the escalator was carried out on 9 July 1997. On that occasion Inspector Sheppard measured the escalator step clearances with a drop gauge and risers were inspected for bending damage. Step clearances were found to comply with Australian Standard (AS) 1735.5. One riser (not the subject riser) was found to be bent by a small amount at its left-hand end (photo 8). Step chain track running clearances were inspected and found to be satisfactory. 13. Inspector Sheppard and WorkCover engineer Mr. James Gill carried out another inspection of the escalator on 15 July 1997. The escalator chain components were removed and examined. No damage was found to the chain components. 14. In a statement Raimond Stokmanis, an employee of Rail Services Australia (RSA) and the Acting Manager of Lifts and escalators, stated that part of his job involved the management of maintenance of lifts and escalators owned by the defendant performed by inhouse maintenance and of the administration of the maintenance contract between SRA and RSA. Mr Stokmanis was aware of the accident to the injured person on the said date. 15. Further investigations revealed that there had been a series of similar accidents on Otis "SA" escalators owned by the defendant between the period of 1979 and 1997. 16. The escalator involved in the accident was manufactured and installed by OTIS Elevator Company in 1973, machine number 31NEO648. It is a model designated "SA" and is a special design used in heavy passenger locations. The steps used on this installation are manufactured and assembled to Otis drawing number ASXXX629IF. The risers are manufactured to Otis drawing number ASX454P ('Otis Riser Drawings") and detail curvature towards the lower step. The Otis Riser Drawings: (a) specify two vertical braces welded to the back and set close to the middle; (b) do not specify bracing near the ends; and (c) specify that the riser that rises be bolted to the underside of tread plates at several points and to the yoke lower arms at each end. 17. At the time of the accident, the No. 2 escalator had no skirt switches, no comb-plate switches, no step upthrust switches and no broken step detection devices. Although an application for a Permit to Alter An Escalator was submitted to the Department of Industrial Relations and Technology on 5 June 1987 which included the fitting of skirt panel and step upthrust safety devices, these devices were deleted from the application by letter dated 6 September 1989 from the owners. Had those devices been present at the material time whilst not preventing the accident they may have reduced the severity of the injuries to the injured person and also may have stopped the escalator in time before the injured person's foot reached the combs. 18. Following the accident, the defendant was directed by WorkCover to modify the steps on No. 2 escalator at the said Station so as to eliminate the hazard of the risers buckling. The defendant was also requested to provide the following safety devices: i. Skirt switches to comply with A.S 1735.5 section 6.16 ii. Combplate switches to comply with AS 1735.5 section 6.13 iii. Step upthrust switches. iv. Step demarcation to comply with AS 1735 section 3.6.10.

19. It is alleged that on 30 June 1997, the defendant The State Rail Authority of New South Wales being an employer at King's Cross Railway Station, Darlinghurst Road, King's Cross in New South Wales, failed contrary to the provisions of Section 16(1) of the Occupational Health and Safety Act 1983 to ensure that persons not in its employment and in particular Jamie Lee Peace were not exposed to risks to their health and safety arising from the defendant's undertaking while they were at the defendant's place of work in that It failed to provide and maintain plant namely an escalator that was safe and without risks to health: (a) by failing to eliminate risers on the escalators buckling; and (b) by failing to strengthen the extremities of the step risers on the escalators.

20. At King's Cross Station there was a potential detriment or risk to the health and safety of passengers and in particular the injured person in that there was a risk of footwear entrapment in the escalator's mechanisms and in particular between the riser, skirt and tread of a step. 21. On 30 June 1997, the injured person's left foot was caught in the escalator's mechanisms and was surgically amputated (actual injury). The prosecutor also tendered a number of other documents including applicable Australian Standards; photographs relevant to the statement of facts; a record of interview with Raimond Albert Stokmanis, Acting Manager, Lifts and Escalators, Railway Services Authority; and an edited report from James Bruce Gill, Chartered Engineer and Service Section Engineer of the Lift Services Unit of the WorkCover Authority of New South Wales. Particular reference will be subsequently made to the last two documents. The defendant relied upon evidence from John Harper, Manager of the Safety Improvement Division of the defendant since February 1999. He gave evidence as to the structure of the defendant and as to its restructure in 1996 as a result of the New South Wales Government's Rail Reform Program. At that time the defendant was established in its present form and its corporate functions were divided with some of its functions vested in three other rail entities: the Railway Services Authority ('RSA'); the Freight Corporation; and the Railway Access Corporation. He described the role of the SRA as "the principal railway passenger carrier in New South Wales" and referred to RSA's contract to maintain the SRA's hardware, including escalators at railway stations. As to the accident on 30 June 1997 Mr Harper gave the following evidence as to the respective roles of the SRA and RSA: 13. The Incident occurred to some degree because of the ambiguity of the roles between the SRA and the RSA. The SRA was relying on the RSA for information regarding risks in relation to its hardware but the RSA regarded its role as being limited to maintaining hardware. The SRA has addressed the problem by establishing an Asset Management System which enables the control of maintenance by methods such as: (a) maintenance schedules; (b) maintenance procedures; (c) maintenance programmes; (d) check sheets; (e) maintenance requests; and (f) maintenance history. The SRA believes that the establishment of the Asset Management System will reduce the likelihood of this type of accident happening again with its hardware.

Mr Harper also provided the following evidence by way of background as to the organisation of the SRA: 14. In addition, the SRA requires its station employees to conduct daily inspections of their stations to look for any obvious risks. 15. The SRA has the clear objectives of delivering safe, reliable and cost efficient railway passenger services to the people of New South Wales. 16. The SRA has structured itself along the following functional lines in order to efficiently and effectively achieve these objectives: (a) station management ('CityRail Stations Business Unit'); (b) operational management ('Operations Business Unit'); (c) intercity and interstate passenger operations and management ('CountryLink Business Unit'); (d) passenger rolling stock fleet management and maintenance ('Passenger Fleet Maintenance Business Unit'); and (e) employee administration and support, finance and organisation development and support groups. 17. The Organisational Development Division of the SRA was established subsequent to 1 July 1996 to fulfil a critical need to draw together the disparate functions of quality management, environmental management, rail safety, occupational health and safety and workers' compensation management. 18. At the time of the Incident the SRA employed approximately 9,344 employees. 19. At the time of the Incident there were approximately 30 employees employed by the SRA at Kings Cross Railway Station. 20. At the time of the Incident the employees at the Station worked shift work commencing at either 7 am, 3 pm or 11 pm. 21. The SRA also currently employees 28 employees whose primary responsibilities are directed towards safety. There are 12 full-time employees in the Safety Improvement Division (which includes the Safety Task Force (see paragraph 27) and 16 full-time employees in the Safety Standards and Compliance Division which is responsible for, among other things, auditing and incident reporting. These 2 divisions are responsible for the health and safety of the SRA's workforce, as well as any persons who are exposed to the SRA's undertaking.

Mr Harper's evidence also particularised the occupational health and safety programmes at the State Rail Authority. He referred, for example, to the fact that because of the nature of the SRA and its size, it publishes policies and procedures in respect of safety which it requires its employees to comply with. Managers are responsible for implementing and enforcing the polices and procedures. The SRA supports a strong network of safety awareness within its operations by having in place safety policies, safety manuals, Safeworking Manuals documenting operating procedures dealing with the operational aspects of safety with trains, tracks and emergencies; Safety Task Force and Safety Management Plans; occupational health and safety training and committees, safety audits both internal and externally conducted, first aid trained employees and first aid equipment; and significant occupational health and safety expenditure. Reliance was also placed on its rehabilitation policy introduced in 1995 and applying throughout its operations with trained rehabilitation co-ordinators in all business groups, early initiation of individual rehabilitation plans for injured employees who could return to work in appropriate circumstances on reduced hours and suitable duties.

Reliance was also placed on the defendant's maintaining a substantial expenditure on health and safety. The Safety Improvement Division alone has a budget of $1,000,000 per annum. The defendant was committed to continuing to undertake substantial expenditure on health and safety. Reference was also made to the major safety projects undertaken by the defendant between the period 1997 to 2000 which cost the defendant approximately $5,215,000. In addition, approval would be sought for $20,000,000 for further major safety works for the period 2001 to 2005.

Mr Harper also gave the following evidence, without objection, as to his opinion (and the defendant's corporate view) as to how the incident, the subject of the prosecution, occurred and also as to what the defendant did after the incident: 33. It is apparent that: (a) Jamie Lee Peace was travelling down the No.2 escalator at the Station ('Escalator') with his feet placed on the yellow lines which are marked on the tread on each side of the step of the Escalator. This caused his shoes to run along the edge of the Escalator and his shoe was subsequently caught in the Escalator. A copy of the SRA's Escalator Accident Report and Casualty Report for Jamie Lee Peace are annexed to this affidavit and marked 'XYZ'; and (b) There was safety signage in place on all escalators in use at the time of the Incident, including the Escalator. This signage warned people travelling on an escalator to: (i) stand between the yellow lines; (ii) attend children at all times; (iii) hold handrails; (iv) avoid sides; and (v) keep left. 34. The Escalator was, and continues to be, regularly maintained by the RSA.

35. After the Incident and the WorkCover inspection of the Escalator, the SRA installed the following safety devices on all escalators on the Eastern Suburbs Railway Line as requested by WorkCover: (a) skirt pressure switches to comply with A.S 1735.5 section 6.16; (b) combplate switches to comply with AS 1735.5 section 6.13; (c) step upthrust switches; (d) step demarcation to comply with AS 1735 section 3.6.10; and (e) the step risers on the escalators were reinforced to prevent buckling under pressure from shoes being dragged against skirt panels. 36. This work was done so as to ensure the Escalator, and other escalators, met the 1997 safety standards for new escalators, even though they met the safety standard for the make and model of escalator that they were. The work was carried out progressively and was completed on 19 June 1998. WorkCover inspected and passed all escalators. Mr Harper's affidavit also concluded the following further matters upon which the defendant placed significant reliance: 37. The SRA has audits conducted both internally by SRA auditors and externally by Deloitt Touche Tohmatsu, Department of Transport, Mitch Mitchell & Associates, WorkCover, Richard Oliver International, KPMG and DNV, so as to monitor its safety performance.

38. The metropolitan service of the SRA has always run at a significant loss (approximately $3 billion each year) and yet the SRA has invested an extensive amount of time, research and money toward providing a safe working environment for its employees and a safe environment for its passengers. This is done shown by: (a) the appointment of positions solely responsible for safety functions such as Health Services Officers and Rehabilitation Co-ordinators in every business group;

(b) the advent of the safety improvement group in 1998;

(c) participation in studies on fatigue management issues and the provision of resources to all committees throughout the SRA. The committees include union consultative committees and project committees, for example, a project committee dealing with management safety briefings which look at safety inspections in the workplace and that safety training is adequate.

(d) each business group having weekly safety meetings with management and staff; and

(e) the implementation of a safety inspection program to help identify risks in the workplace. 39. The SRA deeply regrets any incident that occurs on and around its premises and specifically this instance. The SRA believes that it has removed the risk of a similar incident occurring again.

40. The SRA is committed to complying with all of its OHS obligations.

The SRA is always striving to remove the potential for injury to its employees and passengers through training and continually striving to improve policies, procedures and practice so as to provide a safe environment.

Defendant's prior convictions The prosecutor tendered without objection the defendant's record of prior convictions under the Occupational Health and Safety Act and related legislation. Date Act Section Court Penalty 07/05/86 OH&S 15(1) Chief Ind. Mag. 556A 14/08/87 OH&S 15(1) Gosford $500 07/10/87 OH&S 15(1) Chief Ind. Mag. 2,000 04/10/88 OH&S 15(1) Katoomba 2,500 23/10/89 Construction Safety Unknown Chief Ind. Mag. 556A 23/10/89 OH&S 15(1) Chief Ind. Mag. 1,250 12/12/89 OH&S 15(1) Port Kembla 2,750 03/04/91 OH&S 15(1) Newcastle 2,500 02/07/91 OH&S 15(1) Newcastle 2,000 25/03/92 OH&S 15(1) Chief Ind. Mag. 5,000 27/01/93 OH&S 15 Chief Ind. Mag. 3,000 13/07/93 OH&S 15(1) Chief Ind. Mag. 2,000 20/08/93 OH&S 15(1) Chief Ind. Mag. 3,000 04/07/94 OH&S 15(1) Chief Ind. Mag. 3,000 16/12/94 OH&S 15(1) Industrial Court 40,000 16/07/96 OH&S 16(1) Industrial Court 25,000 12/09/96 OH&S 16(1) IRC 35,000 23/10/96 OH&S 16(1) Chief Ind. Mag. 6,000 27/03/97 OH&S 15(1) Industrial Court 125,000 29/07/97 OH&S 16(1) Chief Ind. Mag. 3,500 22/10/98 OH&S 16(1) IRC 40,000 10/05/99 OH&S 16(1) Chief Ind. Mag. 6,000 13/10/99 OH&S 15(1) IRC 30,000 13/10/99 OH&S 15(1) IRC 110,000 13/10/99 OH&S 15(1) IRC 20,000 13/10/99 OH&S 15(1) IRC 20,000 13/10/99 OH&S 15(1) IRC 20,000 27/10/99 OH&S 15(1) IRC 420,000

For present purposes it is necessary only to refer to those convictions since 1991. Since then the defendant has been convicted on fifteen occasions of offences under s 15 and of six breaches of s 16. The fines imposed under the former section have varied from $2,000 to $420,000, and the last fine subject to a severity appeal. They also include five offences dealt with in the one proceeding in 1999 with fines totalling $200,000. The largest fine otherwise for a s 15 offence was in 1997 when a penalty of $125,000 was imposed. The fines for s 16 offences were imposed in 1996 (three), 1997, 1998 and 1999 and ranged between $3,500 and $40,000. Submissions of the parties - prosecution submissions The submissions of counsel for the prosecutor emphasised that the primary factor to be considered when determining the appropriate sentence to impose is the objective seriousness of the offence charged. In the case of prosecutions under the Occupational Health and Safety Act, this proposition has been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence": Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 at 474 - 475. Particularly in cases involving a serious breach of the Act , subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. The objective circumstances relied upon by the prosecutor were: a) The maximum penalty prescribed by Parliament for the offence is $750,000. b) Parliament increased the maximum penalty. c) Main considerations of punishment. d) The nature of the offence in that it involved obvious risks. e) Appropriate measures were not taken, even though such measures were available and feasible. f) The gravity or otherwise of the potential risk to safety flowing from a breach. g) The s 15 and s 16 obligations mean it is essential that an employer should be proactive and not re-active. h) Prior criminal history. i) Not an uncharacteristic aberration. It was submitted that the maximum penalty is $750,000 as a result of s 51A of the Act. The task of the Court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698. Reference was also made to Independent Cargo & Wool Services Pty Limited v Inspector Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994, at 4) as to the area available for penalty being measured between no imposition of a penalty at one end and the maximum at the other.

Reliance was placed upon Parliament's increase in the maximum penalty for this type of offence. The action of the legislature in increasing the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of the offence. The courts are required to give effect to the obvious intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 where reference was made to R v Slattery (1996) 90 A Crim R 519 at 524. The prosecution's submissions continued by referring to the main considerations of punishment. It was said that in fixing an appropriate penalty in the present case, a major objective feature is the need for general deterrence as this is one of the main purposes of punishment. The objects of occupational health and safety legislation as with pollution control legislation require a substantial sentence to punish the defendant, to deter others and to encourage full compliance with the relevant Acts by the defendant and others: Camilleri's Stock Feeds at 701 and R v Rushby [1977] 1 NSWLR 594 at 597 - 598. Attention was also drawn to the approach in Fisher v Samaras Industries Pty Ltd (1998) 82 IR 384 at 388 as to the duty of the Court to ensure a 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. The main considerations of punishment were identified in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 as "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform". It was also submitted that an objective consideration calling for a serious penalty is the nature of the offence which involved obvious risks: WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 97. Further, that the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the respondent: Department of Mineral Resources of New South Wales v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. This is tested objectively by asking whether or not the ordinary jury person or reasonable observer would have foreseen the risk. The very purpose of the Occupational Health and Safety Act was to introduce (and interpolating, maintain) safe working practices so that accidents are prevented and it was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks: WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting (unreported, Bauer J, 13 April 1995 at 17 - 18). It will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Lawrenson Diecasting Pty Limited at 476. Reliance was also placed on, as going to the objective seriousness of the offence, the availability of simple and straightforward steps to remedy the defects in the system as considered in WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, 25 February 1994, at 12) and Department of Mineral Resources of New South Wales v Kembla Coal and Coke Pty Ltd at 27. Whilst it was accepted that the response by the defendant after the accident was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendant to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system. The prosecutor also relied on the obligation of an employer to be proactive and not reactive. It was submitted that the relevant terms of the statute impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk of safety has arisen and requires remedy. They also limit considerably the ability to rely upon previous experience as to either liability or culpability: Nelmac Pty Ltd at 210. The statutory obligations mean that it is essential that an employer should be proactive and not reactive; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare; relying on Nelmac Pty Ltd at 210 and the judgment of Hill J in WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. The Act requires a proactive approach on the part of an employer to safety particularly in an industry which is very dangerous or perhaps even inherently unsafe. It was submitted that the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the respondent : Lawrenson Diecasting Pty Limited at 476. The gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of penalty. Nevertheless, the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety : Tyler v Sydney Electricity (1993) 47 IR 1 at 5 and Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 at 456. As to the prior history of convictions of the defendant, it was argued that it is well established that the criminal history should not lead to the imposition of a penalty which is disproportionate to the seriousness of the offence, but may be relevant to show that the instant offence has manifested a continuing disobedience of the law or that the offence was not an uncharacteristic aberration: Lawrenson Diecasting Pty Limited at 477. In Camilleri's Stock Feeds , the Court of Criminal Appeal found that a factor which indicated the seriousness of the offences was the surrounding circumstances also suggested that the offences charged were not uncharacteristic aberrations. It was held at 700: The surrounding circumstances also suggested the offences charged were not uncharacteristic aberrations. The evidence indicates that, from 1986 until shortly after the offences charged, similar odours were emitted every second night and most weekends for long periods of time. Such circumstances are not inconsistent with the defendant's plea. As such they are properly to be considered by this Court. Indeed one may suppose, that in a case such as this, such a history of circumstances sufficiently corresponds to what was described in Veen v The Queen (No 2) (at 477) so that the offences to which the appellant pleaded guilty may not be viewed as 'uncharacteristic aberration(s)'. It was considered by the prosecutor that the appropriate subjective circumstances which might appropriately be taken into account in mitigation were as follows: a) Plea of guilt: the relevant principles are conveniently collected in Lawrenson Diecasting Pty Limited at 472 - 474. The Full Bench confirmed that the extent of the reduction or "discount" in penalty which will be afforded in consideration of subjective features of a case will depend on the nature of the subjective factors and the circumstances of the case: at 474.3. b) Co-operation with authorities such as WorkCover is an important matter in this area of the law: Camilleri's Stock Feeds at 700. c) The measures introduced to overcome the deficiencies. d) The existence of settled safety procedures and instructions is a factor which may mitigate the seriousness of the offence: Department of Mineral Resources of New South Wales v Kembla Coal and Coke Pty Ltd at 25 and cases cited therein. e) The size of the defendant's workforce, the number of work sites, and the nature of the work carried out by the defendant's employees is a matter that has been taken into account in assessing penalty: WorkCover Authority of New South Wales (Inspector Glen David Gordon) v State Rail Authority (unreported, Marks J, 21 March 1997, at 9).

Submissions for the defendant Counsel for the defendant made it clear that nothing said in the defendant's submissions should be taken to diminish its real contrition and regret. The submissions are offered in explanation and not excuse. It was accepted that little could be said about the objective circumstances of the accident other than: a) When the escalators were first introduced by the State Rail Authority they complied with all of the appropriate standards.

b) The propensity for injury that this incident evidences did not result from decrepitude of the system in place. This is not a failure to maintain the escalators. This is confirmed by the tests carried out by WorkCover and independent engineers.

c) There were warning signs in place. Those warning signs are clearly shown in the photographs 1, 2 and 3 of Exhibit F.

d) This accident occurred because of a failure to modify the escalators at Kings Cross Railway Station consequent upon the proliferation of the use of sports shoes as opposed to conventional footwear. Reliance was also placed upon the steps taken by the defendant immediately after the accident. The defendant's response was immediate. The escalator was decommissioned. There was co-operation with WorkCover during investigation of the incident and in the implementation of the remedies proposed. It is important to note, it was submitted, that WorkCover could not carry out its work effectively and efficiently without co-operation during investigation and in the implementation of remedies. The remedial action recommended and carried out was significant. Additionally, all escalators on the eastern suburbs line were modified. All of the recommendations by WorkCover concerning remedial work on the escalator at Kings Cross Station were implemented at Kings Cross Station and all other stations on the eastern suburbs line. Emphasis was placed on the defendant's entry of an early plea of guilty which is required to be taken into account on sentence by virtue of s 439 of the Crimes Act 1900. The plea is evidence of the defendant's deep regret and remorse and entitles it to a substantial reduction in penalty. The subjective features relied upon by the defendant included the fact that there was in place at the time and there are now, programs that clearly demonstrate the SRA's very real commitment to occupational health and safety. Senior Counsel also submitted that the extensive evidence of Mr Harper demonstrated this as well as that considerations of occupational health and safety are at the forefront of the defendant's activities, and continued: c) State Rail has taken positive steps to improve the efficacy of its occupational health and safety system. d) The State Rail Authority was reformed following the implementation of the New South Wales Government's Rail Reform Program on 1 July 1996 and many of its former functions were divided between and vested in three new responsible authorities. Rail Services Australia was responsible at the time of the subject accident for the management of maintenance of lifts and escalators owned by the State Rail Authority. The State Rail Authority believed that Rail Services Australia would, in the course of its management duties advise it of any need for repair or reconstruction of its escalators. Clearly the SRA was in error here. e) The State Rail Authority is a very large organisation with approximately 9,344 employees. It is responsible for every railway station within the Sydney metropolitan area. Because the nature of the enterprise involves multiple work sites and a large number of employees, the difficulty of implementing and monitoring safety practices is necessarily increased. f) The State Rail Authority is responsible for the transportation of huge numbers of passengers each day. Significantly there have been no other prosecutions arising out of injuries to passengers or customers. g) The State Rail Authority operates at a loss of approximately $3 billion each year. Despite this major safety projects have been undertaken by the State Rail Authority between 1997 and 2000 at a cost of approximately $5,215,000 and further projects are planned between the years 2001 and 2005 at a cost of $20,000,000. The extraordinary losses incurred by the State Rail Authority bring into sharp focus the expenditure on and significant dedication to occupational health and safety. Although it was accepted that the fact that the defendant operated at a significant loss was not material to the fine that should be imposed, it was relevant that the defendant was not a "profit driven" organisation, and the fact that it has restrictions on its ability to raise revenue has not affected its commitment to occupational health and safety. It was submitted that these considerations provided the context in which the $5 million the defendant has expended on safety since 1997, and the $20 million it intends to spend in the next five years, should be seen. As to general deterrence and in considering the defendant's prior record, Senior Counsel submitted that most of that record related to the time when the defendant was a much larger organisation employing approximately 22,000 people and concerned with the rail infrastructure for the whole of the State. It would be unfair, therefore, for the whole of the record to be visited on the defendant with its different character. The defendant also relied upon the report of James Bruce Gill which had been tendered by the prosecution. His report referred to inspections carried out on the escalator at the Kings Cross Railway Station, and the tests and comparisons with other escalators that were undertaken to determine the cause of the accident. Mr Gill's opinion as to the relevant factors that may have contributed to the accident can be summarised as: a) A reduction in the number of gussets on the Kings Cross Station escalator as compared with earlier models (gussets being used to enhance rigidity of the escalator steps); b) No enamel friction reduction coating applied to the step risers as had been done on earlier escalator models; and c) The increase in similar types of accidents on escalators in recent times coinciding with the change in footwear styles, particularly from leather soled shoes to rubber soled sporting shoes now frequently worn. A mechanical designer 20 years ago could not be expected to predict this change. Mr Gill also concluded that the most likely cause of the accident was the frictional combination of the rubber soled sporting shoe on the stainless steel escalator step, and added:

The developed force from its effect when applied at the extremity of the escalator riser and driven by the relative motion between the escalator steps and the stainless steel skirt eventually caused a buckling of the riser. Once the end of the riser had buckled the victim's foot became wedged between the step riser and the escalator skirt. Being firmly entrapped the victim's foot was driven onto the combplate at the bottom landing before the escalator could be stopped. In this regard whilst making clear that in no sense was the defendant blaming the injured boy for the incident Senior Counsel for the defendant submitted: This is not the worst case. This is not a case where injuries result from a failure to maintain, where cheap second-grade equipment is being used, or where no care has been taken at all for the care and safety of the customers. Here we have evidence from Mr Gill that the failure to modify the system was, in this case, brought into sharp focus by the proliferation of the use of sports shoes. Senior Counsel for the defendant was granted leave to make further submissions as to the construction of s 51A of the Act in relation to the issue as to what was the maximum penalty for the offence in the light of the defendant's prior convictions. It was accepted, however, that the Court would be bound by the then reserved judgment in the appeal by Capral Aluminium Limited v WorkCover Authority of New South Wales. The judgment in that matter has now been delivered: see Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 and it has been held that in the defendant's circumstances the maximum penalty for an offence under, inter alia , s 16 of the Occupational Health and Safety Act is $750,000. In anticipation of the various possible outcomes in the appeal, the defendant made the following submissions. It was submitted that if s 51A provides to the Court a discretion to increase the maximum amount of the penalty for the offence, it should not be exercised for the following reasons: a) There have been no previous offences for injuries to members of the public/commuters. Nor have there been any offences akin to the offence with which the court is now dealing.

b) State Rail Authority's record prior to July 1996 relates to a period of time when the State Rail Authority was much larger (22,000 employees) as can be seen in the cases and when the SRA's field of operations was much larger than it has been since the restructure. Viewed in this light the record although lengthy is less damning than if its field of operations had been restricted.

Senior Counsel emphasised that the Court should take note of the fact that there have been no previous offences for injuries to members of the public or commuters, nor were there any offences akin to the offence with which the Court is now dealing. The defendant, it was said, has not exhibited in this offence an attitude of disobedience or defiance which would cause the Court to invoke the provisions of s 51A. As to how the Court should approach sentencing should it be decided contrary to the defendant's submission that the circumstances are such that there is no discretion and the higher penalty provided by s 51A applies, it was submitted that there is no need for a two-staged approach to sentencing. The approach previously adopted by the Court in applying Baumer v The Queen (1988) 166 CLR 51 was appropriate.

On 17 August 2000, after judgment was reserved in this matter, the Court of Criminal Appeal ( Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ) delivered judgment in R v Thomson; R v Houlton [2000] NSWCCA 309, the guideline judgment as to pleas of guilty in criminal proceedings. The guideline adopted and other pertinent observations are set out in the judgment of the Chief Justice as follows: 160. The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. 161. The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of Jurisic and Henry included a plea of guilty. That was not the case in Wong in which the range encompassed relevant matters, including a plea. In each of Jurisic at 231 and Henry at [162], the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons.

162. The discount range propounded for a guilty plea based on utilitarian considerations is not intended to result in any change in the level of sentences generally. Nothing in these reasons should be construed as indicating an opinion that trial judges have not in fact been giving appropriate consideration and weight to pleas in such a way as to distort the general level of sentences. The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. Insofar as existing sentencing practice has been to allow discounts for pleas up to 35 percent, encompassing all relevant matters, such a practice remains appropriate. The guideline is to be considered with the relevant provision of the Crimes (Sentencing Procedure) Act 1999 which replaced s 439 of the Crimes Act 1900 and which provides: 22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed.

(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.

Also relevant is the approach followed and applied many times by this Court in R v Winchester (1992) 58 A Crim R 345 where Hunt CJ at CL said, at 350: A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p 12. The considerations cited from R v Winchester are to be applied in this matter. The plea should be considered as an early plea; and although the Court does not find that a conviction would have been inevitable in the absence of a plea, the matter should be approached on the basis that a conviction was likely. I consider it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton in determining the fine that should be imposed on the defendant in these proceedings. Subject to that consideration, the principles that should be applied are clear and well settled: see, for example, Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales at 474 - 476 and Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at 21 - 24. There was no real difference between the parties as to the principles. It is appropriate to also have regard to the maximum penalty for this offence of $750,000 and the need to give effect to the intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner, manifested in the most recent significant increases in penalties under the Act. An important consideration in assessing the gravity of the offence is the admitted and agreed fact that there have been a series of accidents similar to that the subject of these proceedings on the same or similar model escalators owned by the defendant between 1979 and when the accident occurred in 1997. Some confirmation of this occurs in Mr Stokmanis' record of interview where he refers to some 14 damaged risers coincidentally stored at the Kings Cross Station, the damage apparently caused by various factors including footwear entrapment. In relation to that consideration it is also relevant that an application submitted to the then Department of Industrial Relations and Technology in 1987 to fit certain safety devices did not proceed and although if those devices had been present at the time of the accident, they would not have prevented it, they may have reduced the severity of the injuries to the injured boy and may have stopped the escalator in time before his foot reached the combs, thus making less likely the amputation which resulted from the accident under consideration (see paragraphs 15 and 17 of the Statement of Facts). The malfunction of the escalator which led to the injuries suffered by the injured person was the buckling of the riser which allowed the injured boy's foot to be pressed into the space under the tread and inside the shear line of the step. This led to his foot being crushed between the treads, being partially severed and the subsequent amputation. That this caused the injuries is confirmed by the report of the engineer, Mr Gill. These matters provide the perspective in which the failures identified in the charge are to be considered which relate to a failure to eliminate risers on the escalators buckling and failure to strengthen the extremities of the step risers on the escalators. They also provide the considerations against which the assertion of the defendant that it was, in effect, "let down" in its obligations by the other statutory body operating in the public transport system, the Rail Access Corporation, are to be tested and considered. The difficulty with that reliance as to this accident which occurred in 1997 was that the restructure of the various authorities and the splitting of the functions between them did not take place until 1996. This was well after the time when the incidence of such accidents appeared to be reasonably prevalent and the defendant should have known of the need to take relevant preventative steps and to ensure they were taken. The gravity of the offence must be, therefore, considered to be very significant. It should be concluded that, although the breach did not occur from a failure to maintain generally the relevant equipment and although the defendant expends considerable effort and money as to safe working and safety generally, the effect of the failure to modify the equipment has to be regarded as clearly foreseeable and its liability for the gravity of the breach did not alter significantly because of the restructure of the rail corporations or transfer of functions from the defendant the year before the offence was committed. The negligence of the defendant is significant. It resulted in injuries and disabilities which were clearly preventable. As observed in Capral Aluminium Limited at 71 - 79, except in rare situations, appropriate weight has to be given to both specific and general deterrence in dealing with breaches of the Occupational Health and Safety Act . Although weight should also be given in these proceedings to the submissions made on behalf of the defendant as to this issue, that should not result in the need for deterrence being disregarded. It was also observed in Capral Aluminium Limited at 94: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of the penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.

The nature and extent and seriousness of the injury suffered in this matter plainly exemplifies the gravity of the offence. The defendant is entitled to the benefit of the various subjective factors which it has relied upon, including the active consideration it gives to the question of safety, and the significant amounts of expenditure it makes in relation to those issues. I do not consider that it is relevant that the defendant operates at a loss of significant proportions each year. Although it is necessary in principle to have regard to the means of the defendant that issue is not, as the defendant accepted, of weight in this matter. On the other hand, it is pertinent that there have been no previous offences for injuries to members of the public or commuters, even though the defendant's lengthy record of convictions otherwise is a matter of great significance and of significant concern. Its record, however, must be considered, as the defendant submits, in the context of the whole of its circumstances including the different nature of the defendant in 1997 when the offence occurred, the large number of employees the defendant employed for most of the relevant time, and when regard is had to the approach of Marks J in the judgment in WorkCover Authority of New South Wales (Inspector Gordon) v State Rail Authority (unreported, 27 March 1997, at 6 - 7) that in assessing penalty it may be appropriate to take into account the size of the defendant's workforce, the number of work sites, and the nature of the work carried out by the defendant and its employees. I respectfully agree with that approach. Nevertheless, regard has to be paid to the fact the offence involved a member of the travelling public who was travelling with his mother in a quite routine way with an entirely reasonable expectation that he would be able to use not only the train service conducted by the defendant but also the normal means of entering and leaving the defendant's premises, without any likelihood of any injury, least of all one of the seriousness which occurred. It has been observed in previous judgments of this Court, that experience in occupational health and safety matters indicates that in many cases it is possible for an employer charged under the Act to provide tangible confirmation of contrition by support and assistance rendered to injured employees or to the families of victims of fatal accidents (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) at 43; WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd [2000] NSWIRComm 40 at 29; Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 at 17; and WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57 at 35). I do not consider that support and assistance to an injured person who is not an employee is in any different situation. Senior Counsel for the defendant advised the Court that it has taken positive steps to deal with the injuries and disabilities that have been suffered by the injured youth and would have taken appropriate steps to resolve the proceedings that have been instituted on his behalf but that has not been feasible in light of the plaintiff's particular circumstances. It was made clear that that situation has not, however, arisen because of any lack of preparedness in relevant respects on the defendant's part. I will act on the basis that the defendant's approach demonstrates remorse and contrition of an appropriate and tangible kind since the Court may conclude, on the basis of what was said by Senior Counsel, that the defendant will deal with those proceedings in an appropriate way, subject to its obligations to act appropriately with public funds. I consider that the defendant's plea should be accepted and a conviction recorded. Having regard to all the considerations referred to, including the defendant's early plea of guilty, and the approach required by the guideline judgment in R v Thomson; R v Houlton , the appropriate penalty should be $200,000 after allowing a discount in the order of one third, having regard to the utilitarian value of the early plea (which I accept was made at the earliest possible time); the contrition of the defendant; the steps taken by the defendant to remedy the defective equipment and to rectify the communication problems as to safety between the various statutory bodies; and its assistance to the authorities. As to the last aspect, I do not consider that it should carry as much weight as it might carry in the usual sentencing context. Although it is relevant in cases such as the present, nevertheless there is no direct comparison in a major corporation, whether public or private, cooperating with the WorkCover Authority in the context of a breach, or possible breach, of the occupational health and safety laws as compared to a situation where a criminal apprehended by police renders assistance to them in relation to, for example, the apprehension of co-offenders. Conclusion and Orders The Court accordingly makes the following orders: 1. The defendant is convicted of the offence alleged in Matter No IRC 3369 of 1999 under s 16(1) of the Occupational Health and Safety Act 1983. 2. The defendant is fined the sum of $200,000, with a moiety of that fine to the prosecutor. 3. The defendant shall pay the prosecutor's costs of these proceedings in a sum as agreed or, in default of agreement, as assessed. _____________________

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