And (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 Insp 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 Insp 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 In a consideration of the nature and quality of this offence, that is, the gravity of the offence, the Court notes the particulars of the breach relied upon by the prosecution refer to the failure to provide and maintain a safe system of work related to maintenance work on or around the boring machine and the failure to provide or maintain an adequate tag and lock out procedure for work around the gripper section of the machine.
9 There is a further element to this offence which must be given consideration and that is found in the Job Safety Analysis ("the JSA") revealed in company documents which were prepared on 28 September 1998, that is, before this tragic accident. Evidence reveals this safety analysis on the operation of the boring machine was conducted on site with the operators of the machine. The JSA identified some risk associated with the operation of the machine as follows: under the heading, "Potential Hazards", "Squash materials/people. Low gripper pressures" and then under the heading "Hazard Control Measures", is the comment "Watch regrip area. Ensure all clear. Ensure all four grippers have full pressure. Watch ground conditions."
10 The recommended Hazard Control Measure was reviewed, accepted and approved by company management. In its terms the warning contained under the heading "Potential Hazards" identifies the same terrible risk and danger at this site, two months before the accident, which risk caused the death of the employee. Therefore, I find this breach must be assessed as having the quality of a foreseeable risk. As Walton J, Vice President said 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) (at 37):
Whilst the reasonable foreseeability 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 17) and The University of Sydney (at 16).
11 Further, the evidence reveals in October 1998, the company had introduced a tag out system which involved, before carrying out maintenance on machinery such as the boring machine, a tag would be placed on the machine operator's control panel to notify the operator of a worker's presence around moving parts. A lock out isolation or pendant control system worked in conjunction with the tag. The control pendant identified the place where a maintenance worker was working. The operator of the machine could not move into the next stage of the machine's operation therefore until the mechanic had re-claimed the tag. However, these procedures, while adopted in principle by the company in October 1998, one month before this accident, had not been refined for the operation on the site of the Tunnel Boring Machine.
12 Evidence revealed the employees on site had themselves developed a procedure arising out of their own safety awareness instincts. If any employee was working on or under the machine the employee informed the operator and, before the operation began to lower the leg of the boring machine, he climbed out of the operator's cabin and by a method of shouting, or hand signals, or the use of headlamps communicated with the maintenance workers what procedure he was about to enter with the machine.
13 In assessing the nature and quality of this offence the court finds the existing safety procedures being applied by the well intentioned operators reveal a complete neglect of task related safety procedures, as distinct from the site safety analysis, by this defendant company. Once more this court comments, not only must there be a general philosophical commitment by corporations to the principles of Occupational Health and Safety, but there is also the absolute necessity for each company to develop specific task-related safety procedures. The warning "Watch regrip area. Ensure all clear" while made available to the relevant employee was not a safety procedure at all and it put a most terrible obligation onto the workers at this site. To leave to operators the task of refining their own safe working procedures without corporate assistance is in itself an unsafe work practice and a complete avoidance of a company's obligation under the Act.
14 The employees instinctive self-imposed procedures for safe working by way of shouting and warning clearly failed in the circumstances. It is open to conjecture that the deceased, who had only been on this site for six weeks, although with some training, may well not have even understood what the regrip process involved. The deceased's reply "Okay, all right" clearly indicated he did not have any true concept about where to place his body to avoid the great weight of the regrip leg. The machine operator had been put in a most invidious position. The consequence which flows from this accident is a measure of the risk this unsafe work procedure created.
15 The following factors are accepted as indicative of the serious nature and quality of this offence. The court accepts the Tunnel Boring Machine is a machine which operates continuously and therefore maintenance has to be performed while it is operating. The defendant corporation was aware maintenance work would be carried out while the machine was operating. The fact that a worker who had been working for the company for only six weeks was required to place himself in what he assessed might be a safe position, rather than being required to come out from under the machine, in itself, identifies an inadequate system of work which exposed this worker to a most serious risk. Even taking into account the procedure added by the employees to ensure safety there is no evidence the defendant company designed a safe working procedure. Yet the appropriate safe system for such a task is the TAG system. This was known to the company. It was not being utilised in the performance of this task.
16 As a general principle neglect of well known precautions in circumstances where there is a major risk of injury is indicative of the serious nature of the offence and moves the offence towards the "worst case" category. From the facts before the court there was available an alternative procedure of tagging, known to the defendant corporation, and not implemented at this worksite.
17 I find this a most serious offence.
18 However, in assessing penalty the court may also take into consideration subjective factors which mitigate the objective seriousness of an offence. Mr Hodgkinson of counsel, with great vigour, urges upon the Court there are substantial subjective factors relevant to an assessment of penalty for this breach. He refers in detail to the circumstances which brought about the defendant's plea of guilty namely the defendant's co-operation with the WorkCover Authority, the defendant's contrition and as an immediate expression of that contrition he draws attention to the assistance provided immediately by the company to the family of the deceased. There was follow up assistance also provided to the family. The Managing Director of the defendant corporation himself went to the family and ensured every assistance was provided. The family received speedily all entitlements. I accept sincere contrition has been expressed by the company. Information as to Compensation rights and Superannuation rights was given to the family. It is noted an ex gratia payment was made by the company to the deceased's family. Co-workers were also provided with counselling. The company's concern in the aftermath of this accident for the deceased's family members and its employees are matters the court takes into account.
19 The defendant also relies upon the affidavits of its workers, namely, Mr Brindle, Mr Riches, Mr Betts and Mr Cuttler to demonstrate both a pre-existing commitment to the obligations of this company under the Act and their sincere and significant industrial reaction to the accident to put in place a safe system of work. A complete review of all its safety procedures were conducted
20 The character of a defendant, including the character of a corporate defendant, can be given a consideration in the determination of penalty (see Alexander Stuart & Songs Ltd v Robinson (1921) 29 CLR 234; s110 of Evidence Act). Evidence reveals there was in this corporation, prior to this accident, a significant commitment to occupational health and safety awareness. As this Court has often determined, this commitment must not only be a general commitment to safe working but that commitment must be transposed to site related safety procedures, task specific. Unfortunately, generalised words like "Ensure all clear" cannot translate to a working procedure or be accepted as a task related safe working procedure. Such is acknowledged by implementation of better practice post the accident.
21 Further, the defendant corporation acknowledges there was a corporate culture on this site which put "production" ahead of "risk". Although company policy was always that risk controls had priority over production the defendant has ensured the pre-accident corporate culture at this work site has materially changed. There has been significant re-training of the workers on site. Engineering refinements to the continuous boring machine itself, especially directed to access for maintenance workers, have been requested of the designers of the machine. The weight of a corporate reputation, such as that held by Transfield, it is hoped will encourage support for engineering refinements to the machine.
22 There is before the court significant evidence this company is a corporate citizen who specifically and financially supports community based projects and events. The company in New South Wales has a fine corporate reputation as a contributing corporate citizen.
23 The court, as to the defendant company's industrial record notes a number of convictions for minor breaches of the Act, leading to the two serious convictions and this most dreadful of fatalities. Industrial citizenship must be weighed in the context this company has some 8000 workers throughout Australia, Asia and New Zealand. It operates in heavy industry building projects such as the Sydney Harbour Tunnel, the New South Wales Airport Railway Link and the site of this accident, the Northside Storage Tunnel. On this site there were 80 persons at the time and now 120 persons. As in this case, much work is performed in dangerous underground conditions (see WorkCover Authority of NSW (Insp Gordon) v State Rail Authority, Marks J, 27 March 1997 at 6-7). However, the imposition of a penalty cannot be disproportionate to the seriousness of the offence.
24 Further, there are particular circumstances leading to the defendant's early plea of guilty on which the defendant corporation relies as a subjective feature to be given consideration. The defendant corporation investigated this dreadful accident immediately. The WorkCover Authority had in accordance with its statutory obligations also commenced investigation, but prior to the prosecutor undertaking a breach interview with the defendant corporation, the defendant corporation approached the prosecutor and advised, from its own investigations, there had been a breach of s15 of the Occupational Health and Safety Act 1983, and further, in the event that the prosecutor decided to prosecute the matter, it would enter a plea of guilty to the charges. It then provided the prosecution with its factual investigation. An agreed statement of facts was drafted and agreed to prior to the prosecutor laying the charge (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683).
25 The file indicates a summons against the defendant corporation was filed on 22 December 1999 and the matter was first listed before the Registrar on 28 February 2000. However, on 18 January 2000, Messrs Carrol & O'Dea, solicitors, representing the defendant company, wrote to the Registrar of the Industrial Relations Commission of New South Wales relevantly stating:
We have now been served with the initiating process in the above-mentioned matter.