Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW (Insp Shoobert) v Anchor Plastics Pty Ltd [2001] NSWIRComm 204 PROSECUTOR WorkCover Authority of New South Wales (Inspector Shoobert) PARTIES : DEFENDANT Anchor Plastics Pty Ltd FILE NUMBER: IRC 4309 of 2000 CORAM: Marks J CATCHWORDS : Occupational Health and Safety prosecution - Plea of guilty - Circumstances analogous to a casual act of negligence of an employee LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) CASES CITED : R v Thomson, R v Houlton (2000) NSW CCA 309 State Rail Authority of NSW v WorkCover Authority of NSW (2000) 102 IR 218 at 236 HEARING DATES: 08/02/2001; 08/03/2001 DATE OF JUDGMENT: 09/13/2001 PROSECUTOR Ms A F Backman of counsel SOLICITORS WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT Mr L V Gyles of counsel SOLICITOR Mr David Hand JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Thursday 13 September 2001 Matter No IRC 4309 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR SHOOBERT) v ANCHOR PLASTICS PTY LTD Prosecution under s 15 (1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 By summons the defendant Anchor Plastics Pty Ltd has been charged by the Prosecutor Inspector David Shoobert of the WorkCover Authority of New South Wales with a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act"). 2 The charge and the particulars of the charge as contained in the summons are as follows: On 2 October 1998 at premises at 5 Marshall Road, Kirrawee, in the State of New South Wales, the defendant, being an employer, DID FAIL to ensure the health, safety and welfare at work of all its employees, and in particular, Damien Faux in failing to provide or maintain systems of work for the operation of a forklift truck that were safe and without risks to health contrary to Section 15(1) of the Occupational Health and Safety Act, 1983. The particulars of the charge are: a. The defendant at all material times employed a number of personnel, including Damien Faux. b. The defendant failed to provide or maintain systems of work to ensure that the keys were removed from the forklift truck ignition and kept in a secure place when the forklift was left unattended. c. The defendant failed to provide or maintain systems of work to ensure that the forklift truck was only used by certified forklift truck drivers or persons on a National Certification Log Book. d. The defendant failed to provide or maintain systems of work to ensure that the forklift was not required to be driven across an inclined concrete driveway. e. The defendant failed to provide or maintain systems of work to ensure that the forklift was being used within a safe operating capacity. f. As a result of said failures Damien Faux suffered fatal injuries, and other employees were placed at risk of injury. 3 The prosecutor had also commenced proceedings against the defendant in Matter No IRC 4310 of 2000 by way of summons alleging a breach of s 15(1) of the Act arising out of the same circumstances. The essence of the charge in that summons was one of failing to provide employees with information and training necessary for the safe operation of the forklift truck. 4 Both summonses were issued on 29 August 2000. Up until the commencement of the hearing fixed for 2 August 2001 the defendant had indicated its intention to plead not guilty to charges contained within both summonses. At the commencement of the hearing the Court was informed that the prosecution would offer no evidence in matter No IRC 4310 of 2000 agreeing with an order that those proceedings be dismissed and the defendant indicated that it would plead guilty to the charge brought in Matter No IRC 4309. 5 An agreed statement of facts was filed in the proceedings. Apart from formal matters, the following contents are relevant: At approximately 1.30am on 2 October 1998 Damien Faux, aged 26 years, and employee of the defendant, sustained fatal injuries when the forklift truck he was driving overturned, crushing him between the descending forklift truck and the concrete surface of an inclined concrete driveway. WorkCover was notified by telephone that an accident had occurred and Inspector John Lennon attended the scene at 3.20am on 2 October 1998. Inspector Lennon viewed the scene in the company of Detective Senior Constable Kurt Waters of the Hurstville Crime Scene Unit, and Brian Harward and Don Parker, directors of the defendant. A report was completed and photographs taken. The following observations were made: a. Two adjacent factory units with a sign across the front located above the upper story window line bearing the words "anchor plastics pty ltd". (sic) b. A concreted area across the front of the factory units which was approximately 29 metres along the front of the units and approximately 16 metres wide at the widest points including car space. c. A sloping concrete driveway from Marshall Road. The slope was measured at approximately 1.20. d. A Toyota LPG powered forklift truck Model 5FG-15 with NSW Registration number OKV804 which had an orange coloured mast, orange base for the driver's seat, blue body and dark blue roll-over cage and which was rolled over onto its near side and resting on the concrete slab in the front of the factory units. The wheel axles were 1.5m apart. The distance from the top of the roll-over cage to the wheels was 2 metres. e. The wheels of the forklift truck were facing away from the factory units and towards the sloping driveway. The overturned forklift truck was located to the right of the bottom of the sloping driveway and to the right of the first unit's roller door looking from Marshall Street towards the factory units. f. The exact location of the forklift ruck was directly in front of a glass entry door into the first unit which was located to the right of the roller door of that unit when looking towards the units from where the forklift had come to rest. The top of the roll-over cage was 4.4m in front of the first factory's outer front wall and the back end of the vehicle was approximately 8.9m from the left-hand side edge of the concreted area in front of the units while the front end of the vehicle was approximately 19.6m from the right-hand side edge of the concreted area in front of the units. g. A deceased male person was lying on the concreted area between the roll-over cage of the forklift truck and the outer front wall of the first factory unit. The deceased had bloodied marks across his shoulder blades, his lower back and at the back of his left ribcage area. h. Skid marks on the concreted area of the sloping driveway which curved from left to right when looking from Marshall Street down the driveway towards the factory units. i. Gouge marks across the tread of the rubber tyres of the vehicle and the upholstery of the driver's seat was badly ripped. 6 Certain additional documentary evidence was tendered on behalf of the prosecution. In addition Donovan James Parker a working director of the defendant company and Stephen Colin Griffin, the foreman on duty at the time that the incident occurred both gave oral evidence. Mr Griffin prepared a sketch of the factory area in the course of giving his evidence. 7 From the additional evidence given the following further facts may conveniently be summarised: 1. The defendant's business commenced some 32 years ago and it is engaged in the manufacture of plastic components. There are four distinct areas in the factory premises namely a storage area for raw materials, an area where the moulding machines and other operating equipment are kept, offices and a finished products store. The defendant employs between 24 and 26 employees, depending upon requirements. There are two working directors, an office manager, and a production manager. In addition on each of the day and afternoon shifts there is a foreman, die-setter and loader together with between four and six process workers. On the evening shift there is a foreman and two process workers only. 2. The business has been in operation for a total of 32 years. A new company structure which is the present defendant was created in 1987. There have been no prior convictions over the 32-year period for any safety related offence. 3. Prior to the accident the defendant did not have any formal safety system in place. There were production meetings held regularly which discussed safety issues as well as other matters. Decisions were not normally documented although some notes were kept. In addition safety matters were dealt with on an ad hoc basis. If the foreman saw something which was not safe he would either fix it or bring it to the attention of a working director. No records were kept of these matters. 4. Mr Parker was deeply upset by the incident. He contacted the family of the deceased worker and attended his funeral. The incident caused the defendant to look more carefully at safety issues within its operations and, although no specific evidence was made available, it was said that the company has learned from what occurred and is more safety conscious. 5. The company has provided rehabilitation for injured workers who sustain injury whilst employed with other employers. It has undertaken this work at the request of rehabilitation providers retained through the WorkCover Authority and has provided light duties for these persons. It has also undergone an inspection of its work environment including ensuring that there are safe working practices for these persons undergoing employment rehabilitation. 6. The defendant cooperated fully with the WorkCover Authority in connection with its investigation. That Authority was given full access to the premises and all employees were made available to assist in the investigation. In addition all of the prohibition notices referred to in the Statement of Agreed Facts were complied with within the time limit set. Mr Parker had discussed Mr Faux's progress with him and was satisfied that he was "going all right". ASSESSMENT OF PENALTY 8 It is first necessary to consider the objective seriousness of the offence. In determining this issue I take into account that the deceased was 26 years of age, had only been employed by the defendant for a short period, had been instructed albeit orally not to drive the forklift, was not, on the evidence, required to drive the forklift in or in connection with any employment duties, at the time of his death was driving the forklift during a work break and had never previously been known to have driven the forklift. The forklift was kept in the storage area, away from the work area where he carried out his duties and away from any amenities area. At the time that the incident occurred only a limited number of people were present in the premises. Based on the evidence of Mr Griffin it seems clear that he could not have reasonably been expected to have anticipated that the deceased would have attempted to drive the forklift on that occasion. As I have said, there was absolutely no work-related reason why he would do so, and he had been told not to drive the forklift in any event. There was no work required to be done in and about the defendant's operations involving the use of the forklift. I can only infer that the deceased drove the forklift for some personal purpose un-associated with any work activity. The culpability of the defendant centred around leaving the ignition key in the parked forklift. 9 In these circumstances, whilst the consequences of the deceased's action and the defendant's breach were serious, I do not characterise the breach itself being a serious one viewed objectively. It is more analogous to accidents caused by casual acts of negligence of employees. As I have said, the principal culpability lies in the positioning of the ignition key. 10 In assessing an appropriate penalty I also take into consideration the following matters: 1. The defendant's previous record, namely 32 years of operation without any prosecution. 2. The defendant's contrition. 3. The defendant's good industrial citizenship demonstrated by its commitment to rehabilitation programmes. 4. The cooperation manifested by the defendant with the WorkCover Authority investigation and its ready compliance with the prohibition notices. 5. There was no wilful or knowing disregard for safety and certainly no evidence of any systematic breach of safety requirements. However as against this there is the evidence that the defendant did not have any formal safety system in place prior to the accident and that safety matters appear to have been dealt with on an ad hoc basis with no records being kept. 6. Measures have been taken to prevent a reoccurrence of the incident by ensuring the safekeeping of the ignition key. 11 This leaves outstanding one issue only namely the fact that the defendant pleaded guilty and whether in all the circumstances there ought to be some allowance made in the setting of the penalty for this fact. 12 The summons in these proceedings was issued on 29 August 2000 together with another summons in matter no. IRC 4310 of 2000 which alleged a breach of section 15(1) of the Act in connection with the same circumstances that gave rise to these proceedings. Both matters were mentioned on a number of occasions before the Registrar of this Court. On 1st March 2001 the defendant indicated that there would be a plea of not guilty entered with respect to both matters. I conducted pre-hearing directions in both matters on 13 March 2001 when they were both fixed for hearing on 2 and 3 August this year. 13 On 26 July 2001 the defendant's solicitor made contact with a solicitor employed by the prosecutor. Negotiations commenced leading to an agreement that the prosecutor would withdraw the charge in Matter No 4310 and the defendant would plead guilty to the charge in these proceedings. 14 In R v Thomson; R v Houlton (2000) NSW CCA 309 the New South Wales Court of Criminal Appeal issued a guideline judgment which dealt with the discount to be applied in criminal proceedings where a plea of guilty has been entered. This guideline judgment has been applied on many occasions by this Court including at Full Bench level (see for example State Rail Authority of New South Wales v WorkCover Authority of New South Wales (2000) 102 IR 218 at 236 and following). The Court of Criminal Appeal guideline judgment makes specific reference to the utilitarian value of a plea of guilty, which is generally to be assessed in the range of ten to twenty five percent discount on sentence. This is in addition to other factors which may militate towards a higher discount. 15 The defendant submitted that it should have the benefit of some discount by having entered a plea of guilty "notwithstanding that the plea was not communicated to the Court until the day before the contested hearing." Whilst the submission of Mr Gyles of counsel conceded that an earlier approach to the prosecutor could have been made on behalf of the defendant he said that the prosecutor also could have entered into negotiations with the defendant at an early stage. I do not regard this as being a realistic approach. 16 The prosecutor said that at the time the contact was made the matter had been fully prepared on the basis of a defended hearing. In these circumstances I intend to allow a discount at the bottom of the range referable to the utilitarian value of the plea of guilty, namely ten percent. 17 Although, as I have stated, the circumstances surrounding the prosecution involved the death of an employee, the culpability of the defendant in all the circumstances is, in my opinion, slight. I propose to fix a penalty in the sum of $17,000 and apply a ten percent discount to this amount. ORDERS 18 I make the following orders 1. The defendant is found guilty and convicted of the offence charged in the summons. 2. The defendant is fined the sum of $15,300 together with a moiety to the WorkCover Authority of New South Wales. 3. The defendant is to pay the costs of the prosecutor fixed by the Court in default of agreement. ____________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.