Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW (Inspector Mulder) v Perisher Blue Limited [2002] NSWIRComm 289 PROSECUTOR: Inspector John Mulder PARTIES : DEFENDANT: Perisher Blue Limited FILE NUMBER: IRC 6104 of 2001 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - objective seriousness of offence - foreseeability - potentially dangerous operation with high level of risk - specific deterrence - penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsey) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 CASES CITED : Lawrenson Diecasting v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 R v Thompson, R v Houlton (2000) 49 NSWLR 383 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Limited (2000) NSWIRComm 53 HEARING DATES: 09/24/2002 DATE OF JUDGMENT: 10/31/2002 PROSECUTOR: Ms McManus of Counsel SOLICITORS: Legal Services Branch WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr Goot SC SOLICITORS: Dibbs Barker Gosling Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J 31 October 2002 Matter No. IRC 6104 of 2001 WorkCover Authority of New South Wales (Inspector Mulder) v Perisher Blue Limited Prosecution under s 15 (1) of the Occupational Health and Safety Act 1983 JUDGMENT [2002] IRComm 289 1 On 16 September 1999 the defendant operated a ski resort at Mount Perisher, Kosciusko Road, Perisher Valley, New South Wales. As part of the operation of that resort, the defendant operated the Mount Perisher Double Chair lift. 2 On the morning of 16 September, four employees of the defendant boarded the Double Chair lift at its base. They were to be transported to the top of Mt Perisher from where they were to ski to their workstations for the day. 3 Two of the employees, Tyler Phillipson and Katherine Robertson boarded chair 36 of the Double Chair lift. The other two employees, Rohan Smith and Brendan Cordang, boarded Chair 37. 4 While in transit, a combination of high winds and the swinging motion of the chairs caused the haul rope with chairs 36 and 37 in tow to be dislodged from the haul rope sheave onto the cable catcher and then dislodge from the cable catcher. As a result chairs 36 and 37 dropped to the ground and all four employees were injured. Offence charged and particulars 5 As a result of the accident, the defendant was charged with an offence under section 15 (1) of the Occupational Health and Safety Act 1983 ("the Act") in the following terms: The defendant FAILED TO ensure the health, safety and welfare at work of all its employees, in particular Tyler Phillipson, Katherine Robertson, Rohan Smith and Brendon Cordang, in failing to ensure the health safety and welfare at work of its employees contrary to Section 15(1) of the Occupational Health and Safety Act 1983. In particular the defendant : (a) failed to provide plant, namely the Mt Perisher Double Chair lift, that was safe and without risks to health; (b) failed to provide or maintain systems of work that were safe and without risks to health 6 On 23 May 2002, the defendant entered a plea of guilty to the offence as charged. 7 At the hearing of this matter before me, the prosecution tendered an agreed statement of facts and a number of photographs. Those photographs identified the Double Chair lift and, particularly, certain aspects of it and its operation. Counsel for the prosecution also confirmed that the defendant had no prior convictions. Accordingly the maximum penalty for a breach of the offence before me is $550,000. The agreed statement of facts placed before me were as follows: 1. At all material times the Defendant, PERISHER BLUE PTY LTD [ACN: 061 232 488] ('the Defendant') was a company duly incorporated with its registered office situated at Level 3, 54 Park Street Sydney , in the State of New South Wales. 2. At all material times the Defendant was an employer. 3. At all material times the Defendant employed Tyler Phillipson, Katherine Robertson, Rohan Smith and Brendon Cordang as lift operators. 4. At all material times the Defendant amongst other things, carried on the business of operating a ski resort at Mt Perisher, Kosciusko Road, Perisher Valley in the State of New South Wales ('the Resort'). 5. The Resort incorporates an area known as the Mt Perisher ski area and comprised separate but contiguous ski areas known as Mt Perisher, Blue Cow Guthega, Smiggin Holes, Centre Valley and Front Valley. Each ski area had an area office and the Resort had a head office at Front Valley ('Head Office') . 6. As at 16 September 1999 forecasts issued by the Canberra Office of the Bureau of Meteorology ('Bureau') for the Snowy Mountains Region (covering southern tablelands and south west slopes above 1200 metres) issued at various times of the day were received by facsimile at the Head Office. The forecasts faxed to the Head Office included one issued by the Bureau at 4.00 pm containing a forecast for the night of the date of issue and the following day. That forecast was faxed each afternoon, interalia to the Mt Perisher area office. 7. On 16 September 1999 the Defendant owned and had control over, the Mt Perisher Double Chair lift ('Double Chair') . The Double Chair comprised chairs attached at regular intervals to a haul rope by a fixed mechanical grip attachment. The haul rope travelled around bull wheels at the bottom and top stations and was suspended between those stations on a series of lattice type steel towers. Each tower had a crosshead supporting haul rope sheaves. Cable catchers were located on the towers adjacent to the haul rope sheaves to prevent the haul rope from completely derailing from the tower if it was dislodged from the haul rope sheaves. 8. On 16 September 1999 Lee Paterson who was employed by the Defendant at the Resort as the Mt Perisher Ski Area Supervisor and who was undertaking manager's duties was responsible for running the Double Chair, the Mt Perisher Triple chair and 5 T- bar lifts. 9. A weather forecast issued by the Bureau at 4.00 pm on 15 September 1999, ('First Forecast') was received at the Head Office shortly after 4.00 pm on that day. The First Forecast was then faxed to the Mt Perisher area office. The First Forecast, contained an alps forecast of "Cloudy periods and windy with some rain developing tomorrow, tending to snow tomorrow night. Mild moderate to fresh northwest winds, becoming fresh to strong tonight and tomorrow, reaching gale force around the peaks". The First Forecast also contained a land gale force wind warning for the Snowy Mountains region. 10. A weather forecast issued by the Bureau at 5.30 am on 16 September 1999, ('Second Forecast') was sent by the Bureau to the Head Office sometime after 5.30 am on that day. The Second Forecast, contained an alps forecast of "Cloudy with rain periods and local thunderstorms, tending to snow tonight. Strong to locally gale force north to north west winds". The Second Forecast also contained a gale warning for the Snowy Mountains region. 11. In accordance with his normal practice Mr Paterson would have received the First Forecast late in the afternoon on 15 September 1999 and had regard to it. He did not receive the Second Forecast on the morning of 16 September 1999. 12. On 16 September 1999 Mr Paterson, as part of his normal duties, travelled by Skidoo to the top and bottom of all lifts in the Mt Perisher area. He arrived at the top station of the Double Chair at about 6.10 am to check the weather conditions including the immediate wind strength and its direction. At the top of the Double Chair he observed that there was little to no wind. 13. Wind and speed direction checks were carried out by observations and inquiries at the time. This included Mr Patterson looking at chair movement, the sky and feeling the wind. 14. As part of his normal practice, Mr Patterson then contacted Mr Jack (the Resort's General Manager Operations) from the top of the Double Chair by telephone for a second opinion about the wind and weather situation. Mr Jack's opinion was to run the staff up the Double Chair and to re-assess the weather situation once the staff were at their stations. 15. Mr Paterson also called Phil Granger, the Defendant's Centre Valley Area Manager, to enquire what his wind meter was reading and about the wind and weather conditions at that area. The Double Chair and Centre Valley Quad Chair are approximately one kilometre apart at the bottom stations and 1.5 kilometres apart at the top stations. The elevation of the Centre Valley Quad Chair (the Quad Chair) is about 1735 metres at the bottom and 1990 metres at the top loading station. The Double Chair is at 1760 metres at the bottom loading station and 2038 metres at the top loading station. Mr Patterson was told that the Quad Chair lift was going to operate as wind was not a problem. It was generally agreed that if Mr Granger stopped the Quad Chair because of wind direction all the Resort's chair lifts would close down without question. At about the same time Mr Patterson also heard on his two-way radio that at the Blue Cow Guthega area, all lifts were running. 16. The weather including wind can change in the Snowy Mountains. Gusting wind, wind direction and wind speed may affect the safe operation of the Double Chair. Gusting wind has a different effect than a constant wind. Wind direction can have other effects. Wind speed is another variable and the terrain and vegetation may provide wind protection or cause turbulence. 17. Mr Patterson was authorised to decide whether the Double Chair ran or not. The lift operators relied on Mr Patterson to decide whether to run the Double Chair. 18. The checks at the top of the Double Chair took about 20 minutes. 19. Mr Paterson then decided to operate the Double Chair and proceeded to check the rest of the area before returning to the bottom station of the Double Chair. 20. At about 7.30am lift operators, employed by the Defendant, arrived at the base of the Double Chair. The operators were to be transported by the Double Chair to the top of Mt Perisher, from where they were to ski to their workstations for the day. 21. At about 8.15 am lift operators Tyler Phillipson and Katherine Robertson boarded the first occupied chair (36) of the Double Chair. Subsequently lift operators Rohan Smith and Brendon Cordang boarded chair 37. Chair 38 was vacant and the subsequent five chairs (39 to 43) were occupied by lift operators. 22. Mr Geoff Simpson, lift operator, was asked to watch the wind as he rode up and report back to his supervisor. Mr Victor Sobol, lift operator and last in line to be loaded onto the Double Chair, was asked by Mr Patterson to keep Mr Patterson informed throughout the day while he was up there. 23. When chairs 36 and 37 of the Double Chair were in the vicinity of Towers 5 or 6, the wind started to strengthen. The chairs of the lift began to swing from side to side. 24. At about 8.30 am, as chair 36 approached Tower 8 a gust of wind caused the haul rope to dislodge from the haul rope sheaves and apparently to land in the cable catcher and then to dislodge from the cable catcher. 25. Chairs 36 and 37 then dropped to the ground. 26. Tyler Phillipson sustained a broken wrist and ligament and nerve damage. Katherine Robertson sustained a broken ankle and bruising. Rohan Smith sustained a compressed fracture of the left vertebrae. Brendon Cordang sustained muscular injury to his lower back. 27. On 21 November 2000 Inspector Dieter Franke, of the WorkCover Authority of NSW attended the bottom loading/unloading station at the base of the Double Chair. 28. He observed the following: (a) Approximately 70 chairlift chairs laying on decking. These were identified as the chairs attached to the chairlift during the Ski season; (b) Erected on the decking was a structure known as a Bullwheel. Its main component being a large spoked wheel and a series of rope sheaves, on which the haul rope travels around. The haul rope was held on the sheaves by the tension of the counter weights located in the main building at the base of Mt Perisher Double Chair Lift. The lift consisted of the following: i. Five (5) chair lift chairs were attached to the hauling rope at regular intervals by a mechanical grip arrangement; ii. The haul rope travels around the Bullwheel and guide sheaves to a steel tower of T shape construction approximately 15 metres up the mountain; iii. From this point the hauling rope travelled up Mt Perisher supported by a series of lattice type steel towers; iv. Each tower had a crosshead that supported rope sheaves on both sides and a steel, work platform for service and maintenance purposes; v. The chair lift power source was electricity. Since the accident the Defendant has taken the following measures: a. Wind speed and direction monitors have been fitted to tower 8 of the Double Chair and tower 15 of the triple chair (which runs parallel to the Double Chair). These give an overall coverage on different wind directions and its effect on both chairs. The monitors will slow or shut down the Double Chair when the wind gets to a predetermined speed from the south or north; b. Support compression sheaves assemblies have been installed on Towers No 3, 4, 7, 8, 9 and 10 of the Double Chair. 30. At the time of the incident the Defendant had control over the Mt Perisher Double Chair lift at Mt Perisher, Kosciuszko Road, Perisher Valley and its immediate environs. 31. The Defendant failed to ensure the health, safety and welfare at work of all its employees, in particular, Tyler Phillipson, Katherine Robertson, Rohan Smith and Brendon Cordang. The Defendant failed: a. to provide plant, namely the Double Chair, that was safe and without risks to health; b. to provide or maintain systems of work that were safe and without risks to health 8 Counsel on behalf of the defendant tendered three statements with annexures as well as additional photographs that showed close up aspects of the Double Chair lift, particularly of the haul rope as it travels along the haul rope sheave. As well there was a photograph of the cable catcher sitting alongside the haul rope sheaves at the top of the relevant towers forming part of the Double Chair lift. 9 The statements tendered by the defendant were from: (i) Mr Barry Turel, Assistant Mountain Manager with the defendant (ii) Mr Robert Desmond Jack, General Manager, Operations with the defendant (iii) Mr Darrel John Dean, Ski Patroller with the defendant. He was rostered to work in the Front Valley and Centre Valley areas of the Perisher Blue Ski Resort on 16 September 1999. Sometime after 8 am on that day, he road the Quad Chair lift to the Ski Patrol Hut located adjacent to the Mid Station of the Quad Chair. The Quad Chair lift is part of the Perisher Valley Resort but is located some one kilometre or so from the Double Chair lift that was the subject of the accident before me. 10 The statements of Mr Turel and Mr Jack were supplemented by significant annexure material that I will refer to in due course. 11 In addition to their documentary material, Mr Turel and Mr Jack gave brief oral evidence. Relevant considerations 12 The main purpose of the oral evidence given by Mr Turel and Mr Jack was for the purposes of cross examination by counsel for the prosecution - particularly to explore the issue of the prevailing wind conditions on the day relevant to opinions expressed by them in their affidavit material about that matter. 13 It is pertinent at this point to indicate the respective backgrounds of Mr Turel and Mr Jack in order to ground the views expressed by them on that issue. 14 Mr Jack has been the General Manager Operations for the defendant over the past two and a half years. Prior to that he has been employed by the defendant on a seasonal or full time basis since 1985. His seasonal employment was from 1985 to 1990. Since 1990 he has been employed full time. Over the entire period of his employment he has occupied positions, commencing in 1985 to the present, in the following order: · maintenance fitter · area supervisor · area manager · mountain manager · ski area manager · general manager, operations 15 Mr Jack's key responsibilities in his current position are diverse but, relevantly, include, to: · make policy decisions and accept responsibility for operations, performance of managers and staff, achievements of targets and objectives and adherence to budgets, policies and procedures and legislative/statutory compliance. 16 Mr Barry Turel is currently the Assistant Mountain Manager for the defendant and has held that position for the past nine months. He has been employed by the defendant since 1981, predominantly on a full time basis. He has progressed through operational and maintenance ranks to his current management position as follows: · lift operator · ski lift maintenance fitter · area supervisor · lift manager · snowmaker and snowgroomer · area supervisor · area manager · area manager and lift maintenance coordinator · assistant mountain manager 17 Mr Turel's current responsibilities are directing the operational and maintenance activities of the Mountain Department. This includes management of all Mountain resource infrastructure including the implementation of procedures applicable to ski lifts including the Mount Perisher Double Chair lift. 18 There seems little doubt that both Mr Turel and Mr Jack are persons of considerable experience when it comes to assessing, amongst other things, the appropriateness of operating chair lifts such as the Double Chair lift, taking into account prevailing weather conditions, particularly wind. 19 In determining an appropriate sentence for the breach before me, the objective seriousness of the offence to which the plea of guilty has been entered must be considered: Lawrenson Diecasting v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 474. That approach requires me to have regard to the nature and quality of the offence to determine those factors that, taken together, would constitute an objectively serious offence. Included as part of those considerations is the issue of foreseeability, expressed in Lawrenson Diecasting at 476 as follows: "It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9." 20 In the matter before me, the real issue in dispute was the foreseeability of the risk given the circumstances of the accident. On that issue and particularly on the question of wind as a significant factor in the derailment of the haul rope from the haul rope sheave and the cable catcher, both Mr Turel and Mr Jack had an opinion. Mr Turel said: "In my opinion the strength and force of the wind was such that it caused a significant deflection in the haul rope sideways to the direction of travel, forcing the rope out of the sheave groove, off the assembly and on to the rope catcher and thereafter out of the rope catcher. The rope was retained on neighbouring towers 7 and 9 and did not derail at these points. In my experience, for the wind to have such an effect is unique and suggests to me that it must have been an extreme wind gust." Mr Jack's opinion was: "Since I have been employed with Perisher Blue and prior to the derailment on 16 September 1999, the Double Chair had never completely derailed. In my experience, for the haul rope of the Double Chair to have completely derailed would require an extreme gust of wind of such force which is unprecedented in my experience." 21 Despite some differences in emphasis as to how 'extreme' or 'unprecedented' the wind was at the relevant time on 16 September 1999, there is no dispute between the parties that the strength of the wind was a significant contributor to the accident that occurred on that day. Equally, it seems to me, the strength of the wind was such that it caused the relevant chairs to swing from side to side or exacerbated the normal swing of the chairs from side to side, that is, in towards the tower and away from them. 22 As to the effect of the combined momentum of wind and swing to cause the haul rope to come off the haul rope sheave, Mr Jack was somewhat equivocal as the following exchange with counsel for the prosecution illustrates: Q. The momentum caused by occupied chairs swinging from side to side and the strengthening wind, that could have caused the haul rope to leave the sheave and leave the cable catcher? A. I don't understand the question; if you were saying would it derail, would it come off the sheave at tower 5, that is a possibility, yes. Q. And as the chairs; so when they are leaving tower 5 they go past tower 6, and they go past tower 7, they come to 8 and it is still continuing where the chairs are swinging, and the wind is blowing; that could cause the derail from the sheave and the derail then from the cable catcher, the cup from tower 8? A. That would depend on how much swing there was and I don't know how much swing there was in the chair. Q. They are factors that would be taken into account in assessing how a haul rope could leave both the sheave and how the haul rope would leave the cable catcher? A. In my opinion I believe it is possible; I can't sit here and say it is not possible but I believe it would not come out of the catching shoe (sic). and further - Q. … what I put to you was the momentum of the chair swinging plus the wind could cause it to come off not only the sheave and the cable catcher? A. I said that is possible but in my experience over the years that hasn't happened. 23 By way of explanation, it should be added at this point that, in evidence given before me, the expression 'cable catcher'/'cup'/'catching shoe' were used interchangeably to describe the same thing. 24 On the issue of wind generally, Mr Turel's evidence in cross examination was as follows: " A. It is an inherent part of ski fields that there is wind. We run chair lifts in wind a lot and we run chair lifts successfully in wind, a lot of wind. This was an extreme case. Q. You said you run chairs in the wind, you also stop chairs being run in wind? A. Yes. Q. That is because injuries could occur? A. Yes. Q. Not only injuries but damage to the equipment could occur as well? A. Yes. Q. And it is the case that momentum caused by people swinging on the chairs because of the wind and a build up of the wind could cause the rope to derail, not only from the sheave but also the cup? A. You need stronger winds to do it with people there." 25 Notwithstanding the reluctance of Mr Jack and Mr Turel to concede the possibility of the above described phenomena occurring, on balance, in the absence of any other explanation and on any reasonable consideration of the combined actions of wind and chair swing as described, it is what happened. That is, that at the time chairs 36 and 37 approached tower 5 on 16 September 1999, the wind strength and direction was such or became such as to cause the respective chairs to swing from side to side. Further, in the time that it took chairs 36 and 37 to travel between tower 5 and tower 8, the wind strength and direction had maintained and even intensified, exacerbating the swinging motion of the chairs. This in turn caused the haul rope to dislodge from the haul rope sheaves and land in the cable catcher and then dislodge from the cable catcher. That action caused chairs 36 and 37 to drop to the ground. 26 The process described above was not seriously in dispute as between the parties. What was a point of some contention, at least as far as the prosecution was concerned, was the foreseeability of risk of the circumstances occurring as they did. Mr Turel said that the circumstances as described were "unique" and that the wind gust must have been "extreme" [paragraph 33 of his statement]. 27 As well, Mr Jack used words to describe what happened as "unprecedented in (his) experience" and that the wind must have been "extreme". 28 What is not in doubt concerning this issue is that, for the Double Chair lift to operate safely, proper attention has to be paid to prevailing weather conditions, particularly wind. That much is clear from the gathering and distribution of the official weather reports by the defendant received from the Bureau of Meteorology as well as on-the-ground assessment based on years of accumulated experience in the vagaries of weather patterns. Mr Jack described such an assessment as "ground truthing" and explained it as follows: "Essentially 'ground truthing' is a term used to describe first hand observation of weather conditions. All mountain staff are instructed to monitor the weather conditions at all times during the day having regard …to their own observations of wind, cloud and other weather features that occur across their section of the ski area. 'Ground truthing' serves to validate or otherwise the published weather forecasts by direct observation at each particular location. More often than not, direct observation of daily weather conditions by ground truthing is a more accurate and reliable guide to the prevailing weather conditions at a particular location than (the forecasts) published by the Bureau … because each forecast publishes a much larger geographic area than what 'ground truthing' provides within each ski area that makes up the resort." 29 In other words, up-to-date knowledge and assessment of weather forecasts was, and is, critical to the safe operation of the defendant's business. Equally, on all of the evidence before me, a failure to consistently monitor weather conditions, given the possibility of weather conditions changing significantly and quickly, could pose considerable and foreseeable risk to the safe operation of the defendant's business. That much, it seems to me, is acknowledged inferentially by Mr Jack in his evidence detailed above, that bears repeating in part as follows: "All mountain staff are instructed to monitor the weather conditions at all times during the day having regard … to their own observations of wind, cloud and other weather features which occur across their section of the ski area." (my emphasis) 30 As well, para [16] of the agreed statement of facts acknowledged the ability of the wind to change. Wind direction and speed can affect the safe operation of the Double Chair lift. 31 On 16 September 1999, Mr Lee Paterson, the Mount Perisher Ski Area Supervisor employed by the defendant, was responsible, amongst other things, for assessing weather conditions to decide whether or not to operate the Double Chair lift that day. This he did at approximately 6.10 am on the day in question in the manner described in paragraphs 12, 13, 14 and 15 of the agreed statement of facts contained herein. All told, that procedure took him some 20 minutes - which means that Mr Paterson had completed his assessment and made the decision to operate the Double Chair lift on 16 September by approximately 6.30 am that day. 32 On the evidence before me, no further weather assessment or wind monitoring was undertaken when chairs 36 and 37, with their two passengers each, departed the bottom station of the Double Chair lift sometime after 8.15 am and before 8.25 am - nearly two hours after Mr Paterson completed his weather assessment between 6.10 to 6.30 am that same morning. Given the acknowledged ability of the weather, including wind, to change and vary considerably at short notice, that gap of nearly two hours could, it seems to me, clearly see a change in prevailing weather conditions such as to adversely affect the safe operation of the Double Chair lift. 33 The foreseeability of risk here is that, knowing that, a failure to constantly monitor weather conditions, particularly wind, concurrent with the operation of the Double Chair lift, will increase the risk of problems occurring in the safe operation of the lift, such as occurred between 8.25 am and 8.30 am on 16 September 1999, causing chairs 36 and 37 to fall to the ground in the way that they did. 34 I am of the view that the passage of time of some two hours between the time of Mr Paterson's assessment, his decision to operate the Double Chair lift and the actual operation of the Double Chair lift based on that assessment raised the possibility of adverse weather conditions arising such as to create the circumstances giving rise to the accident involving chairs 36 and 37. 35 That that scenario is a distinct possibility has not gone unnoticed by the defendant, it seems to me. I say that because of the remedial steps undertaken post the accident, particularly by the fitting of wind speed and direction monitors to tower 5 of the Double Chair lift and to tower 15 of the Triple Chair (which runs parallel to the Double Chair). 36 As advised by counsel for the defendant, since their installation, the monitors have caused the closure of the chair lift. On how many occasions was not made clear. On this issue, Mr Turel explains in his statement: "The purpose of the wind monitor is to provide wind velocity and direction data to the Area Manager and lift operators. The wind monitor will automatically shut down the Double Chair in the event that the wind reaches a pre-determined velocity and/or direction. In certain conditions … the wind monitor will also activate an alarm for the top station lift operator who can then implement a manual shut down of the Double Chair if required, and notify the Area Manager. Once the automatic shut down has been activated, the Double Chair will decelerate to a stop. …… Once the automatic shut down has been activated on the Double Chair it will generally come to a complete stop within 3.4 metres." 37 In addition to the wind monitors, the defendant also installed counter pressure sheave assemblies to the up hill and down hill sides of towers 4, 7, 8, 9 and 10 of the Double Chair lift. As Mr Turel explained: "The purpose for a counter pressure sheave is to apply down pressure via the overhead sheave onto the haul rope to give improved control of the rope. This will prevent the rope from being lifted off or rolling out of the sheaves." and further, in cross examination: "It (the counter pressure sheave) just puts more tension on it (the haul rope) one way or the other. It actually keeps steady tension on the rope, on the counter weight while moving up and down, depending on the load of the lift." 38 As I understood that evidence, this particular remedial step has the effect of minimising the possibility of the haul rope derailing from the haul rope sheaves under the effect of wind or excessive movement of the chairs. 39 As well as those matters detailed above, steps have now been taken to ensure regular weather reports are faxed through automatically to each Area Office. As well, extensive work has been undertaken throughout the defendant's resort to review and upgrade procedure and training manuals for all staff involved particularly in the operations of ski lifts. 40 The remedial steps taken by the defendant are to be properly acknowledged as a proper and prompt response to the accident that occurred on 16 September 1999. That they were steps readily available to be done by the defendant have to be viewed, I believe, against the known history and operation of this lift by the defendants. This evidence was given by Mr Turel and was not challenged by the prosecution. As Mr Turel explained, the Double Chair lift: · Was engineered in 1960 by Mueller AG of Switzerland and installed on Mt Perisher during the summer months of 1960/61 by Transfield Sydney. · Carries two passengers by chair and is what is commonly known as "fixed grip" Double Chair lift which means that the chairs do not detach from the haul rope at the load and unload points. · Represented current chair lift design technology and still is a commonly used chair lift throughout Europe and North America. · In the average ski season will carry approximately 361,000 passengers, being 4,350 per day. · The ski season officially runs from the long weekend in June to about mid-October which is on average 17 weeks. · Has safely transported almost 15 million passengers during normal operations. · It only carries passengers during the ski season and does not operate outside the ski season. 41 On any view, that is a commendable safety record for this piece of machinery in an inherently and potentially dangerous operation with a high level of risk. As well, the defendant has in place a rigorous maintenance programme for its ski lifts, including the Double Chair lift. Mr Turel's affidavit detailed the extensive and proper steps taken by the defendant to maintain and upgrade the Double Chair lift on an ongoing basis in accordance with the relevant Australian Standard. Qualified maintenance staff are employed and maintenance logs record all such work. 42 Prior to 1997, the Double Chair lift had been routinely inspected by WorkCover for registration purposes. After that time, all maintenance work has been inspected by independent mechanical and electrical engineers and inspected by independent consultants. Four inspections are carried out annually as follows: (a) A Structural Inspection of the Double Chair is carried out by Snowfield Engineering Pty. Limited in November/December each year. (b) A Safety and Control Systems Inspection of the Double Chair is carried out by Snowfield Engineering Pty Limited in April/May/June each year. (c) An Electrical Inspection of the Double Chair is carried out by Webb Electrical Pty Limited in May/June each year. (d) An Operational Inspection of the Double Chair is carried out by Snowfield Engineering in June/July each year. 43 A Safety and Control Systems Inspection on the Double Chair lift had been undertaken on 3 June 1999, and a report prepared by Snowfield Engineering Pty Limited. That report identified items requiring attention before commencement of operations and those to be done as soon as possible. As that report disclosed (annexure B to Mr Turel's affidavit) there were two items identified - telephones to be fixed and minor anti-corrosion painting. 44 In coming to an overall view as to the objective seriousness of the offence before me, I also have regard to the practical consequences that flowed from this offence, noting that while the gravity of the injuries suffered do not of themselves dictate the magnitude of the penalty, they do demonstrate the seriousness of the detriment to safety occasioned by the offence: Tyler v Sydney Electricity (1993) 47 IR 1 at 5. There is no doubt in the matter before me that the potential consequences of the risk of injury were obvious. The persons in chair lifts 36 and 37, while injured, are also lucky to be alive. 45 The decision of this Commission in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsey) (2000) 49 NSWLR 610; 99 IR 29 paras [71] to [80] is authoritative on the approach to be taken in assessing the role of deterrence in fixing the penalty to be imposed. That decision adopted with approval the approach taken by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 in the following terms: "The fundamental duty of the Court in this important area of public concern …(is) to ensure a level of penalty for a breach as would compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety in the workplace …" 46 As the decision in Capral further expands, 'both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.' 47 On the question of specific deterrence, Capral is instructive, particularly at para [77]. Within para [77], there are clear principles relevant to the defendant that requires specific deterrence to be a component of the penalty determined in this matter. For example, not only is the defendant currently continuing to operate the Double Chair lift but it will continue to operate the Double Chair lift and other ski lifts as an essential component of its activities for many years to come. For that reason, the defendant is required to maintain constant vigilance and take all practical precautions to ensure safety in the workplace. As well, the defendant conducts a large enterprise that involves a large number of employees and, by the very nature of its operations, involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Limited (2000) NSWIRComm 53 at 46. Determination of penalty 48 That the offence is a serious one is conclusive on any view and counsel for the defendant properly acknowledged that. 49 There are matters that I must properly take into account in coming to a final view as to the appropriate penalty in this matter. The first is the appropriate discount for the defendant acknowledging its early plea of guilty applying the guideline judgment in R v Thompson; R v Houlton (2000) 49 NSWLR 383. This was acknowledged by counsel for the prosecution in written submissions to the Court in the following terms: 1. The plea of guilty was entered prior to the matter being set down for hearing, and after discussions had taken place between the parties and the filing of the amended application for order. 2. The utilitarian value of the plea would be of the higher end of the scale of discounts. 50 Not surprisingly, counsel for the defendant embraced that submission and it is one with which I concur. I assess the appropriate discount for the early plea in this matter to be 25 percent. 51 There are also other factors which the defendant is entitled to have taken into account as proper subjective features in mitigation of penalty. Those matters are the defendant's record as a good industrial citizen, the defendant's clear cooperation and prompt action in relation to its dealings with WorkCover concerning this matter and the remedial work undertaken by them to ensure the future safe operation of the Double Chair lift and to reduce the possibility of this type of incident occurring in the future. 52 The defendant has no prior convictions. It has been operating in a business that could only be described as high risk since 1962. I have already commented that, in relation to the particular operation of the Double Chair lift, the defendant has a laudable record. When taken together with the other subjective features I have identified, the defendant is entitled to some further discount. In all the circumstances, I determine that a further discount of 10 percent is appropriate. 53 Taking all of the above matters into account, I determine the penalty in the first instance of this matter of $140,000. In applying the initial discount of 25 percent together with the further discount of 10 percent I determine a final penalty in this matter of $91,000. 54 A moiety of the penalty is sought by the prosecution which I shall provide for. ORDERS 55 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 $91,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs as agreed. If agreement cannot be reached leave is granted to either party to approach the Court for final orders as to costs. 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.