 |
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Court Results
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Industrial Relations Commission of New South Wales
in Court Session
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CITATION
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WorkCover Authority (NSW)
(Inspector Glass) v Qantas Airways Limited [2002] NSWIRComm
258 |
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PARTIES
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PROSECUTOR:
Inspector
Frank Glass
DEFENDANT:
Qantas Airways Limited |
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FILE
NUMBER: |
86 of 2002 |
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CORAM: |
Staunton J |
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CATCHWORDS
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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 |
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LEGISLATION CITED
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Crimes Act 1900 s
556A
Occupational Health and Safety Act 1983 s 15 s 51A |
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CASES CITED
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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
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)
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HEARING
DATES: |
09/09/2002 |
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DATE OF
JUDGMENT: |
10/10/2002 |
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LEGAL
REPRESENTATIVES: |
PROSECUTOR:
Mr. G
Phillips
SOLICITORS:
Carroll & O'Dea
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
JUDGMENT
[2002] NSWIRComm
258
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.
Offence charged and
particulars
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.
Agreed
facts and other evidence
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.
Relevant
considerations
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
(Description of what and
how) |
LIKELIHOOD |
CONSEQUENCE |
RISK LEVEL |
RECOMMENDATED CONTROLS
(sic) |
| Moving
vehicle |
Very likely |
Major injury |
High |
Visual
contact
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.
Orders
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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