WorkCover Authority of NSW (Insp Richey) v Rail Services Australia

PROSECUTOR: Ms P.E. McDonald of counsel Solicitors: WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr J.B. Simpkins SC Solicitors: Sparke Helmore

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Wed 11 April 2001

IRC4643 of 1999 WORKCOVER AUTHORITY OF NSW (INSP RICHEY) v RAIL SERVICES AUSTRALIA Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT (As to penalty) 1 This prosecution is brought under s15(1) of the Occupational Health and Safety Act 1983. The summons pleads the defendant company, Rail Services Australia: On 11 September 1997 at Endeavour Service Centre, Brown Road, Broadmeadow, in the State of New South Wales . . . failed to ensure the health, safety and welfare at work of all its employees, in particular, David Joseph Anderson, in that it failed to make arrangements for ensuring safety and absence of risks to health in connection with the provision of electrical maintenance work, to wit, the repair of an electrical motor on the number 3 roller door at the said service centre. 2 The particulars as to the breach, supplied by the prosecutor to the defendant, were as follows: The defendant failed to ensure that an Instant brand aluminium mobile scaffold used to carry out the said work, was safe and without risks to health in that it failed to implement an audit system to identify unsafe scaffolds within the Endeavour Service Centre.

As a result of the said failure, David Joseph Anderson was injured. 3 Ms P.E. McDonald of counsel appeared for the Prosecutor and Mr J.B. Simpkins SC appeared for the defendant and entered a plea of guilty to the charge. 4 There is an agreed statement of facts as to the breach which relevantly reads as follows: 3. At all material times State Rail Authority of New South Wales (SRA): a) Carried out the maintenance of rail car units at the Endeavour Service Centre, Brown Road, Broadmeadow in the State of New South Wales (the "said premises"). b) Owned an Instant brand, aluminium mobile scaffold (the "said scaffold") at the said premises. 4. At all material times the defendant: a) Carried out electrical maintenance at the said premises pursuant to an internal service agreement with SRA. b) Employed David Joseph Anderson, 19 years of age, as a second year apprentice electrical mechanic. 5. At 1:45 pm on 11 September 1997 at the said premises, Anderson was injured when he fell off the said scaffold as it began to tip backwards. At the time the said scaffold began to tip, Anderson was approximately 4 metres above ground level ascending its external access ladder. 6. As a result of the accident Anderson sustained a fractured left wrist, fractured left heel and a fractured and shattered right ankle. His injuries necessitated an extensive period of hospitalisation, operations and rehabilitation. His right heal was fused, resulting in his right leg to be 1.5 centimetres shorter than his left leg which necessitated him having to wear a built up shoe. 7. On 11 and 18 September 1997 the Prosecutor conducted inspections of the said premises. Annexed hereto marked "A" is a copy of the Factual Inspection Report and photographs taken in response to those inspections. 8. In response to the latter inspection the Prosecutor issued to SRA: a) Improvement Notice No 169054 requiring toe boards and mid rails to be erected on the said scaffold where persons were at risk of falling more than 2 metres. b) Prohibition Notice No 105094 requiring the rectification of unsafe access/ egress and lack of bracing on the said scaffold. 9. On 22 September 1997 in response to the accident and notices, Brett Jackson, Branch Manager of Instant Access Australia Pty Limited (formerly Instant Scaffolds Pty Limited) attended the said premises at the request of SRA and noted the following deficiencies with respect to the SRA scaffold: a) The access ladder was mounted externally as opposed to inside the tower. As a consequence, the said scaffold was susceptible to tipping over. b) There was no plan brace. c) There were no toe boards. d) The dimensions of the said scaffold in the absence of outriggers, resulted in it exceeding the 3:1 height to base width ratio prescribed by Australian Standard 1576-1991 by 130 millimetres. 10. On 25 September 1997 Jackson dispatched an Instant Access Pty Ltd work crew to the said premises, which dismantled the said scaffold and erected it in accordance with the Australian Standard. 11. On the day of the accident in response to a work request from the SRA, Anderson in company with fellow employees Robert Carr and Graham Iles attended the said premises to carry out electrical maintenance. In particular, to repair an electrical circuit controlling a motor on the No 3 roller door (the "said door") located at the southern end of the said premises. 12. In order to access the motor of the said door, which was approximately 6 metres above ground level, Anderson and Carr wheeled in the said scaffold from outside the enclosed area of the Endeavour Centre. 13. Carr ascended the ladder of the said scaffold and checked the motor. Upon determining that the motor would have to be taken down he returned to ground level. He indicated to Anderson that it would be necessary to obtain certain tools in order to remove the motor and secondly that he would obtain some wire to tie the said scaffold against the wall to minimise any movement. 14. Upon their return from lunch, Carr and Anderson wheeled the said scaffold over to the wall adjacent to the said door. Anderson commenced to climb the ladder whilst Carr held its base with one foot resting on it's bottom rung. Upon Anderson reaching the platform mid- rail, the said scaffold began to tip backwards in the direction of Carr. Fearing that he would drag the said scaffold down on top of himself, Anderson released his grip of the mid rail and fell to the concrete floor below, sustaining the injuries described. 15. It emerged from the investigation that: a) No employee of either the SRA or defendant at the said premises held scaffolding certificates of competency or had received any other training or instruction on the safe use of scaffolds. b) Iles and Carr had received training in the safe use of ladders and working at height. c) Despite Iles, Carr and Anderson having used the said scaffold on prior occasions, this accident was the first time they had experienced the tipping sensation. They had not identified the risk of the said scaffold tipping over. d) Anderson intended to tie the scaffold up only once he had climbed onto the top platform of the said scaffold. e ) Anderson was 180 centimetres tall and weighed 110 kilograms. f) Due to the manner in which the said scaffold was constructed, the only way to access its work platform was to ascend the ladder and climb over the top guard rail. 16. The SRA purchased the said scaffold from Instant Scaffolds Pty Limited in approximately 1987. It was formerly used to carry out roof maintenance on the rail car fleet and to examine the roller doors when they malfunctioned. At the time of the accident it had been superseded, in that, SRA utilised an above floor platform to carry out rail car fleet maintenance. However, the said scaffold had been used the day before the accident, by its employees, to disengage the motor and engage a manual chain to raise the said door. 17. The defendant's employees had used the said scaffold when working on the roller door motors since the said premises' inception. Carr had used the said scaffold 3 or 4 times in the 10 years preceding the accident. Anderson had used it approximately 3 times and Iles had used the said scaffold the day before. 18. William McAlpine, a Carriage Builder employed by SRA, indicated to the Prosecutor in a record of interview on 4 December 1997 that he had used the said scaffold approximately 10 times per year since its inception. It was his experience that when climbing the ladder of the said scaffold, the scaffold would tilt up and the back wheels would lift off the ground, but upon reaching the third or fourth rung the scaffold would stabilise. 19. On the day of the accident the defendant's employees did not receive any express permission to use the said scaffold, nor were they told not to use it. 20. Neither the SRA nor the defendant had in place a system of work that ensured Iles, Carr or Anderson only used plant that was safe for the particular task for which it was utilised. 21. Neither SRA nor the defendant had in place an audit system to identify unsafe scaffolds at the said premises. 22. The SRA did not have a maintenance program for the said scaffold. 23. In response to the accident, SRA commissioned Instant Access Australia Pty Limited to: a) Examine the said scaffold and re-erect it in accordance with Australian Standard 1576-1991. b) Dismantle and reassemble all of the scaffolding within the said premises to comply with current standards. c) Train its staff to enable them to assess scaffolding to ensure its fitness for purpose. d) Train the defendant's employees from the Hamilton depot in the same scaffold classes. 24. Since the accident, the defendant has: a) Required its employees to undertake a scaffolding accreditation course. b) Confirmed that the said scaffold was re-erected in accordance with Australian Standard 1576-1991. c) Introduced an instruction sheet to identify and assess hazards at its work sites. d) Provided re-training for its supervisors. . . . 5 The prosecutor in this matter has chosen to limit the charge against the defendant authority to that of a failure to implement an audit system to identify unsafe scaffolds within the Endeavour Centre. 6 In assessing the gravity of this offence the court is guided by the Full Bench in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474) commented: . . ., in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'.

and the Full Bench said (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

With approval the passage from the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Ltd (unreported, CT772-775 of 1991, 20 May 1994) was cited where his Honour said (at 474): . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. The Full Bench notes that (at 476): . . . the proper approach is to first consider the gravity of the offence viewed objectively.

And also (at 476): In the case of an offence under s 15(1) of the OH & S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, 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 defendant; see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Ltd , the Full Bench indicated (at 9), properly in our view that 'a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences.' 7 This worksite has a particular history. The responsibilities of the State Rail Authority (SRA), under the auspices of the New South Wales Government, were broken up and an entity known as the Rail Services Authority (RSA) was established in July 1996. There has been a further change from 1 January 2001 and the entity is now known as Rail Infrastructure Corporation (RIC). 8 The circumstances of this accident reveal some of the distraction from the commitment to safe working which arises when there is a break up of such an authority as the SRA. 9 The Endeavour Service Centre, Broadmeadow was and has remained the property of the SRA. The equipment used to carry out the work namely, the "Instant Brand Aluminium Mobile Scaffolding" was also owned by the SRA. The scaffolding was purchased in approximately 1987. The scaffold model had been superseded but was still in use. Employees of RSA were required to use the mobile scaffold owned by the SRA and on an SRA site on the day of the accident. They had also used it the day before the accident. 10 This Court in the matter of WorkCover Authority of New South Wales (Inspector Richey) v State Rail Authority of New South Wales [2000] NSWIRComm 205 in a prosecution against the SRA arising from the same event found, as to the scaffolding [at 9]: . . . The scaffold had not been erected correctly and, when weight was placed upon it, was unstable. Further the scaffold did not have the required plan brace and toe boards. There was, therefore, in its use, a risk of injury to any worker. Senior workers on site knew of the instability of the scaffold but did not direct their attention to resolution, or even identification, of it as a problem. 11 Ms McDonald for the prosecutor submits the facts reveal the RSA was standing in the same footsteps as a labour hire firm. It provided workers to perform duties on SRA land using SRA equipment. She submits the obligation of the RSA is similar to the duty imposed under the Act on a labour hire firm. This duty was enunciated in Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 where it was said (at 456): A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe. Although the particular circumstances of an employer who conducts a labour hire business is different from traditional employer/employee relationship the Full Bench commented (at 455): . . . these circumstances do not obviate, or diminish, the obligation of the employer under s 15(1) of the OH&S Act to "ensure the health, safety and welfare at work of all the employer's employees". Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of their employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s 15(1). 12 I adopt Ms McDonald's submission as to the obligations on this employer being similar to that of a labour hire firm. The facts of this case must be weighed up with the duty as defined by the Full Bench in the matter of Drake. The risk to safety associated with requiring Mr Anderson to climb an unsafe scaffold to perform his duties was not properly considered by the defendant. No positive steps were taken by the defendant to ensure that Mr Anderson was not exposed to any risk in the performance of his duties. In effect, this defendant is charged with a lack of knowledge of the unsafe state of the equipment because it did not audit the equipment it required its workers to use when it took over some of the responsibilities of the SRA in July 1996. 13 As to such an audit, Prudence Anne Dalley, Safety Manager for Rail Services Authority admitted in evidence no inspection of any of the equipment had been made at the time the defendant took over its responsibilities from the SRA. I find in the circumstances the gravity of this offence is in the middle range. 14 In mitigation as to penalty I take into account Ms Dalley's evidence that an audit of equipment had begun in 1997 but it was a big task and was not completed for over two years. A process of job safety analysis was also begun in September 1997 and completed in late 2000. This process was most thorough and allowed for the preparation of documents identifying the specific task; the duties associated with each task, and the procedures involved in performance of the task. Associated hazards were then identified, risks assessed and controls put in place to prevent injuries and other adverse health effects in the performance of the task. 15 Project managers and work group leaders were given responsibilities for site safety. Workers were involved in the preparation of the job safety analyses. Identified tasks were developed for safety co-ordinators. The process is now, since October 1999, an ongoing process. Out of this procedure instruction guides and process control plans have evolved. Risks to safety are now identified and controls put in place. 16 When asked how this would work on the job, Ms Dally identified a document which calls for a worker to assess his job before beginning work and allows a refusal by the worker to use plant or equipment which is identified as dangerous. The latter procedure is relevant to the state of the facts before the Court. Evidence in the Agreed Statement of Facts contained the comment: Mr Anderson intended to tie the scaffolding up once he had climbed on to the top of the said scaffold.

Such a statement reveals, although the scaffold was not formerly identified as a risk to safety by his supervisors, the worker himself was endeavouring to alleviate what he recognised as a risk. Under the new procedures he could refuse to work on the equipment. The involvement and empowerment of the worker on site in the safe working procedures must be a positive development in the move to commit to the removal of risks to safety from an RSA Worksite. 17 The evidence further revealed, in the 4 metre fall from the scaffold, this apprentice suffered injury and wasting to a leg, had to leave his apprenticeship and pursue other endeavours. Mr Simpkins, counsel for the defendant submits the court should take into account a settlement paid to this worker for his injuries in its consideration of the objective circumstances of the breach in mitigation as to penalty. 18 In Inspector Tyler v Sydney Electricity (1993) 47 IR 1, however, Hill J held (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability.

The Court must therefore assess the risk of injury from the breach and can only take into account the injury as an indicia to assist in assessing the gravity of the offence. 19 Other subjective elements have been placed before the Court, namely, that there was an early plea of guilty entered in the matter. The file reveals the summons was made returnable on 21 October 1999 and a plea of guilty was entered on 28 February 2000. I accept there is a utilitarian value to this plea. 20 Recently the New South Wales Court of Criminal Appeal published a guideline judgment in R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383 in relation to the consideration a court should give to early pleas of guilty entered by a defendant. The defendant makes application for consideration as to a discount for the utilitarian value of its plea in accordance with the reasoning as enunciated by Spigelman CJ [at 153-155]: 153 The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.

154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 21 The guideline adopted by the Court of Criminal Appeal was as follows [at 160]: (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. 22 In consideration of the utilitarian value of this plea, I allow a 25% discount as it appears from the record this was a very early entry of a plea of guilty that involved co-operation in the preparation of an amended summons and an agreed statement of facts. 23 Having perused all of the documentation arising out of the endeavours made by the defendant to develop an awareness of safe working at its place of work, I am persuaded there is now a significant inroad being made against the ingrained culture at the worksites on the railways which in the past could have been held to reflect a cavalier attitude to work safety. I am further persuaded from an examination of the safety procedures placed before the court they properly involve an endeavour from every level of management. The plan also incorporates the involvement of the worker on site. It empowers individual workers to assess and refuse work where there are identifiable hazards which provide risk to their safety. Such an endeavour indicates a commitment now in the defendant to safe working and should be taken into account in mitigation of penalty. 24 Ms McDonald for the prosecution revealed that the Authority has registered two prior convictions since its inception in July 1996 - one attracting a penalty of $6,000; the other a penalty of $15,000. A defendant who has previously been convicted of offences under the Act attracts the provisions of s51A which provides for the imposition of an additional penalty where there are subsequent offences against the Act (see Capral Aluminium Ltd v WorkCover Authority of NSW (Insp May-Ramsay) (2000) 99 IR 29 [at 94]). The parties agree the present statutory maximum relevant to this offence was $550,000 but in addition as the breach attracts the provisions imposition of an additional penalty given the maximum penalty increases to $825,000. 25 The increasing penalties and the strict nature of the duty of care imposed on an employer by the Act reveal the importance to the community that the Legislature has placed upon health and safety in the workplace. As was said by Spigelman CJ in R v Howland (1999) 104 ACrimR 273 [at 41]: . . . the community has indicated that it wishes to denounce this conduct in the strongest terms. . . . By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern. 26 The nature of this charge directs itself to the obligation of a defendant to positively inform itself of safe working. There is an absolute duty imposed upon a defendant under the Occupational Health and Safety Act 1983 to give expression as a matter of public policy to the requirement that management has a positive obligation to inform itself of circumstances which ensure safe working. 27 I have found the documentation and the evidence of Ms Dally sufficiently persuasive to allow a finding that there has been now introduced to the RSA appropriate occupational health and safety measures and guidelines. However, as Maidment J said in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported decision, CT93/1062, 26 November 1993) (at 7): . . . . it needs to be remembered that the legislation is not directed to ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments . . . 28 Another issue which the Court has been asked to consider in this matter is the principle of consistency. The prosecution in WorkCover Authority of NSW v State Rail Authority of NSW (unreported decision of Kavanagh J, IRC97/7032 to 7036, 13 October 1999) arose under another provision of the Act namely, s16 and this Court imposed a penalty of $80,000 with a moiety of that fine to the WorkCover Authority. 29 The defendant relies on Capral to argue in this prosecution the principle of consistency should be applied and consideration as to consistency of penalty be considered in light of the penalty imposed in the SRA judgment. It was held by a Full Bench in Capral [at 62]: It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime . . .

The Full Bench then held [at 63]: When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 ACrimR 368 (at 371)) . . .

In Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm239 (published 7 December 2000) in a consideration of the application of the principle of consistency a Full Bench held [at 100]: . . .what we must take into account here is the principle of consistency, but, in doing so, "what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender." 30 Given the objective seriousness of the offence and the subjective factors taken into account, and allowing for the discount for the utilitarian value of the plea of guilty I fine the defendant $70,000. Taking into account the principle of consistency and the penalty set in the SRA prosecution, I consider $70,000 to be the appropriate penalty. 31 I find the defendant guilty. I fine the defendant in the sum of $70,000 with a moiety to the WorkCover Authority. The defendant shall pay the prosecutor's costs as agreed or assessed.

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