WorkCover Authority of NSW v DHL Exel Supply Chain

DEFNDANTS: PARTIES: DHL Exel Supply Chain (Australia) Pty Ltd

OH&S - guilty pleas - incident occurred when worker fell from height - evidence in each proceedings not to be evidence in others - assessment of penalty - objective seriousness - general & specific deterrence - mitigating factors.

Freight distribution company - occupier of property - offence objectively serious - evidence that defendant had become aware of risk, yet did not take steps reasonably available to remove it - failed to identify equipment that could have been utilised - general deterrence taken into account - specific deterrence mitigated by remedial steps taken and general commitment to OH&S - monetary penalty applied.

CATCHWORDS: Transport Company - principal contractor - aware of risk - objectively serious - undertaking less immediate to other two defendants - principal of parity - monetary penalty imposed.

Employer of injured worker - understanding that employees not to undertake actual work carried out - general manager identified risk, complained to principal contractor and eventually terminated contract when nothing done - charge failing to control risk of injury previously identified - breach objectively serious - employer did not bring about cessation of work immediately - less serious than other two defendants - monetary penalty imposed.

OH&S - essential elements of offence - discrepancy about height at which incident took place - whether guilty plea to application for order constitutes an admission to all factual circumstances - role and duties of prosecutor. HELD: essential element was risk of falling from height - extent of height part of factual matrix within which offence occurred - even where guilty plea entered, it is always necessary for fact finding exercise to be undertaken in terms of sentencing process - approach of prosecutor contrary to prosecutors obligation - costs reserved.

Occupational Health & Safety Act 2000 LEGISLATION CITED: Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales Rules of the New South Wales Bar Association

Boucher v the Queen (1954) 110 CCC 263 CASES CITED: Maxwell v the Queen (1195 - 1996) 184 CLR 501 R v Palu [2002] NSWCCA 381

29/01/2007; Written Submissions: HEARING DATES: (Prosecutor - 16/02/2007; Defendants (20/02/2007 & 8/03/2007); Reply - 13/03/2007)

PROSECUTOR Mr B Docking of counsel: SOLICITOR: Ms N Rouillon Moray & Agnew Solicitors

DEFENDANT (in matter No 652) Ms P E McDonald of counsel SOLICITOR: Ms M O'Brien Baker & McKenzie Solicitors amd Attorneys LEGAL REPRESENTATIVES:

DEFENDANT (in matter No 653) Mr G W McGrath of counsel SOLICITOR: Mr T Johnston Surry Partners Lawyers

DEFENDANT (in matter No 654) Mr M L Shume of counsel SOLICITOR: Mr R Hassall Sparke Helmore Lawyers

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Inspector Mark Morganthal of WorkCover Authority of NSW v DHL Exel Supply Chain (Australia) Pty Ltd Inspector Mark Morganthal of WorkCover Authority of NSW v McGill Holdings Pty Ltd

Prosecutions pursuant to s 8(2) of the Occupational Health and Safety Act 2000

Inspector Mark Morganthal of WorkCover Authority of NSW v DTC Pty Ltd

Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000

1 These proceedings concern three prosecutions instituted by the prosecutor Inspector Mark Morganthal of the WorkCover Authority of New South Wales against three discrete defendants alleging breaches of the Occupational Health and Safety Act 2000 ("the Act"). Each of the defendants has pleaded guilty and this judgment deals only with the question of penalty. Each of the prosecutions arises out of and concerns injuries sustained by Wayne Gregory Reeves, an employee of the defendant DTC Pty Ltd ("DTC"), on 7 April 2004. Mr Reeves was injured whilst endeavouring to secure goods that had been loaded into a trailer by employees of the defendant DHL Exel Supply Chain (Australia) Pty Ltd ("Exel") using pallets at freight hub premises occupied by that company at Arndell Park. The trailer was described as a 45-foot trailer with "mezzanine drop decks". It seems that at the time that he was injured, Mr Reeves had climbed onto the trailer for the purpose of endeavouring to secure the load using straps. He fell from a height the details of which became a matter of contention but which was, in general terms, said to be between 1.12 metres and 2.74 metres from the ground. It was the intention of Mr Reeves to drive the vehicle, to which the trailer was attached, to Brisbane and deliver the load being carried there as part of an arrangement by which his employer DTC had sub-contracted for this work to be carried out pursuant to a head contract arranged between Exel and McGill Holdings Pty Ltd ("McGill"). 2 For completeness I should note that at the time that the offence occurred, the defendant Exel was known as Exel (Australia) Logistics Pty Ltd, its name having been changed after the proceedings were commenced to the name by which it is now known. 3 Each of the three proceedings was heard concurrently. However, the prosecution evidence with respect to each of the defendants and the evidence of each of the defendants were confined to the particular proceedings so that the evidence in one did not become evidence in any other of the proceedings. For this reason, it will be necessary to deal discretely with each of the three proceedings, although it will be possible to deal with such of the evidence as was common to each of them in an abbreviated form. 4 I shall adopt the same approach to the assessment of penalty with respect to each of the defendants. The commencement point entails an examination of the objective seriousness of the offence. Furthermore, it is necessary to take into account both the general deterrent effect as well as the specific deterrent effect of any penalty that is imposed. As against these matters, the defendants in general terms are entitled to have taken into consideration in their favour a number of matters, relevant for the purpose of these proceedings being: the fact that there are no prior convictions, general commitment to occupational health and safety matters both before and after the incident, expressions of contrition and remorse, the utility of an early plea of guilty, co-operation with the prosecutor in and about an investigation of the incident, steps taken after the incident to remedy any defect in process or equipment and the fact that the defendant is a good corporate citizen. 5 In terms of the assessment of penalty and the sentencing process, I can observe with respect to each of the defendants that none of them had any prior convictions for an offence under the Act or any predecessor Act, each of them pleaded guilty at the earliest appropriate time, each of them assisted the prosecutor in and about his investigation of the incident, each of them expressed contrition and remorse for what occurred, each of them had, albeit to varying degrees, a commitment to occupational health and safety matters prior to the incident and each of them has taken significant steps after the incident to improve and enhance a commitment to compliance with occupational health and safety obligations. 6 The prosecutor sought a moiety of any penalty and an order for costs. Such orders were not opposed by any defendant. The maximum penalty applicable to each of the proceedings is $550,000. 7 The defendant, DTC was charged with a breach of s 8(1) of the Act which is in the following terms: 8 Duties of employers

(1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 8 The defendants Exel and McGill were each charged with a breach of s 8(2) of the Act which is in the following terms: 8 Duties of employers

(2) Others at workplace An employer must ensure that people (other than the employees of the employer) 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. 9 Each of the prosecutions was commenced with the filing of an application for order, which, in some cases, was ultimately amended. Each of the applications for order alleged a breach relevantly of s 8(1) or s 8(2) of the Act and contained particulars. In each of the particulars there was an allegation that the employee of DTC was working at a height of about 2.5 metres above ground level whilst attempting to secure the freight with straps when he slipped and fell to the concrete ground surface. For the purpose of the hearing of each of the charges against each of the defendants there was tendered into evidence an agreed statement of facts. Initially, there was some difference in the content of each of the agreed statements of facts with respect to the distance that the employee of DTC had fallen. Each of the statements of facts had been the subject of agreement between the prosecutor and each of the separate defendants. The agreed statement of facts in the DTC proceedings referred to the employee of DTC having fallen a distance of approximately between 1.12 and 2.5 metres. The others referred to the employee having fallen a distance of in excess of 2.5 metres. When all of the counsel appearing for all of the defendants became aware of this discrepancy for the first time during the course of the proceedings, there ensued discussions with counsel for the prosecutor and those instructing him. As a result of those discussions, each of the agreed statements of facts was suitably amended so that all of them referred to the fact that the employee concerned had fallen a distance "of approximately between 1.12 and 2.5 metres." 10 Nevertheless, counsel for the prosecutor submitted that the defendants who had pleaded guilty to the application for order had pleaded guilty to factual circumstances that had involved a fall by a person of a distance in excess of 2.5 metres. Not unexpectedly, counsel for the defendants took an opposing view. 11 In written submissions, the prosecutor asserted that it was open to the Court to find that the decision to enter a plea was made freely and with the benefit of legal advice, each defendant pleaded guilty to all of the material in the application for order, each plea was made without qualification and that each plea "was a solemn admission" of all of the essential elements of the offence or all of the ingredients of the offence or an element of the offence. It was said that one of the essential elements of the offence was the height from which the employee had fallen as set out in the application for order. The submissions were supported by an extensive reliance on a number of authorities. 12 It is well established that in general terms a plea of guilty "will constitute an admission of all the essential elements of the offence." (Per Dawson and McHugh JJ in the High Court of Australia in Maxwell v the Queen (1995 - 1996) 184 CLR 501 at 510). 13 I agree with submissions made on behalf of Exel that the essential elements of an offence under s 8(2) consist of the following: (a) the defendant was an employer; (b) there were persons not employees exposed to a risk to their health or safety; (c) the risk arose from the conduct of the defendant's undertaking; (d) the exposure to risk was at the defendant's place of work. 14 The essential elements of the offence under s 8(1) are: (a) the defendant was an employer; (b) persons who were employees of the employer were exposed to a risk to their health, safety or welfare; (c) that risk arose whilst those employees were at work. 15 In the circumstances of all of these proceedings, the risk to which the person was exposed was the risk of falling from a height. 16 The extent of that height was a matter to be taken into account as part of the factual matrix within which the offences occurred. It was not, in my opinion, an essential ingredient of any of the offences and the defendants cannot be said to have agreed that the injured person was liable to fall at a height of more than 2.5 metres merely by entering a plea of guilty. 17 Even after the entry of a plea of guilty, there is always a necessary fact finding exercise to be undertaken in terms of the sentencing process. So much was adverted to by Howie J in the New South Wales Court of Criminal Appeal in R v Palu [2002] NSWCCA 381. Levine and Hidden JJ agreed with the judgment of Howie J. At [21], his Honour said: "It behoves the parties, especially after a "plea bargain", to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP (1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP , above at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court. So it was in the present case." 18 Even if I were incorrect in the conclusion which I have reached, and, in some way, each of the defendants was held to have pleaded guilty to an offence including an admission that the person concerned fell from a height of more than 2.5 metres, for the prosecution to persist in proceeding on this basis would, in my opinion, be inappropriate. This is because, clearly, the prosecutor had agreed after the entry of the pleas of guilty that, in effect, the relevant and appropriate factual basis upon which the proceedings were to go forward was that the person concerned fell a distance of between 1.12 and 2.5 metres. Counsel for both Exel and McGill raised concern at the approach of the prosecutor in endeavouring to have each of the defendants convicted on a factual basis which was different from that contained within each of the agreed statements of facts. 19 Counsel for McGill referred me to Rule 62 of the Rules of the New South Wales Bar Association, which requires a prosecutor to fairly and impartially seek to assist a court to arrive at the "truth". It was suggested that it was inconsistent with the prosecutor's duty to press a version of material facts that was inconsistent with that which had been agreed with each of the defendants. 20 Both counsel for McGill and Exel submitted that the prosecutor had breached his duty to the Court. 21 The role and duties of the prosecutor have been described in Prosecution Guidelines issued by the Office of the Director of Public Prosecutions, New South Wales. The Guidelines state in part: "A prosecutor is a 'minister of justice'. The prosecutor's principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness."

The Guidelines emphasise that, in effect, a prosecutor is representative of the community. In discussing the prosecutor's role, there is extracted a judgment of Rand J in the Supreme Court of Canada in Boucher v the Queen (1954) 110 CCC 263. At 270 his Honour said: "It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings." 22 I agree with the submissions of counsel for the defendants that the approach taken by the prosecutor in these proceedings is contrary to the obligations which one would normally find imposed on a prosecutor in criminal proceedings before the Supreme, District and Local Courts. 23 It might, perhaps, be said that the prosecutor in these proceedings is representing the WorkCover Authority of New South Wales and that, to that extent, he is not acting as a representative of "the community" or "the State" as would apply in general criminal proceedings. However, the WorkCover Authority of New South Wales may be characterised as the instrumentality of government charged with the responsibility of administering the laws relating to occupational health and safety in New South Wales. As I understand the activities of the WorkCover Authority, they include not only general administration of the relevant legislation, but also investigation of breaches and the prosecution of breaches. To some extent, it might be thought that the dual role of investigator and prosecutor might qualify the nature and extent of the role and duties of the prosecutorial role. On the other hand, there are two factors that, in my opinion, dictate a contrary conclusion. Firstly, it is quite clear that when a defendant is convicted of a breach of the Act, this results in a criminal conviction. Whether in the case of an individual, for example, it is a conviction of the kind that finds its way onto the records of immigration officers at international airports or whether it is an offence which needs to be declared on entry into the United States is not to the point. It remains a criminal conviction and should attract the same odium as applies, for example, to customs and other offences that are created by statute. The second point is that since prosecutions for breaches of occupational health and safety legislation in New South Wales commenced shortly after 1983, there has been a practice for the prosecutor, the WorkCover Authority of New South Wales, to seek and be granted a moiety of any penalty. It is necessary to counter any suggestion that the WorkCover Authority of New South Wales in its dual role as investigator and prosecutor is motivated to any degree by a desire to enhance its own revenue through the collection of increased penalties. For this reason also, in my opinion, it is essential for the proper and fair administration of justice for prosecutions for breaches of the Act to be conducted in a manner entirely consistent with the duties and obligations of prosecutors in dealing with criminal prosecutions under the general law. 24 For the reasons which I have advanced I reject the submissions of the prosecutor that in some way these matters should be determined by reference to a factual situation which is different from that contained within the agreed statements of facts. I conclude that in so submitting, the prosecutor has acted inappropriately and contrary to well-established principles of law. 25 The debate about this matter was conducted substantially through written submissions after the completion of the hearing. Because I have upheld the position adopted by the defendants and rejected that taken by the prosecutor, it is arguable that the costs of this part of the proceedings should not be borne by the defendants. I shall reserve costs accordingly. 26 I now come to deal with each of the discrete matters. Inspector Morganthal v Exel (No. IRC 652 of 2006)

27 An agreed statement of facts became evidence in the proceedings, which also sets out in sufficient terms the charge to which the defendant pleaded guilty. The agreed statement of facts was in the following terms: 1. At all material times the prosecutor was an inspector duly appointed pursuant to clause 11 schedule 3 of the Occupational Health & Safety Act, 2000 under division 1 of Pt 5, and empowered under s106(1)(c) of the said Act to institute proceedings in the within matter. 2. At all material times the defendant, EXEL (AUSTRALIA) LOGISTICS PTY LTD [ACN 071 798 617] ('the defendant') a company duly incorporated in New South Wales with its registered office at 287 Coward Street, Mascot in the State of New South Wales. 3. At all material times the defendant was an employer. 4. At all material times the defendant conducted the business of freight distribution from its freight hub facility premises at 227 Walters Road, Arndell Park in the state of New South Wales ('the premises'). 5. For approximately 14 months prior to 7 April 2004 the defendant had retained McGill Holdings Pty Ltd [ACN 002 591 433] t/as McGills Transport ('McGills Transport') to conduct the work of interstate carriage of freight from the premises to various destinations in Australia. The contract with McGills Transport involved the provision by McGills Transport of transport vehicles which could conduct the work which involved the carriage of mainly pharmaceutical products manufactured by Johnson & Johnson for delivery to warehouses in different states. 6. McGills Transport provided approximately 25 trucks per week on average in pursuance of the service it provided to the defendant and conducted the carriage of freight as required by Exel from the premises. 7. In conducting the work pursuant to its contract with the defendant, McGills Transport utilised its own employees and trucks but also engaged a number of sub-contractors to carry out part of its work for Exel. 8. In approximately August/September 2003 McGills Transport made arrangement with another transport operator, DTC Pty Ltd [ACN 010 619 593] ('DTC'), to conduct the line haul services from Sydney to Brisbane in respect of the work for the defendant. 9. DTC agreed with McGills Transport to provide two of DTC's trucks, each having a 45 foot mezzanine deck trailer, in order to provide the service required by McGills Transport which involved an express transit of goods five nights per week from the premises. 10. DTC commenced the work pursuant to the arrangement with McGills Transport in or about December 2003. 11. At all material times DTC employed truck drivers, including Wayne Gregory Reeves ('the worker'), to conduct the line haul service work pursuant to its arrangement with McGills Transport. 12. In January 2004 the defendant became aware that contract truck drivers were using forklifts to access the top of their vehicles at the freight hub. 13. On 22 January 2004, Ian Power, a supervisor from the defendant, forwarded an email instruction to relevant parties, including McGills Transport and DTC, indicating inter alia that 'Under no circumstances should a forklift be used as a work platform' . 14. Subsequent to 22 January 2004 the defendant's officers contacted the WorkCover Authority of New South Wales and sought advice as to an appropriate safe way for truck drivers to tie down their loads at the Defendant's freight hub. 15. Exel subsequently conducted a risk assessment which was documented on 8 March 2004 which indicated alternative measures for the conduct of such work which included the use of a portable ladder or the use of a scissor lift. 16. During the period between December 2003 and 7 April 2004 the worker had requested of the defendant's transport coordinator, Robert Whitney, that assistance be provided to him with respect to loading and strapping his trailer. Whitney had advised that this work was the responsibility of the drivers. 17. On or prior to 7 April 2004 the alternative measures recommended by the risk assessment were being considered by the defendant, but had not been adopted. 18. On or prior to 7 April 2004 DTC had given an instruction to its employees not to undertake the practice of climbing onto loads and onto the top floors of vehicle trailers in order to place straps over freight without assistance. 19. On 7 April 2004 the worker had driven a prime mover freightliner owned by DTC, being vehicle registration number 452GWC, together with a taught liner triple axle double level trailer, with Queensland registration number 667QJA, to the premises. The worker had unhooked the trailer and left it at the premises for loading at about 3.00pm. He was notified by the defendant's employees at about 5.00pm that the trailer was loaded and ready for pick up and he returned to the premises and re-hooked the trailer to the prime mover and commenced to prepare it for the journey. To do so he had to put the gates back on the side of the trailer and strap the load in accordance with RTA requirements. 20. At all material times the trailer, in its loaded condition, had doubled up pallets within it which made it almost full to the roof leaving little room to feed straps through to secure the load. 21. At all material times on 7 April 2004 there was no elevating equipment available to the worker in order to enable him to obtain access to the top of the trailer in order to perform the task of securing the straps and he conducted the work by climbing up onto the top of the load via the side of the trailer despite previously receiving instruction not to do so. 22. At around 5.15pm on 7 April 2004 while the worker was in the process of placing the straps in securing the freight onto the trailer, his foot slipped and he lost his grip and fell to the concrete surface on the ground below at a distance of approximately between 1.12 and 2.5 metres. At the time of the inspection of the scene of the accident by Inspector Grant Vosu of the WorkCover Authority of New South Wales on 7 April 2004, the height of the second floor of the trailer was observed to be approximately 2.7 metres above ground level, whilst the lower level flooring was observed to be approximately 1.12 metres above ground level. The worker sustained serious injuries in the fall including a fracture to one of his lumbar spinal vertebra. He was unable to perform his normal work for a period of in excess of 7 days immediately following the accident. 23. At an inspection of the scene of the accident by Inspector Grant Vosu of the WorkCover Authority at approximately 7.45pm on 7 April 2004 the following observations were made: · The premises comprised a large prefabricated concrete and metal building facing the western side of the property. · Along the length of the building and extending to the west was an over-hanging metal awning. · The area from the building to the perimeter fence on the western side was concreted and inclined up a slight grade to a mezzanine retaining wall. · Parked in the area described as 'Loading Bay No. 2' was a prime mover and trailer. · The prime mover was a white 'freight liner' with Queensland registration number 452GWC. · At the time of inspection the prime mover was in front of but not attached to the trailer. · The trailer was a triple axle double level taut liner trailer with Queensland registration number 667QJA. · The trailer was constructed of metal rear doors that were closed, metal roofing and metal supports in the centre and the ends of the trailer with adjustable positions for the second floor structure. · The second floor was comprised of metal bracing and in-filled with steel mesh. · At the time of inspection the height of the second floor was approximately 2.74 metres from the ground. · At the time of inspection the height of the lower level flooring of the trailer was approximately 1.12 metres from the ground. · At the time of inspection both sides of the trailer had plasticised fabric curtains that were drawn towards the front of the trailer. · Leaning against the rear doors of the trailer were metal gates. · At the time of inspection the trailer was loaded with pallets on the rear lefthand side on both upper and lower levels and the remainder of the trailer was empty. · Adjacent to the front wheel on the righthand side of the trailer were 2 tie down straps that were loosely dangling from the second floor. · At the time of inspection both straps extended across the trailer to the opposite side where they were draped over the second floor level, but not secured. 24. On and prior to 7 April 2004 there had been no elevating equipment such as a portable ladder or scissor lift as recommended by the defendant's 8 March 2004 risk assessment, for use by drivers, including the worker, in order to assist them with securing loads on trailers. 25. On 8 April 2004 a scissor lift was made available at the premises by the defendant for the purpose of assisting with such work. 26. As a consequence it is alleged that the defendant being an employer on 7 April 2004 failed to ensure that people other than its employees including the worker were not exposed to risks to their health or safety arising from the conduct of its undertaking, which included the handling and distribution of freight involving the loading of transport vehicles and all work associated with relation to such dispatching of freight from the premises while such non-employees, including the worker, were at its place of work, namely the premises, contrary to s8(2) of the Occupational Health & Safety Act 2000. 27. The defendant co-operated with WorkCover during the course of WorkCover's investigation into this incident. 28 In addition to the agreed statement of facts further documentary evidence was tendered including an inspector's factual report and photographs as well as a risk assessment undertaken by the defendant. The prosecutor gave oral evidence, and on behalf of the defendant affidavit and oral evidence was given by Julianna Gangemi, a workplace safety and injury prevention officer and formerly an occupational health and safety coordinator employed by the defendant. Affidavit and oral evidence was also given by Declan Byrne, the vice-president, Human Resources of a parent company of the defendant. 29 The defendant is part of a worldwide transport corporation, the ultimate owner of which is Deutsche Post World Net with headquarters in Germany. 30 It is clear from the evidence given on behalf of the defendant in the proceedings that it was aware that drivers required assistance in securing loads particularly those loads the top of which were at some height from the ground. The evidence was to the effect that the defendant was aware that drivers were using tines of forklifts for the purpose of reaching the higher levels of the load and recognised this as creating a potentially dangerous situation. Drivers were then prohibited from using this method. There is evidence that the defendant considered also the use of ladders and scissor lifts but rejected these as being unsuitable because the floor of the premises was uneven. The defendant sought the assistance of personnel from the WorkCover Authority of NSW but was given no specific advice as to the use of any particular equipment. I make this observation solely for the purpose of demonstrating that the defendant was concerned and made some attempt to deal with the issue. I do not intend any criticism of the WorkCover Authority of NSW in making this reference because, ultimately, it is for each employer and other person affected by the Act to assume responsibility to comply with obligations created by the Act. The defendant's personnel were not aware prior to the incident of the availability of lifting equipment that could accommodate uneven or sloping surfaces but later became aware of the existence of such equipment after the incident. In any event, the defendant determined that the premises were unsuitable for its operations because of the state of the ground in the distribution area and decided to move premises. Unfortunately, this was not effected until after the incident. 31 There was some suggestion from the evidence of Miss Gangemi that one of the factors which influenced the defendant in determining its approach to dealing with the potential risk of injury which it had identified included cost considerations and the impact on the speed of the operation of the use of a scissor lift. However, given the assessment by the defendant that any such equipment was unsuitable because of the state of the ground, I am not prepared to infer beyond a reasonable doubt against the defendant that questions of cost and impact on the speed of its operations were a significant factor in failing to provide equipment to enable Mr Reeves to secure the load safely. 32 It was submitted on behalf of the defendant that on the evidence the situation that was confronted by Mr Reeves was more of an isolated incident and not something that was encountered on a regular basis. I reject this submission. In my opinion, there is ample evidence especially by reference to the risk assessments undertaken by the defendant and the defendant's own documentation in that regard that would indicate that this was more than an isolated occurrence in terms of its operations. 33 In the context of these proceedings, I would characterise the offence as a serious one. This defendant is compelled to ensure the safety of persons not its employees who are exposed to risks of injury during the course of the conduct of its operations. There can be no doubt that this defendant through its personnel was aware of the need for drivers of vehicles transporting goods loaded by its employees to secure the loads. It was aware initially of an unsafe work practice and took appropriate steps to ensure that this ceased. This is a reference to the use of forklift tines. However, having been aware of the dangers inherent in the securing of loads, it was then necessary and appropriate for this defendant to take such steps as were reasonably available to it to remove any such risk. Whilst initial investigations were undertaken, as was conceded, the defendant failed to identify equipment that could have been utilised even allowing for the state of the floor where the work was being carried out by Mr Reeves. Furthermore, although the defendant sensibly recognised the inadequacy of its then premises and determined to move premises, it appears to have condoned the risks associated with the securing of loads in the interim or, put in the alternative, failed to take measures to avoid or minimise any such risk. 34 Whilst it is essential to take into account the matter of general deterrence, to some extent the assessment of penalty by reference to its specific deterrent effect on this defendant is mitigated by the remedial steps taken by it and by its general commitment to occupational health and safety matters. Accordingly, whilst having regard to the specific deterrent effect of any penalty I am prepared to moderate the assessment of penalty in this regard. 35 This defendant is entitled to the benefit of all of the ameliorating factors to which I have previously referred. 36 The maximum applicable penalty is the sum of $550,000. I would fix an appropriate penalty in all the circumstances as being the sum of $75,000.

Inspector Morganthal v McGill Holdings Pty Ltd (No IRC 653 of 2006) 37 An amended agreed statement of facts was tendered into evidence which was in the following terms: 1. At all material times the prosecutor was an inspector duly appointed under division 1 of Pt 5 of the Occupational Health & Safety Act , 2000 and empowered under s106(1)(c) of the said Act to institute proceedings in the within matter. 2. At all material times the defendant McGILL HOLDINGS PTY LTD ACN 002 591 433 ('Trading as McGills Transport') was a company duly incorporated in New South Wales with its registered office at Suite 2, 348 - 354 Argyle Street, Moss Vale in the State of New South Wales. 3. At all material times McGills Transport was an employer of five employees who worked in its office at Moss Vale. 4. At all material times the defendant traded under the registered business name of McGills Transport. 5. At all material times McGills Transport conducted the business of road transport logistics, arranging for the carriage of freight between various cities within Australia. 6. For approximately 14 months prior to the 7 April 2004 McGills Transport had undertaken transport logistics work on behalf of Exel (Australia) Logistics Pty Limited ACN 071 798 617 ('Exel'), involving arranging for the carriage of mainly pharmaceutical products manufactured by Johnson & Johnson from Exel's freight hub facility premises at 227 Walters Road, Arndell Park in the State of NSW ('the premises'). The contract involved making arrangements for the loading of goods for freight from the premises for delivery to warehouses in different states. 7. McGills Transport made arrangements for the provision of approximately 25 trucks per week on average in pursuance of its contract with Exel to transport freight as required on behalf of Exel. 8. In conducting the work pursuant to its contract with Exel, McGills Transport engaged a number of sub-contractors to carry out the work. 9. In approximately August/September 2003 McGills Transport made arrangements with DTC Pty Limited (ACN 010 619 593) ('DTC'), another transport company, to conduct line haul services from Sydney to Brisbane in respect of McGill Transport's contract with Exel. 10. DTC agreed with McGills Transport to provide 2 of DTC's trucks (each having a 45 foot mezzanine deck trailer) in order to provide the service required by McGills Transport which involved a nightly express transit of goods 5 nights per week from the premises. 11. DTC commenced the work pursuant to the arrangement with McGills Transport in or about December 2003. 12. At all material times DTC employed truck drivers including Wayne Gregory Reeves ('the worker') to conduct the line haul service work pursuant to its arrangement with McGills Transport. 13. Conditions of the arrangement between McGills Transport and DTC included: (a) The driver runs an express transit time. (b) There was to be a trailer supplied every day. (c) The trailers were to be 45 foot mezzanine drop decks presented in a good and clean condition and with the appropriate running gear. (d) The truck was to arrive at the premises by 2.00pm to load. (e) The drivers were to be required to open up the trailers and remove all gates when they arrived to load. (f) The driver was not to load the freight but was to ensure the load was gated and strapped and ready for travel before departing each evening. (g) The trucks were to be despatched once loaded by Exel and gated and strapped by the driver. (h) The freight was to be delivered to one delivery point in Brisbane, namely the Link Group Pty Ltd, Rocklea, Brisbane. 14. The contract between McGills Transport and DTC was to have commenced in October 2003 but did not commence until December 2003 at which time the terms of the arrangement were varied to include that there were to be 2 delivery points from time to time as requested by Exel. 15. During the period between December 2003 and 7 April 2004, DTC says that complaints regarding the loading issues were made by Kenny Easter of DTC to John McGill of McGills Transport. 16. Some time between December 2003 and January 2004, Robert Perry (a driver employed by a related company, MCG Transport Pty Ltd) also says that he raised concerns with John McGill of McGills Transport and various Exel staff and one of Exel's managers, regarding risks of falls from height when loading freight onto vehicle trailers at the premises. 17. The loading issues were also raised at an OH&S committee meeting of Exel wherein it was identified that a forklift with a pallet on its tynes was used to lift truck drivers to a height in order to assist in strapping the load. 18. On 22 January 2004, Ian Power, a supervisor from Exel, forwarded an email instruction to all parties including McGills Transport stating inter alia that 'Under no circumstances should a forklift be used as a work platform'. 19. Subsequent to 22 January 2004 Exel officers conducted a risk assessment which was documented on 8 March 2004 which indicated alternative measures for the conduct of such work involving the loading of freight which included the use of a portable ladder or the use of a scissor lift. 20. During the period between December 2003 and 7 April 2004 the worker had requested of the Exel transport coordinator, Robert Whitney, that assistance be provided to him with respect to loading and strapping his trailer. Whitney had advised that this work was the responsibility of the drivers and that Exel did not have the resources to assist. 21. On or prior to 7 April 2004 the alternative measures recommended by the 8 March 2004 risk assessment had not been adopted by Exel. 22. On or prior to 7 April 2004 DTC had given an instruction to its employees not to undertake the practice of climbing onto loads and onto the top floors of vehicle trailers in order to place straps over freight without assistance. 23. McGills Transport says that on about 30 March 2004, because DTC was having difficulty with the requirement to attend 2 delivery points, DTC gave 4 weeks notice to McGills Transport that it was terminating its sub-contract with McGills Transport in respect of the line haul services it was providing from the premises. 24. DTC says that on about 30 March 2004, because the loading issues were not being resolved by either McGills Transport or Exel, DTC gave 4 weeks notice to McGills Transport that it was terminating its sub-contract with McGills Transport in respect of the line haul services it was providing from the premises. 25. On 7 April 2004 the worker drove a prime mover freightliner owned by DTC (registered number 452GWC) together with a taughtliner triple axle double level trailer, (Queensland registration number 667QJA) to the premises. At about 3.00pm the worker parked and unhooked the trailer, pulled the curtains aside, took the gates off and left the trailer at the premises for loading. He was notified by Exel employees at about 5.00pm that the trailer was loaded and ready for pick up and he returned to the premises and re-hooked the trailer to the prime mover and commenced to prepare it for the journey. To do so he had to put the gates back on the side of the trailer and strap the load in accordance with RTA requirements. 26. At all material times the trailer was loaded with doubled up pallets making it almost full to the roof and leaving little room to feed straps through to secure the load. The worker had to climb onto the trailer and then onto the top of the load in order to feed the straps across the top to secure the load. 27. At all material times on 7 April 2004 there was no elevating equipment available to the worker to enable him to obtain access to the top of the trailer to perform the task of securing the straps and he did so by climbing up onto the top of the load via the side of the trailer. 28. At around 5.15pm on 7 April 2004 while the worker was in the process of placing the straps to secure the freight on the trailer, his foot slipped and he lost his grip and fell approximately between 1.2 and 2.5 metres to the concrete surface on the ground below. At the time of the inspection of the scene of the accident by Inspector Grant Vosu of the WorkCover Authority on 7 April 2004, the height of the second floor of the trailer was observed to be approximately 2.7 metres above ground level, whilst the lower level flooring was observed to be approximately 1.12 metres above ground level. 29. The worker sustained serious injuries in the fall including a fracture to one of his lumbar spinal vertebra. He was unable to perform his normal work for a period of in excess of 7 days immediately following the accident. 30. At an inspection of the scene of the accident by Inspector Grant Vosu of the WorkCover Authority at approximately 7.45pm on 7 April 2004 the following observations were made: · The premises comprised a large prefabricated concrete and metal building facing the western side of the property. · Along the length of the building and extending to the west was an over-hanging metal awning. · The area from the building to the perimeter fence on the western side was concreted and inclined up a slight grade to a mezzanine retaining wall. · Parked in the area described as 'Loading Bay No. 2' was a prime mover and trailer. · The prime mover was a white 'freight liner' with Queensland registration number 452GWC. · At the time of inspection the prime mover was in front of but not attached to the trailer. · The trailer was a triple axle double level taut liner trailer with Queensland registration number 667QJA. · The trailer was constructed of metal rear doors that were closed, metal roofing and metal supports in the centre and the ends of the trailer with adjustable positions for the second floor structure. · The second floor was comprised of metal bracing and in-filled with steel mesh. · At the time of inspection both sides of the trailer had plasticised fabric curtains that were drawn towards the front of the trailer. · Leaning against the rear doors of the trailer were metal gates. · At the time of inspection the trailer was loaded with pallets on the rear lefthand side on both upper and lower levels and the remainder of the trailer was empty. · Adjacent to the front wheel on the righthand side of the trailer were 2 tie down straps that were loosely dangling from the second floor. · At the time of inspection both straps extended across the trailer to the opposite side where they were draped over the second floor level, but not secured. 31. On 7 April 2004 there was no elevating equipment such as a portable ladder or scissor lift as had been recommended by the 8 March 2004 Exel risk assessment, for use by drivers, including the worker, in order to assist them with securing loads on trailers. 32. On 8 April 2004 a scissor lift was made available at the premises by Exel for the purpose of assisting with such work. 33. As a consequence it is alleged that McGills Transport being an employer on 7 April 2004 failed to ensure that people other than its employees (including the worker) were not exposed to risks to their health or safety arising from the conduct of its undertaking being the performance of its contract to provide line haul services to Exel in respect of its transporting requirements from the premises and all work associated therewith in relation to the dispatching of such freight from the premises was such that non employees were at a place of work namely the premises, contrary to S8(2) of the Occupational Health & Safety Act 2000. 38 In addition, documentary evidence was tendered including photographs and the inspector's report. On behalf of the defendant an affidavit of John McGill, managing director of the defendant, was tendered into evidence. 39 The amended agreed statement of facts makes it clear that this defendant was aware of risks to the safety of drivers created by the need to secure loads involving difficulties in some circumstances of extending the load securing straps over the top of the load. A statement given by Mr McGill to the prosecutor, which is annexed to the Mr McGill's affidavit, verifies this. Mr McGill had been told by representatives of Exel that drivers engaged by DTC had been climbing up on their trailers in order to secure loads without any fall protection and that Exel had sought to prohibit this conduct. In fact, he had seen drivers doing this when he had attended at the premises at Arndell Park and had told the drivers to get off the trailer. Mr McGill also asked Exel to "come up with a better safety procedure" and was told by representatives that they would consult their "safety people" for this purpose. Mr McGill said that he had also discussed this matter with representatives of DTC. 40 There can by no doubt, therefore, that this defendant was fully aware of the risks created by the operations of both DTC and Exel at the Exel premises. Furthermore, these were activities conducted in and about this defendant's undertaking because it was the principal contractor to Exel for the provision of these line haul services. 41 The risk of injury is obvious and the offence with which this defendant is charged must be characterised as serious. In one sense, the operations being conducted were a part of its undertaking. However, when considering the culpability of this defendant I take into account that its own undertaking was less immediate and more remote from the circumstances of the incident than that of Exel on whose property the incident occurred or DTC who was the immediate employer of Mr Reeves. This is not to say that a principal contractor may escape liability or culpability. However, in endeavouring in a pragmatic sense to assess an appropriate penalty by reference to the culpability of each of the three defendants in compliance with the need to ensure parity of penalty, I am of the opinion that there must be greater culpability attaching to the occupier of the premises whose business undertaking is being conducted from the premises and to the immediate employer of the injured worker (save for any specific ameliorating matters). 42 Accordingly, having regard to all of the relevant factors to which I have referred including the ameliorating factors that also apply to this defendant, and taking into account the principle of parity by reference to the maximum penalty of $550,000, I would assess a penalty payable by this defendant in the sum of $55,000.

Inspector Morganthal v DTC Pty Ltd (No. IRC 654 of 2006) 43 In these proceedings, it is necessary to set out the particulars of the charge as contained in the amended application for order dated 15 September 2006: 1. The defendant failed to ensure that systems of work and the working environment of its employees were safe and without risk to health in that: (a) It failed to control the previously identified risk associated with persons including the worker climbing on to the mezzanine decks of vehicle trailers to secure freight. 2. At all material times the defendant was an employer. 3. Pursuant to an agreement between the defendant and McGills Holdings Pty Limited t/as McGills Transport [ACN 002 591 433] the defendant was contracted to provide two of its vehicles and drivers to McGills in order to enable McGills to satisfy its contract with Exel to provide line haul services for the despatching of freight from various locations including the premises to various destinations throughout Australia. Pursuant to its contract with McGills the defendant provided the services of the worker and one of its vehicles being a freight liner with Queensland registration number 452GWC together with its attached triple axle mezzanine trailer with Queensland registration number 667QJA. 4. On 7 April 2004 the worker had driven the said freight liner with the triple axle mezzanine trailer attached to the premises of Exel for the purpose of the trailer being loaded by Exel with its freight for transport to Brisbane. 5. At approximately 5.00pm on 7 April 2004, following the trailer being loaded, the worker climbed onto it and alleges that he was working at a height of about 2.5 metres above ground level in attempting to secure the freight with straps, when he slipped and fell to the concrete ground surface below. 6. As a result of the fall the worker sustained serious back injuries including a fractured spinal vertebra which prevented him from working for a period in excess of 7 days immediately following the incident.

44 An agreed statement of facts was filed which is in the following terms: 1. At all material times the prosecutor was an inspector duly appointed pursuant to clause 11 schedule 3 of the Occupational Health & Safety Act , 2000 under division 1 of Pt 5, and empowered under s106(1)(c) of the said Act to institute proceedings in the within matter. 2. At all material times the defendant, DTC PTY LTD [ACN 010 619 593] was a company duly incorporated in New South Wales with registered office at C/- Vouris & Bell, Level 9, 4 O'Connell Street, Sydney in the state of New South Wales. 3. At all material times the defendant was an employer. 4. At all material times the defendant employed Wayne Gregory Reeves ('the worker') as a truck driver. 5. At all material times the defendant conducted its business of road transport operator involving the carriage of freight between many and various cities within Australia. 6. In approximately August/September 2003 the defendant entered into an arrangement with McGill Holdings Pty Ltd [ACN 002 591 433] t/as McGills Transport ("McGills"), whereby it undertook to conduct the line haul work from Sydney to Brisbane in respect of the freight transport requirements pursuant to McGills' contract with Exel (Australia) Logistics Pty Ltd ("Exel"). 7. The defendant agreed with McGills to provide 2 of its trucks, each having a 45 foot mezzanine drop deck trailer, in order to provide the service required involving a nightly express transit of goods, 5 nights per week. 8. McGills' contract with Exel (Australia) Logistics Pty Ltd mainly involved the transport of freight from Exel's freight hub premises at 227 Walters Road, Arndell Park ('the premises'). Although its contract with Exel also involved carting freight from other Exel premises, the contract involved the loading of goods for freight from the premises to be delivered to warehouses in different states. Essentially the freight, the subject of McGills' contract with Exel, comprised Johnson & Johnson products. 9. McGills provided approximately 25 trucks per week on average in pursuance of its business undertaking and would transport the freight required on behalf of Exel. 10. The defendant commenced the work pursuant to its arrangements with McGills in or around December 2003. 11. The conditions of the arrangements between the defendant and McGills were stated by the defendant to be as follows: (a) The driver runs an express transit time. (b) There was to be a trailer supplied every day. That meant if it had to run back to Sydney empty because of the lack of return freight, then that must happen. (c) The trailers were 45 foot mezzanine drop decks. (d) The truck arrived at the Exel premises by 2 o'clock every afternoon to load. (e) The driver did not touch the freight. It was to be loaded, gated and strapped and shut up ready for travel when the driver arrived to depart each evening. (f) The trucks were to be despatched by 5.00pm each day (g) The freight was to be delivered to one delivery point in Brisbane, namely the Link Group Pty Ltd, Rocklea, Brisbane. 12. The contract between the defendant and McGills was to have commenced in October 2003 but did not in fact commence until December 2003 at which time the terms of the arrangement as imposed on the defendant were not as agreed at the outset. These variations in the terms imposed by McGills upon the Defendant included the following: (a) There were 2 delivery points, namely Exel and Link Group, Rocklea, Queensland. (b) Trucks were not getting out from the premises until later than was initially agreed (5.00pm). (c) The drivers were to assist with opening up the trailers and removing all gates when they arrived to load. 13. During the period between January 2004 and 7 April 2004 complaints regarding the loading issues were made by Kenny Easter of the defendant to John McGill and Richard Easter of McGills Transport. Other complaints were made between December 2003 and 7 April 2004 by various drivers to Exel. 14. Robert Perry a driver employed by McGills also raised concerns regarding risks associated with falls from a height when loading freight onto vehicle trailers some time between December 2003 and January 2004 to John McGill of McGills Transport. 15. The loading issues were also raised at an OH&S committee meeting of Exel wherein it was identified that a forklift with a pallet on its tynes was used to lift truck drivers to a height in order to assist in strapping the load. 16. On 22 January 2004, Ian Power, a supervisor from Exel, forwarded an email instruction to relevant parties indicating inter alia that 'Under no circumstances should a forklift be used as a work platform'. 17. Subsequent to 22 January 2004 Exel officers conducted a risk assessment which was documented on 8 March 2004 which indicated alternative measures for the conduct of such work involving the loading of freight which included the use of a portable ladder or the use of a scissor lift. 18. On or about 30 March 2004, because of the loading issues not being resolved by either McGills or Exel, the defendant gave 4 weeks notice to McGills that it was terminating the contract with McGills on 4 weeks' notice in respect of such line haul services as it was providing to it from the premises. 19. During the period between December 2003 and 7 April 2004 the worker had requested of the Exel transport coordinator, Robert Whitney, that assistance be provided to him with respect to loading and strapping his trailer. Whitney had advised that this work was the responsibility of the drivers and that Exel did not have the resources to assist. 20. On or prior to 7 April 2004 the alternative measures recommended by the 8 March 2004 risk assessment had not been adopted by Exel. 21. Between January 2004 and 7 April 2004 the defendant had given an instruction to its employees not to undertake the practice of climbing onto loads and onto the top floors of vehicle trailers in order to place straps over freight without assistance. 22. On 7 April 2004 the worker had driven a prime mover freightliner owned by the defendant, being vehicle registration number 452GWC, together with a taughtliner triple axle mezzanine trailer, with Queensland registration number 667QJA, to the premises. The worker had unhooked the trailer and left it at the premises for loading at about 3.00pm. He was notified by Exel employees at about 5.00pm that the trailer was loaded and ready for pick up and he returned to the premises and re-hooked the trailer to the prime mover and commenced to prepare it for the journey. To do so he had to put the gates back on the side of the trailer and strap the load in accordance with RTA requirements. 23. At all material times the trailer, in its loaded condition, had doubled up pallets within it which made it almost full to the roof. The worker had to climb onto the trailer in order to feed the straps across the top to secure it. 24. At all material times on 7 April 2004 there was no elevating equipment available to the worker in order to enable him to obtain access to the top of the trailer in order to perform the task of securing the straps and he conducted the work by climbing up onto the trailer. 25. At around 5.15pm on 7 April 2004 while the worker was in the process of climbing down the trailer, his foot slipped and he lost his grip and fell to the concrete surface on the ground below at a distance of approximately between 1.12 and 2.5 metres. At the time of the inspection of the scene of the accident by Inspector Grant Vosu of the WorkCover Authority of New South Wales on 7 April 2004, the height of the second floor of the trailer was observed to be approximately 2.74 metres above ground level, whilst the lower level flooring of the trailer was observed to be approximately 1.12 metres above ground level. 26. The worker sustained serious injuries in the fall including a fracture to one of his lumbar spinal vertebra. He was unable to perform his normal work for a period of in excess of 7 days immediately following the accident. 27. On and prior to 7 April 2004 there had been no elevating equipment such as a portable ladder or scissor lift as recommended by the 8 March 2004 Exel risk assessment, for use by drivers, including the worker, in order to assist them with securing loads on trailers. 28. On 8 April 2004 a scissor lift was made available at the premises by Exel for the purpose of assisting with such work. 29. As a consequence it is alleged that the defendant being an employer on 7 April 2004 at the premises failed to ensure the health, safety and welfare at work of its employees including the worker contrary to s. 8(1) of the Occupational Health & Safety Act 2000. 45 In addition to the above evidentiary material, there was tendered into evidence the inspector's investigation report, photographs and other similar material as well as an affidavit of Ken Easter, the general manager of the defendant. Mr Easter also gave oral evidence. 46 It was the evidence of Mr Easter that the contractual arrangement that it had through McGill and ultimately, therefore, with Exel was that its employees, including Mr Reeves, were not required to secure the load. It was the understanding, therefore, of DTC that that operation would be conducted by Exel. On this basis, there would be no need for Mr Reeves or any other employee of DTC to climb up onto the trailer for the purpose of securing the load. 47 Mr Easter said that either in late December 2003 or early January 2004 he complained to Mr John McGill about a number of matters including the fact that DTC drivers were being requested to assist with the securing of the load. He alleges that Mr McGill said that he would look into the matter. Mr Easter said that he again complained to Mr McGill in mid-January 2004 when he discovered that DTC drivers were being required to secure the loads by placing straps over the top of the freight and that drivers were climbing up the trailer for that purpose. Mr McGill is alleged to have said that he would "fix it". Mr Easter then instructed DTC drivers that they were not to climb onto the load "under any circumstances". Mr Easter said that he further pursued the matter with Mr McGill between January and March 2004. During this time, Mr Easter said that he again informed DTC drivers that they were not to climb onto their trailers and that "if the load was not strapped properly, they were not to leave the premises. I told them I would prefer the load to be left there." Because of this matter, and presumably other matters, Mr Easter arranged for four weeks notice of termination of the contract to be given to McGill in March 2004. The evidence of Mr Easter about these matters was not contested by the prosecutor. 48 In submissions, counsel for DTC emphasised that the charge brought by the prosecutor was confined to one of failing to control a risk of injury which had previously been identified and which was said to be "associated with persons including the worker climbing onto the mezzanine decks of vehicle trailers to secure freight." That is, the breach by DTC of the Act was limited to a failure to ensure that its drivers, including Mr Reeves, did not climb onto the trailer. This breach occurred in the context of the evidence of Mr Easter that DTC drivers, including Mr Reeves, had been instructed on a number of occasions that they were not to climb onto the trailer. Indeed, when it became apparent that this dangerous situation continued to exist, presumably because of the attitude taken by Exel, DTC took the step of severing its contract with McGill. 49 It was against this background that DTC submitted that its culpability should be circumscribed. On the basis of the evidence, I accept this submission. However, this does not, in my opinion, result in the breach by this defendant being characterised as less than serious. It had identified the existence of a risk of injury, it was aware that that risk continued, but it did not take steps to bring about a cessation of the work immediately. As against this, however, DTC had given notice of its intention to sever its relationship with McGill and its drivers had been directed not to climb up onto the trailer for the purpose of securing the load. 50 There was evidence in Mr Easter's affidavit that Mr Reeves had commenced employment with DTC in 2003 but had had more than 20 years experience in the transport industry. He had also had training and instruction in connection with occupational health and safety matters. Having regard to these latter matters, I would assess the culpability of DTC as being less than that of both of the other defendants. 51 After taking into account the objective seriousness of the offence and the question of general and specific deterrence and also the mitigating subjective factors to which I have earlier referred, I would assess an appropriate penalty in the case of DTC as being $45,000.

Orders 52 I make the following orders: 1) Each of the defendants is found guilty of the offence with which they are charged and convicted accordingly. The defendant Exel is fined the sum of $75,000, the defendant McGill Holdings is fined the sum of $55,000, and the defendant DTC is fined the sum of $45,000, with a moiety in each case to the prosecutor. 2) Costs are reserved. 3) Liberty to apply with respect to costs.

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.