WorkCover Authority (NSW) (Inspector Glass) v Qantas Airways Limited

Industrial Relations Commission (NSW)|1994-11-13|Before: Staunton J, Marks J

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority (NSW) (Inspector Glass) v Qantas Airways Limited [2002] NSWIRComm 258 PROSECUTOR: Inspector Frank Glass PARTIES : DEFENDANT: Qantas Airways Limited FILE NUMBER: 86 of 2002 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - crush injury - inherently dangerous piece of machinery - prior risk assessment - recommended risk control not observed - reasonable foreseeability - very real likelihood of major injury - specific deterrence - prior record - costs - penalty imposed LEGISLATION CITED : Crimes Act 1900 s 556A Occupational Health and Safety Act 1983 s 15 s 51A Capral Aluminium Limited v WorkCover Authority (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Fisher v Samaras Industries Proprietary Limited (1996) 82 IR 384 Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) 90 IR 464 R v Galloway (1979) 1 Cr App R (S) 311 R v Hall (1974) 1 Cr App R (S) 27 CASES CITED : R v The Queen (1981) 3 Cr App R (S) 245 R v Thompson, R v Houlton (2000) 49 NSWLR 383 WorkCover (NSW) (Inspector Barnard) v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107 WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Australia) P/L (2000) NSW IR 53 WorkCover Authority (Inspector Lyons) v Warman International Ltd 105 IR 236 WorkCover Authority (NSW) (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34 WorkCover Authority (NSW) (Inspector Martin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd and Anor (No 2) (2000) 99 IR 163 WorkCover Authority of New South Wales v Goodman Fielder Mills Ltd, (Unreported, Marks J, 13 November 1994) HEARING DATES: 09/09/2002 DATE OF JUDGMENT: 10/10/2002

PROSECUTOR: Mr. G Phillips SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr H J Dixon SC SOLICITORS: Minter Ellison

JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J Thursday, 10 October 2002 Matter No. IRC 86 of 2002

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR GLASS) v QANTAS AIRWAYS LIMITED

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983

1 On 18 January 2000, there was an accident at the premises of the defendant, specifically the International Freight Terminal at Link Road, Mascot in New South Wales. As a result, Mr Eric Cairns, an employee of the defendant suffered severe crush injuries to his chest and left arm and he died three days later in hospital.

2 As a result of that accident, the defendant was prosecuted alleging an offence under section 15(1) of the Occupational Health and Safety Act 1983.

3 It was alleged that, pursuant to section 15(1) of the Act, the defendant: "DID FAIL, contrary to section 15(1) of the Occupational Health and Safety Act 1983 (NSW) to ensure the health, safety and welfare at work of all of the defendant's employees and, in particular, Mr Eric Cairns in that the defendant failed to provide or maintain a system of work that was safe and without risk to health." 4 The particulars of the charge were expressed as follows: (a) At all material times, the defendant was an employer in New South Wales with its registered office at 203 Coward Street, Mascot in the State of New South Wales ("the site") (b) At all material times, the defendant owned, occupied and conducted business at the Qantas International Freight Terminal, Link Road, Mascot in the State of New South Wales. (c) At all material times, the defendant employed Eric Cairns as a leading hand fitter at the site. Cairns has been so employed by the defendant for over 27 years prior to 18 January 2000. (d) The site was a cargo handling facility utilised in the course of the defendant's business. Cargo which is transported by air would pass through the facility at the site. Present in the cargo transfer area was a material handling unit or transfer vehicle which had been designated as the Nobby. The Nobby was a machine which moved on tracks and is used to transfer cargo in the form of pallets and stock from the "air side" of the operation to the "land side" operation. This means that stock which has arrived at the facility by air is moved by the Nobby from the air side of the cargo transfer area to the land side, which is the area where trucks are then loaded with the cargo for distribution. The Nobby, mounted on tracks, consists of a control cabin measuring approximately 1.2 metres wide and 5 metres long and a roller deck measuring approximately 5 metres wide and 5 metres long. Two parallel rail tracks approximately 5 metres apart run the full length of the loading bays. Four flanged metal wheels (end carriages) support the machine along the track. The main controls for the Nobby are located inside the cabin. A feature of the Nobby was an electric bell which could be rung as a warning and two (2) orange warning lights located either side of the cabin which are meant to operate when the Nobby travelled in either direction. At the time of the accident the bell was inoperative as was the warning light on the southern side of the Nobby. The loading dock consisted of 7 bays which was fed by means of the roller deck and the Nobby transfer vehicle. (e) Adjoining the tracks of the Nobby approximately 2.8 metres north of the pallet dispatch station, was a door to the maintenance section which is marked 20A. Behind this door was a maintenance workshop. (f) The area where the Nobby would operate up and down the track was not secure. Staff, and in particular, maintenance staff could access the operational area of the Nobby and could walk across and along the tracks and could access the maintenance workshop by opening door 20A by gaining access to the same by walking along or across the tracks. (g) The danger of being struck by the moving Nobby had been the subject of a risk assessment dated 24 November 1999 in which the likelihood of contact with the moving vehicle was considered to be "very likely" with the consequence being of "major injury". The risk level was assessed as being high and the recommended controls to be implemented included visual contact with the driver, competent operators operating the vehicle and staff wearing high visibility vests. (h) The risk assessment was deficient in that it permitted or contemplated the situation where persons could access the operating area of the Nobby whilst the Nobby was in operation. Further, no designated look out or spotter was required to be present on the Nobby in order to warn the operator or driver of that machine of the presence of persons on or around the track whilst the Nobby was in operation. Further, there was no system existent or in force where the operator of the Nobby was advised or instructed that persons would be accessing the Nobby's area of operation whilst the Nobby was in operation. The system of work was deficient in that employees were not prohibited from accessing the area of operation of the Nobby whilst the Nobby was in operation. (i) At approximately 2.30pm on 18 January 2000 at the site, Mr Eric Cairns, a leading hand fitter employed by the defendant, suffered severe crush injuries to his chest and left arm when he was caught between the cabin of the Nobby and the rear wall of the adjacent workshop. Cairns was walking behind the Nobby and was attempting to move between the Nobby and the wall to access a doorway leading to the workshop. The Nobby reversed, crushing Cairns against the wall. As a result of the injuries suffered by Cairns on 18 January 2000, Cairns died three days later in hospital. (j) The defendant failed to have in place a system of work that was safe and without risk to health in that it did not have in place appropriate measures to prevent its employees, in particular Mr Cairns, from being exposed to risk of injury by being struck by the Nobby when it was in operation in that it failed to ensure that a safe system of work was adopted when its employee, Mr Cairns, accessed the area of the Nobby.

5 At the hearing, the defendant confirmed a plea of guilty to the offence as charged. The prosecution proceeded by tendering an agreed statement of facts, relevant photographs and a statement of prior convictions concerning the defendant. The prior convictions of the defendant under the Act brings into play the application of section 51A of the Act. The maximum fine therefore available in relation to the offence before me is $825,000.00. I will return to the issue of prior convictions in more detail later.

6 The agreed statement of facts placed before the Court in this matter was, relevantly, in the following terms: 1 At all material times, the defendant was an employer in New South Wales with its registered office at 203 Coward Street, Mascot in the State of New South Wales. 2 The defendant was established in 1920. The defendant is a public company. 3 At the time of the incident, the defendant employed approximately 30,994 employees. 4 As at the date of this affidavit, the defendant employs approximately 35,233 employees. 5 At all material times, the defendant owned, occupied and conducted business at the Qantas International Freight Terminal, Link Road, Mascot in the State of New South Wales ('the Site'). The defendant's freight department operated out of the Site. The defendant also had a separate maintenance department, some of the employees of which performed and continue to perform maintenance duties at the Site. 6 At the relevant time, employees in the defendant's maintenance department worked day, afternoon and night shifts and currently work day and afternoon shifts. Employees in the defendant's freight department, both currently and at the relevant time, work day and afternoon shifts. At all material times, the defendant employed Eric Cairns in the maintenance department as a leading hand fitter at the Site. Mr Cairns had been so employed by the defendant for approximately 27 years prior to 18 January 2000. He had over 38 years experience in mechanical maintenance. 7 As leading hand, Mr Cairns was responsible for the supervision of other maintenance employees. He played a substantial role in safety issues and improving safety at the International Freight Terminal. 8 At the Site was a cargo handling facility utilised in the course of the defendant's business. Cargo which is transported by air would pass through the facility. Present in the cargo transfer area was the material handling unit or transfer vehicle known as the Nobby. The Nobby is a machine which moves on tracks and is used to transfer cargo in the form of pallets and stock from the 'air side' of the operation to the 'land side' of the operation. This means that stock which has arrived at the facility by air is moved by the Nobby from the air side of the cargo transfer area to the land side, which is the area where trucks are then loaded with the cargo for distribution. The cargo handling facility consists of 7 bays which are fed by means of the roller deck and the Nobby transfer vehicle described above. 9 The Nobby, mounted on tracks running in a north-south direction, consists of a control cabin measuring approximately 1.2 metres wide and 5 metres long and a roller deck measuring approximately 5 metres wide and 5 metres long. Two parallel rail tracks approximately 5 metres apart run the full length of the loading bays. Four flanged metal wheels (end carriages) support the machine along the track. 10 The main controls for the Nobby are located inside the cabin where an operator is required to operate the Nobby in the northern and southern direction as required. 11 At the relevant time, the defendant required all maintenance staff to wear high visibility clothing (jackets, vests, overalls) when carrying out their duties at the Site. This policy was implemented in July 1999. Attached and marked 'A' is a copy of a memorandum dated 25 November 1999 from Peter Fenley, the defendant's Property Manager, NSW/ACT, reinforcing to maintenance staff that the wearing of high visibility clothing was a mandatory requirement and that disciplinary action would result if employees failed to wear high visibility clothing. 12 At the relevant time, employees in both the maintenance department and the freight department of the defendant were encouraged to identify hazards at the site and to raise them with their supervisor or leading hand so that they could be dealt with in the appropriate manner. 13 The operational area of the Nobby had been the subject of a risk assessment conducted by the maintenance department dated 24 November 1999. Mr Cairns conducted this assessment. The purpose of the risk assessment was to identify risks for maintenance staff when conducting maintenance in the operational area of the Nobby. It was necessary for maintenance staff to observe or be in attendance at the Nobby while it was in operation. The risk assessment identified that when conducting maintenance, the likelihood of injury in relation to the moving vehicle was considered to be 'very likely' with the consequence being of 'major injury'. The risk level was assessed as being high and the recommended controls to be implemented included visual contact with the driver, competent operators operating the vehicle and staff wearing high visibility vests. Attached and marked 'B' is a copy of the risk assessment conducted by Mr Cairns dated 24 November 1999. 14 Through his training in relation to the performance of maintenance tasks and safety, and his experience in conducting risk assessments of the Nobby, Mr Cairns was aware of the need for caution in being in or about the vicinity of the Nobby while it was in operation. Mr Cairns was familiar with the Nobby itself and was aware that it constantly moved in the northern and southern direction in order to carry out its required functions. 15 Adjoining the tracks of the Nobby approximately 2.8 metres north of the pallet dispatch station, was a door which was marked 20A. Some distance behind the door, there was a maintenance workshop. Access to the maintenance workshop was possible through the door marked 20A. There was a steel barrier, similar to a handrail, in place between the door marked 20A and the tracks of the Nobby. 16 At approximately 2.30pm on 18 January 2000 at the site, Mr Cairns approached the cargo handling facility and commenced walking behind the Nobby between the tracks on which it operated while it was in operation in the northern direction. Mr Cairns was wearing a high visibility vest. 17 Mr Cairns was present on the tracks on the southern side of the Nobby. The Nobby was stopped by the operator and then directed in the southern direction. Mr Cairns stepped into an area between the cabin of the Nobby and the adjacent wall of the International Freight Terminal. Unbeknownst to the operator of the Nobby, Mr Cairns became caught between the cabin of the Nobby and the adjacent wall of the International Freight Terminal. This area varies to a maximum of 34cm wide. Mr Cairns suffered crush injuries and died three days later in hospital. 18 It is not known whether Mr Cairns was present in the area for maintenance purposes or to access the door marked 20A to go into the maintenance workshop area. 19 The defendant failed to have in place a system of work that was safe and without risk to health in that it did not have in place appropriate measures to prevent its employees, in particular Mr Cairns, from being exposed to risk of injury by being struck by the Nobby when it was in operation in that it failed to ensure that a safe system of work was adopted when its employee, Mr Cairns, accessed the area of the Nobby. 7 The photographs placed before the Court assisted me greatly in understanding the layout of the International Freight Terminal, particularly the placement of the Nobby running on the parallel rails in a north-south direction as between the air side and the land side of the International Freight Terminal. As well, the photographs highlighted the doorway marked 20A through which one could enter into the maintenance workshop from the area traversed by the Nobby when in operation. There was also a view of the gap and position where Mr Cairns was trapped during the accident.

8 The defendant's counsel presented evidence in the form of an affidavit from Dr Robert Graeme Peel, the General Manager, Occupational Health Services for the defendant. Dr Peel's affidavit was accompanied by a large amount of annexure material.

9 Dr Peel supplemented that documentary material with brief oral evidence before me. In doing so, Dr Peel verified that the type of operations undertaken by the defendant, in utilising the Nobby to transfer cargo in the manner described, was a well established procedure in freight handling. It is a procedure that has been utilised by the defendant as part of its operations for the past 15 years or so and is continuing to be so utilised.

10 The primary principle when considering the sentencing of offenders under the Occupational Health and Safety Act 1983 as is well known, is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) 90 IR 464 at 474, and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd and Anor (No 2) (2000) 99 IR 163 at para [21].

11 On the evidence before me, accessing the area where the Nobby operated, particularly in operational circumstances, was fraught with considerable risk. That fact was not disputed by the defendant. One of the items of evidence before me was a copy of a risk assessment work sheet conducted in November 1999 in relation to certain aspects of the maintenance area. This document was Attachment 'B' to the agreed statement of facts and the relevant part of it bears repeating for the purposes of this judgment.

12 By way of explanation, in November 1999, Mr Cairns, as leading hand in the maintenance area, and a Mr Dolso, a fellow employee, undertook a risk assessment of a number of activities within the maintenance area. One of the activities that was the subject of such assessment was the operation of the Nobby. It was not in dispute that it was necessary for maintenance staff to observe or be in attendance while the Nobby was in operation.

13 In the risk assessment undertaken in relation to the Nobby, described as a "moving vehicle", the following entry appears: RISK ASSESSMENT WORKSHEET HAZARD IDENTIFICATION LIKELIHOOD CONSEQUENCE RISK LEVEL RECOMMENDATED CONTROLS (sic) (Description of what and how) Visual contact Moving vehicle Very likely Major injury High Competent operator High visibility vests

14 That risk assessment, undertaken in November 1999, only some two months before the accident involving Mr Cairns, identified only too clearly the high risk associated with persons moving in and around the Nobby during its operation, with the very real likelihood and high risk of a major injury if proper controls were not in place.

15 Further, included as part of the explanatory particulars of the charge was evidence of an electric bell within the Nobby that could be rung as a warning sound and two orange warning lights located either side of the cabin of the Nobby that were meant to operate when the Nobby travelled in either direction. A reference to those particulars makes it clear that, at the time of Mr Cairn's accident, the warning bell was inoperative, as was the warning light on the southern side of the Nobby.

16 I make that observation because it is clear from the agreed statement of facts that, immediately prior to the accident that led to Mr Cairns' death, the Nobby had been travelling in the northern direction and Mr Cairns was on the tracks of the Nobby on the southern side. The Nobby was then stopped and directed in the southern direction towards Mr Cairns. The warning light on the southern side of the Nobby was not in operation and the bell was also inoperative. Whether the failure of those two operational items had an impact on what happened to Mr Cairns was not clear on the evidence before me. But I am of the view that their inoperative status was symptomatic of a degree of complacency that pervaded the working environment in the maintenance area of the defendant's premises at the time of Mr Cairns' accident.

17 What I mean by that is that, at the time of Mr Cairns' accident, certain facts and circumstances were evident: · the Nobby was an item of machinery with an assessed very high risk of major injury in its operations; · certain recommended controls were identified in November 1999 as being required to be in place when the Nobby was in operation; · on the day of Mr Cairns' accident at least one of those controls, visual contact, was not being observed; · the operational warning bell within the Nobby was inoperative; and · the warning lights on the southern side (the side Mr Cairns was on) were also inoperative.

18 In other words the defendant went through the exercise of having a risk assessment undertaken in November 1999 in relation to a dangerous piece of machinery and some two months later, at least one of the recommended controls was being ignored. It is also proper to observe, in my view, that the warning bells and lights were meant as an integral part of the Nobby's warning system when in operation and not simply a decoration to be ignored. If they were inoperative, they should have been fixed or their non-operation a reason for attention and extra caution.

19 On first consideration, it could be said that Mr Cairns' failure to establish visual contact with the operator of the Nobby was the immediate cause of the accident. Such a conclusion would deny the underlying role and responsibility of the defendant as the real cause of the accident. On this point I adopt the conclusion of Hungerford J in WorkCover Authority (NSW) (Inspector Martin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at 43 - 44, being that: "the real failure here by the defendant to provide or maintain a safe system of work was the causa sine qua non being the preceding link in the chain of causation …"

20 In the matter before me, the real failure by the defendant was not simply Mr Cairns' failure to fully observe the recommended safety controls on the 18th January 2000, but the failure by the defendant to observe and maintain a safe place of work by adherence to the risk controls identified.

21 Adherence to occupational health and safety is not simply identifying workplace safety risks and how best to control them, but applying those risk control standards by the implementation of safe work practices that are maintained day in and day out in the workplace. The obligations imposed by the Act demand no less.

22 In the circumstances before me I come to the conclusion that, while the defendant identified and well knew of the significant risks inherent in the operation of the Nobby, and the minimum controls necessary to address that risk, it did not follow through in its adherence to them.

23 On all of the evidence before me, it is clear that the operation of the Nobby, as operated by the defendant within the International Freight Terminal, was inherently and objectively dangerous, particularly during periods of its operation. Further, the circumstances and nature of the offence are such that the conclusion that it is objectively serious are inescapable. That objective seriousness is exacerbated by the known and foreseen risk of injury that occurred almost precisely as identified by the defendant in November 1999.

24 The prosecution relied on this identified foreseeability of risk, submitting that the defendant's culpability increased because of that prior knowledge. In doing so, he relied on the decision of a Full Bench of this Commission in Capral Aluminium Limited v WorkCover Authority (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 at 62 where the Court stated: "The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature."

25 The prosecution further relied on additional decisions of this Commission reinforcing that view as expressed in Capral, citing WorkCover Authority (Inspector Lyons) v Warman International Ltd 105 IR 236 at 253 and Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. The prosecution also referred to a passage in WorkCover Authority of NSW v Goodman Fielder Mills Ltd, (Unreported, Marks J, 13 November 1994) and in particular the following passage from his Honour's judgment: "Once senior management became aware of the problem or once circumstances existed which should have resulted in management appreciating that there was a problem, the degree of culpability of the defendant increases accordingly."

26 In my view the objective seriousness of this matter is exacerbated by the high and precise degree of foreseeability of harm identified by the defendant in the operation of the Nobby as well as the failure by the defendant to maintain the safety controls it had already identified and insisted upon.

27 Counsel on behalf of the defendant submitted that there was a need to distinguish between a situation where no steps or measures had been taken to identify a known or foreseeable risk and control measures not complied with, and a situation where the measures turn out to be inadequate. In my view, it was not just that the recommended controls were inadequate but that the risk having been identified, and control measures recommended, they were not maintained.

28 Steps taken by the defendant following the accident to Mr Cairns highlight that, in addition to those recommended controls identified in November 1999, the defendant has seen fit to further review its operations in this area.

29 Evidence given by Dr Peel elaborated upon the steps taken by the defendant as part of its overall review of the safe operation of the Nobby within the maintenance area following the accident. Those steps were: (a) the door marked 20A was locked immediately after the accident and was later made inoperable and boarded up; (b) the maintenance workshop at the International Freight Terminal was demolished and maintenance employees now work from a different workshop; (c) additional fencing was erected in the area to further control access; (d) a senior storeman was appointed as permanent supervisor of the Nobby area to control access to the area; (e) the "Specific requirements - Sydney International Freight Terminal" procedure was developed as part of the Property Safety Management System for maintenance employees; (f) additional signage was erected in the Nobby area; (g) all Nobby operators and other employees in the freight department have specific instructions about maintaining situational awareness of the Nobby and its vicinity, and to stop the operation of the Nobby in the unlikely event that anyone enters the area and to remove that person from the area; (h) an audit of all access and egress doors of the International Freight Terminal was conducted; and (i) relevant training in relation to occupational health and safety matters was conducted.

30 The prosecution submitted that the above steps identified by Dr Peel were simple steps available to the defendant that should have been, and could have been, taken prior to the accident in which Mr Cairns was killed and that, if anything, the identification of these remedial steps were relevant in assessing the seriousness of this offence. In other words, he said, the steps taken by the defendant after the accident demonstrated clear flaws in the risk assessment and in particular the control measures taken prior to the accident.

31 That submission is not without weight and is one that has been supported in previous decisions of this Commission: see Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at para [27] where Walton J, Vice-President stated: "The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant, in my view, to assessing the seriousness of the offence in this case: see WorkCover Authority of NSW v ACI Operations Pty Ltd (unreported, Schmidt J, CT93/1025, 25 February 1994). Whilst the response by the defendants after the accidents was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendants to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (at 21-22): 'The system of effective risk management required by the Act is not met merely by responsive actions to a risk which has been demonstrated to exist. There must be a system of searching for and identifying all possible risks and instituting safety measures to guard against those risks: WorkCover Authority of NSW (Inspector Kelsey v University of Sydney (at 21). The measures suggested and subsequently adopted by the defendant are measures which should have been in place all along …' (my emphasis)

32 The risk assessment undertaken in November 1999 put the defendant on clear notice that it had an inherently and objectively dangerous workplace, having regard to the operational circumstances of the Nobby.

33 The assessed "highly likely" risk of a "major injury" arising in unsafe circumstances in the operation of the Nobby should have acted as a siren call to the defendant to do two things at the very least - insist on the maintenance of the recommended controls and immediately review the operation of the Nobby to examine what steps needed to be taken to actually prevent an accident occurring.

34 The offence charged under s 15(1) of the Act cites a failure on the part of the defendant to "ensure … health, safety and welfare at work". The obligation imposed on employers having regard to the meaning of those words has been expressed, properly, by Watson J in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470 in the following terms: "In their context and purpose, there would appear to be no reason to make any implication that the words 'to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain."

35 In the matter before me, on all of the considerations expressed by his Honour as to the meaning of 'to ensure', the defendant has demonstrably failed.

36 On any reasonable consideration of Dr Peel's evidence, the remedial steps taken were, by and large, relatively straightforward steps. They could easily have been taken at comparatively little cost long before the accident involving Mr Cairns, and certainly after November 1999 when the defendant was clearly aware of the high foreseeability of harm involving the operation of the Nobby.

Determination of penalty 37 In considering all of the facts and circumstances of the matter before me, I determine the offence to be a serious one.

38 Considerations as to penalty must include considerations of general and specific deterrence as part of the sentencing process: Capral Aluminium Limited v WorkCover Authority of NSW (Inspector Mayo-Ramsay) at paras [71]-[80] and in particular the statement of Hungerford J in Fisher v Samaras Industries Proprietary Limited (1996) 82 IR 384 at 388 endorsed by the Court in Capral: "The fundamental duty of the Court in this important area of public concern … (is) to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace."

39 As well, Capral is authority for the proposition that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process (see para [74]) unless exceptional circumstances exist. I do not consider such circumstances exist here.

40 On the question of general deterrence, it is a factor I propose to take into account for the purposes of determining a penalty in this matter. The offence was a serious one and of a nature such that the sentence must embrace considerations of general deterrence.

41 It is well settled that the objective of specific deterrence is to deter the particular offender from repeating the offence. The element of specific deterrence in this matter cannot be disregarded given the high risk nature involved in the operation of the Nobby as part of the defendant's business. The defendant continues to operate the Nobby in the offloading and dispatch of its international freight business. Against that background an element of specific deterrence must be attached to this penalty: WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Australia) P/L (2000) NSW IR 53 at 46; an approach cited with approval in Capral.

42 The prosecution has also acknowledged that the plea of guilty was entered by the defendant at an early time and as a result the defendant is entitled to the proper discount as identified in the guideline judgment of R v Thompson; R v Houlton (2000) 49 NSWLR 383. Accordingly I determine in the first instance that a discount of 20 percent should be allowed to properly acknowledge the early plea of guilty.

43 In addition to the discount available to the defendant having regard to the early plea, I also take into account a number of subjective factors in mitigation. They include the remedial steps taken immediately after and following the accident, the defendant's cooperation with WorkCover concerning this matter embracing the defendant's on-going commitment and allocation of resources to occupational health and safety, as well as the overall contrition expressed by the defendant, including the assistance afforded to the family of Mr Cairns.

44 The industrial record of the defendant is also particularly relevant. The defendant has been operating its business since 1920 and at the time of the accident employed some 31,000 people. In the prosecution's own words the defendant's industrial record was "very good". That is a factor that must clearly militate in favour of the defendant: WorkCover Authority (NSW) (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34 at para [35].

45 As indicated earlier, the defendant has prior convictions which raises the maximum penalty for the purposes of this offence to $825,000. The offences identified before me are three in number and, on any view, given the defendant's large number of employees and its years of operation, support the defendant's claim to be seen as a good industrial citizen. The prior convictions of the defendant disclose an offence in 1991 for which the defendant received the benefit of the then section 556A of the Crimes Act. That offence, as I am advised, involved an injury to an employee's hand in the operation of a conveyer belt. The next offence occurred in 1992. That was an offence under the Act for which a penalty of $1500 was imposed and involved an injury to the foot of a person in circumstances surrounding a platform being used in loading a person into an ambulance. The third prior conviction of the defendant occurred in 1999, for which the defendant was fined $8000. That arose from an injury to a contractor's employee while exiting from an aircraft. All of those matters were dealt with before the Chief Industrial Magistrate. None of those matters, as is evidenced by the details provided, are in the nature and category of the one before me.

46 As is well established, such prior convictions do not of themselves justify a greater penalty than the offence before me warrants: they merely disentitle the defendant to the full measure of leniency that it would normally be given in the absence of a prior criminal record: R v Hall (1974) 1 Cr App R (S) 27; R v Galloway (1979) 1 Cr App R (S) 311; R v The Queen (1981) 3 Cr App R (S) 245 and as cited by Haylen J in WorkCover (NSW) (Inspector Barnard) v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107 at para [31]. 47 Taking into account the subjective features I have identified, I allow a further discount of 15 percent. I convict the defendant of the offence to which it has pleaded guilty. I fix a penalty of $300,000 in the first instance. Applying the total discount determined of 35 percent results in a fine of $195,000.

48 A moiety of the penalty is sought by the prosecution which I will provide for. The prosecutor's costs have been agreed in the sum of $13,000 and I will make an order in those terms.

49 In this matter I make the following orders: (1) The defendant is convicted of the offence as charged; (2) The defendant is fined an amount of $195,000, with a moiety to the prosecutor; (3) The defendant is to pay the prosecutor's costs of $13,000.

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Occupational Health and Safety Act 1983(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (9)

Cited By (1)