WorkCover Authority of NSW (Insp Richey) v State Rail Authority of NSW

HEARING DATES: 08/23/2000 DATE OF JUDGMENT: 11/08/2000

Prosecutor Ms P.E. McDonald of counsel Solicitors WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant Mr B.D. Hodgkinson of counsel Solicitors Gillis Delaney Brown

JUDGMENT:

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

IRC4642 of 1999 WORKCOVER AUTHORITY OF NSW (INSP RICHEY) v STATE RAIL AUTHORITY OF NSW Prosecution under s 16(1) of the Occupational Health and Safety Act 1983

JUDGMENT 1 This prosecution is brought pursuant to s16(1) of the Occupational Health and Safety Act 1983 ("the Act"). An amended summons was filed in court on the first day the matter was set down for hearing which summons relevantly reduced the number of particulars relied upon as to the alleged breach. The amended summons was issued by the court in accordance with s4 of the Supreme Court (Summary Jurisdiction) Act 1967. The defendant, represented by Mr B.D. Hodgkinson of counsel, then entered a plea of guilty to the charge. Ms P.E. McDonald of counsel appeared for the prosecutor. 2 The summons alleges the defendant: (The) State Rail Authority of NSW, on 11 September 1997 at the Endeavour Service Centre, Brown Road, Broadmeadow in the State of New South Wales has breached Section 16(1) of the Occupational Health and Safety Act 1983 in that being an employer, it failed to ensure that persons not in its employment, in particular, David Joseph Anderson, were not exposed to risks to their health and safety arising from the conduct of its undertaking, namely, electrical maintenance on the No 3 roller door, while they were at its place of work. In particular, the defendant: a) Failed to provide and maintain plant, to wit, an Instant brand aluminium mobile scaffold, that was safe and without risks to health, in that it failed to: (i) Ensure that the access ladder to the top working platform was mounted within the scaffold structure. (ii) Install a plan brace. (iii) Install toe boards. (iv) Implement an audit system to identify unsafe scaffolds within the Endeavour Service Centre. 3 There was an agreed statement of facts as to the circumstances of the breach as follows: 3. At all material times: a) The defendant 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) The defendant owned an Instant brand, aluminium mobile scaffold (the "said scaffold") at the said premises. c) Rail Services Australia ("RSA") carried out electrical maintenance at the said premises pursuant to an internal service agreement with the defendant. d) RSA employed David Joseph Anderson, 19 years of age, as a second year apprentice electrical mechanic.

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.

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 a period of hospitalisation, operations and rehabilitation. His right heel 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.

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.

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 the defendant and noted the following deficiencies with respect to the said 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.

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.

On the day of the accident in response to a work request from the defendant, Anderson in company with fellow RSA 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.

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 Endeavour Centre.

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.

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.

It emerged from the investigation that: a) Iles and Carr had received training in the safe use of ladders and working at height. b) 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. c) Anderson intended to tie the scaffold up only once he had climbed onto the top platform of the said scaffold. d) Anderson was 180 centimetres tall and weighed 110 kilograms. e) 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.

The defendant 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, the defendant 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.

Carr had used the said scaffold 3 or 4 times in the 10 years preceding the accident. Carr indicated to the Prosecutor in a record of interview on 11 September 1997 that he had not experienced any previous problems with the scaffold. Mr Carr also stated that on the day of the accident the scaffold had swayed or vibrated slightly prior to the accident. Anderson had used it approximately 3 times and Iles had used the said scaffold the day before. Anderson told the Prosecutor in a record of interview on 11 September 1997, that he had not experienced any problems on the previous occasions he had used it. In a recorded interview on 22 October 1997, lles described the extent of the scaffold's movement on the day he climbed it as " wiggly ".

William McAlpine, a Carriage Builder employed by the defendant, 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.

On the day of the accident the RSA's employees did not receive any express permission to use the said scaffold, nor were they told not to use it.

The RSA did not have 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.

Neither the defendant nor the RSA had in place an audit system to identify unsafe scaffolds at the said premises.

In response to the accident, the defendant 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 RSA's employees from the Hamilton depot in the same scaffold classes. 4 As to a prosecution under s16(1) of the Act the approach of Hill J in Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 (at 185) was adopted in WorkCover Authority of New South Wales (Insp Dubois) v Concrete Constructions Group Limited (unreported, 20 May 1999, IRC97/5242) by Wright J, President (at 19): In Boral Gas, Hill J considered in some detail (at 185) the nature of s16(1) of the Act, the nature of the offence created thereby, and the failure in that case to provide proper particulars: In my opinion, s16(1) creates only one offence where, on a particular occasion, an employer fails to ensure that persons not in his employment are not exposed to risks arising from the conduct of his undertaking or operations while they are at the employer's place of work notwithstanding that the conduct of the undertaking or operations at that point exposes different persons to different risks which arise in a variety of ways. In my opinion, the gist of the offence created by s16(1) is that of the employer exposing persons not in his employment to risks to their health or safety while at his place of work. The act or omission resulting in the exposure of persons to risks to their health or safety may arise in one or more of a number of ways. In other words, the prohibited act or omission may possess one or more characteristics and proof of the existence, at a particular time, of several risks and several causes of risks, each to different persons or groups of persons, will establish only one contravention of the section. . . . (emphasis added)

5 Two workers, Mr Carr and Mr Iles, employed by the Rail Services Authority, the contractor and employer of the injured worker, had noted the said scaffolding on the day or the day before "swayed or vibrated slightly," and was "wiggly." A third worker, Mr McAlpine employed by the State Rail Authority, the defendant, noted the scaffolding would "tilt up and the back wheels would lift off the ground". However he was also of the view when the person climbing the ladder reached the third or fourth rung the scaffold would stabilise. Three senior workers on this site had therefore identified the scaffold was unstable. 6 Further evidence revealed the access ladder to the working platform on top of the scaffold was mounted on the scaffold externally not internally as required under the appropriate safety standards for scaffolding. The accident occurred when the weight of the apprentice, Mr Anderson, was placed on to the steps. The scaffold tipped and Mr Anderson fell suffering serious injury. 7 In the matter of Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474) some principles guiding a court as to the assessment of penalty were enunciated: . . ., 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'. The Full Bench noted also (at 476): . . . the proper approach is to first consider the gravity of the offence viewed objectively.

And (at 476): . . . 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.' 8 This view has recently been reiterated by Wright J, President, in Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm71, 21 July 2000 (at para 94): The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety . . . 9 There were obvious risks involved when the work undertaken by this apprentice required him to climb the scaffold owned and controlled by the defendant. 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. 10 The court has before it a number of affidavits from persons all identified, at various times, as "Fleet Maintenance Managers" of the defendant at the Endeavour Centre where this accident took place. They affirm that no official complaints had been made to them, as the officers responsible, about the state of the scaffolding. They reveal the scaffolding had been used at least 10 times a year and had been on site for 10 years. Further evidence revealed no internal audit was required by the defendant of the equipment at Endeavour Centre. 11 From the evidence the court finds there was every prospect of a serious risk of injury arising from the use of this scaffold and that is what was suffered by this 19 year old apprentice when the scaffolding tipped and he fell from it some four metres to the concrete ground . He suffered injuries including a wasting of the right leg requiring him to wear a built-up shoe, fractures of the left wrist and a fracture of the left heel. Evidence further reveals this apprentice in electrical mechanics has been unable to complete his electrical qualification and has lost his apprenticeship. 12 This breach reflects an element of "reasonable foreseeability". As Walton J, Vice President, in Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (unreported, IRC142 of 1998, 16 August 1999) said (at 37): Whilst the reasonable forseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng , Matter No IRC 3064 of 1997, 12 August 1999 at 39), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and The University of Sydney (at 16). 13 The gravity of the offence is also demonstrated by the simple and straight forward steps the defendant was able to take to remedy the defects to the scaffold. (See WorkCover Authority of New South Wales (Insp Piggott) v Capral Aluminium Ltd (unreported, Schmidt J, 14 May 1998; WorkCover Authority of NSW (Insp Callaghan) v Saunders Constructions Pty Ltd (unreported, Maidment J, CT93/1062, 26 November 1993)). This scaffolding was pre-fabricated and it was able to be disassembled and then reassembled in accordance with the Australian standard by the simple act of dismantling and re-assembling and placing the stairs inside the scaffold to assure balance. 14 Three senior workers on site were aware of the instability and the safety sign directly indicated the ladder be placed inside instead of outside the scaffolding: both are factors which persuade the court that it was very proper for the defendant to acknowledge its breach by the plea of guilty. 15 The strict nature of the duty imposed by the Parliament upon this defendant corporation to workers entering its workplace reveals the importance the legislature has placed on health, safety and welfare in the workplace. I find an analysis of the objective features of this breach reveals there was an obvious and foreseeable risk to safety in the use of this scaffold against which appropriate measures were not taken, even though such measures were available and feasible. 16 The parties agree the present statutory maximum relevant to this offence was $550,000 but in addition the breach attracts the provisions of s51A of the Act for the imposition of an additional penalty given the defendant has been previously convicted of offences under this section of the Act. The imposition of an additional penalty thus increases the maximum penalty up to $825,000 (see Capral Aluminium Limited v WorkCover Authority of NSW). 17 The industrial record of the defendant corporation reveals the defendant has been prosecuted under the Act on a number of matters and convicted for breaches under s16(1) of the Act. Some of those breaches must be perceived as serious given the level of penalty that was ordered against the defendant (see consideration of prior convictions in WorkCover Authority of NSW (Insp Sheppard) v The State Rail Authority of NSW [2000] NSWIRComm179 (6 October 2000, Wright J, President). 18 However, some subjective features have been placed before the court for consideration in any assessment of penalty. The manager of the Corporate Safety Division of the State Rail Authority, Mr Jolly, presents the State Rail Authority Rail Safety Management Plan 1999, which plan clearly acknowledges there are now ongoing audits on this type of equipment at Endeavour Centre. Regular assessments are now conducted on the condition of all equipment and compliance checks are made in accordance with relevant safety standards. Workers are given training and updating as to the safe use of all equipment. 19 Further, the court has before it the "Passenger Fleet Maintenance Contractors Guidelines for Safety" which guidelines enunciate that contractors, such as the Rail Services Authority (now Rail Services Australia), have responsibilities for site induction and orientation, making every worker fully aware of any risks associated with the work environment or activities conducted at the work site. The contract does not negate the acknowledged absolute liability of the defendant corporation, the State Rail Authority, to provide a safe working site but it re-endorses the Authority's commitment to safe working and to assuring the court that it demands safe working practices from its contractors and its sub-contractors. 20 One further issue has been raised for consideration as to penalty. The defendant entered this plea of guilty on the filing of the amended summons on the first day of hearing. The matter had been set down for hearing for two days as a contested litigation and a plea of not guilty had previously been notified. The case had been listed before the Registrar on four separate occasions and before the court for mention on one occasion. When the matter was set down for hearing this court was told there would be two to three witnesses called by the defendant and up to seven witnesses called for the prosecution. 21 Recently the New South Wales Court of Criminal Appeal published a guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309 in relation to the consideration a court should give to pleas of guilty entered by a defendant. The judgment (at paras 151-155) calls for a discount range in consideration of the utilitarian value to a plea of guilty as it assists in the administration of justice in NSW. 22 The defendant makes application to the court for consideration, in this matter, as to a discount on penalty because of the utilitarian value of its plea of guilty. As enunciated by Spigelman CJ, in Thomson's Case (at par 151- 155) and adopted by the Appeal Bench: 151 . . . That utilitarian value will vary from time to time and from one criminal justice system to another. Obviously there are common elements but there are also differences. The task of this Court is to identify a discount range which is appropriate and which will serve the public interests sought to be attained in New South Wales from encouraging early pleas of guilty.

152. In my opinion, the appropriate range for a discount is from 10-25 percent.

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.

And as to the application of that reasoning under the heading "Guideline" at the beginning of the judgment, the Court of Criminal Appeal noted: The following guideline is adopted: (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. 23 As was commented upon by Wright J, President in WorkCover Authority of NSW (Insp Sheppard) v The State Rail Authority of NSW (at 38): The guideline is to be considered with the relevant provision of the Crimes (Sentencing Procedure) Act 1999 which replaced s 439 of the Crimes Act 1900 and which provides: 22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. 24 In submitting the court should apply these principles and the guidelines of the Court of Criminal Appeal to attract mitigation of penalty as to its plea of a breach of s16(1) of the Act, the defendant acknowledges the court's discretion as to the application of the discount and further acknowledges the plea of guilty in this prosecution was not entered early. However, the defendant submits the court should weigh into its consideration the plea was entered when the prosecution filed an amended summons on the first day of hearing. The amended summons which pleaded a breach under the same section of the Act, namely s16(1), reduced the number of particulars relied upon in support of the prosecution's case. 25 Weighed with this submission is the fact this court in March 2000 sitting as the Industrial Relations Commission in Court Session, set aside two dates for hearing in August 2000, the first two dates available. Such a timetable is reflective of the workload of this Commission in Court Session and the great need, as the Chief Justice has said, for a consideration, by all parties to litigation, of court efficiency. It is in the public interest that, in the administration of justice, a court should deliver speedy resolution. This cannot be best achieved when days are set aside some months ahead by a court which are then vacated without notice on the first day the matter is set down. 26 However, while the plea of guilty in this matter was not entered until the day of the hearing, I take into account, from the number of witnesses the court was informed would be called by both the prosecution and the defendant, that there were a number of contentious issues and some complexity in the trial. I further take into account the plea has been entered on the amended summons particularising a lesser number of elements to the breach which was not agreed to at an earlier date and that an agreed statement of facts has been tendered to assist the court in a speedy consideration as to penalty. Accordingly the court finds there is a utilitarian value to this plea of guilty notwithstanding it was entered at a late stage in the proceeding. I apply, in the circumstances, a 10% discount on penalty. 27 Further the court takes into account the other subjective features of the matter as relied upon by the defendant in mitigation of penalty. The defendant has reviewed and implemented new audit and compliance checks on equipment used in its worksites and reviewed the training of its staff particularly as to their recognition of risks to safety in the workplace. 28 The defendant had also re-examined the obligations it demands of its contractors working on its sites. However, as acknowledged by the Full Bench in Lawrenson Diecasting (at 474): . . . 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. 29 It has been determined this breach exposes what was an obvious and foreseeable risk to safety. Further as s51A comes into consideration the legislative intention is the court must consider a severe increase in the maximum penalty that can be applied when there exists other successful prosecutions under the Act whether the same offence or another. The court takes into its consideration as to penalty the objective features of the breach and the subjective features as referred to above as well as the discount for the utilitarian value of the plea of guilty as determined. There shall be a further mitigation of penalty to that applied in the consideration of the utilitarian value of the plea. 30 Accordingly: (i) The court finds the plea of guilty was proper in the circumstances and the court enters a verdict against the defendant; (ii) The defendant is fined $80,000 with a moiety of that fine to the WorkCover Authority; and (iii) The defendant is to pay the prosecution costs as agreed or in default of agreement, as assessed.

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