Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Brett Martin v True Perspective Pty Limited [2002] NSWIRComm 197 Prosecutor: PARTIES : Inspector Brett Martin Defendant: True Perspective Pty Limited FILE NUMBER: IRC5706,5707 of 2001 CORAM: Kavanagh J CATCHWORDS : Prosecution under s15(1) and s16(1) of the Occupational Health and Safety Act 1983 - plea of guilty - work method endangers employee - persons assisting in performance of unsafe work method also at risk - s10 of Crimes (Sentencing Procedures) Act 1999 rejected - mitigation of penalty - fines imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 s15(1) s16(1) Crimes (Sentencing Procedures) Act 1999 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Haynes v James Glass & Aluminium Pty Ltd (unreported, CT772-775 of 1991, 20 May 1994) Riley v Australian Grader Hire Pty Limited 2001 103 IR 143 Genner Constructions Pty Limited v WorkCover Authority (Inspector Guillarte) (2001) 110 IR 5 Inspector Louise May v McDonald's Australia Limited [2002] NSWIRComm 179 Tyler v Sydney Electricity (1993) 47 IR 1 Ferguson v Nelmac (1999) 92 IR 188 CASES CITED : Insp Callaghan v Saunders Constructions Pty Ltd (unreported decision of Maidment J, No. CT1062 of 1993, 26 November 1993) Capral Aluminium Pty Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsey) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 R v Thomson, R v Houlton (1999-2000) 49 NSWLR 383 R v Sharma [2002] NSWCCA 142 Pearce v The Queen (1998) 194 CLR 610 Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan [2001] NSWIRComm 106 Inspector John Patton v Brambles [2002] NSWIRComm 178 Postiglione v The Queen (1997) 189 CLR 295 HEARING DATES: 07/11/2002 DATE OF JUDGMENT: 08/16/2002 Prosecutor: Mr D. Chin of counsel Solicitors: Phillips Fox LEGAL REPRESENTATIVES: Defendant: Mr M.J. Heath of counsel Solicitors: Bradfield Anderson JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Friday 16 August 2002 IRC5706 of 2001 INSPECTOR MARTIN v TRUE PERSPECTIVE PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC5707 of 2001 INSPECTOR MARTIN v TRUE PERSPECTIVE PTY LTD Prosecution under s16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm197 1 These prosecutions are brought by the WorkCover Authority of New South Wales through Inspector Martin under the provisions of s 15(1) and s 16(1) of the Occupational Health and Safety Act, 1983. 2 Under the provisions of s 15(1), it is alleged the defendant corporation: . . . True Perspective Pty Limited (ACN 074 305 052), an employer, breached section 15(1) of the Occupational Health & Safety Act 1983 on 23 September 1999 at Henty Machinery Field Day Site, Henty in the State of New South Wales ("the site"), in that it failed to ensure the health, safety and welfare at work of its employees, in particular, Justin Wise. 3 Under the provisions of s16(1), it is alleged the defendant corporation: . . . True Perspective Pty Limited (CAN 074 305 052), an employer, breached Section 16(1) of the Occupational Health & Safety Act 1983 on 23 September 1999 at Henty Machinery Field Day Site, Henty in the State of New South Wales ("the site"), in that it failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work. As a result of the said failure Ahmed Mahmoud and Jason Davies were exposed to the risk of serious injury. 4 The following particulars as to the alleged breaches under s15(1) were provided. The defendant failed: (a) to ensure a system of work for the handling and dismantling of a motor vehicle display ramp. . . that was safe and without risks to health. (b) to ensure that employees assisting in the handling and dismantling of the ramp were adequately trained and instructed in carrying out these tasks. (c) to ensure that employees carrying out the handling and dismantling of the ramp were adequately trained, instructed and supervised in carrying out these tasks. 5 The following particulars as to the alleged breaches under s16(1) were provided. The defendant failed: (d) to ensure a system of work for the handling and dismantling of a motor vehicle display ramp. . . that was safe and without risks to health. (e) to ensure that non-employees assisting in the handling and dismantling of the ramp were adequately trained and instructed in carrying out these tasks. (f) to ensure that the non-employees carrying out the handling and dismantling of the ramp were adequately supervised in carrying out these tasks. 6 A plea of guilty was entered by the defendant to both charges. 7 A comprehensive agreed statement of facts was tendered in its terms similarly related to both charges which relevantly states: 3. On 23 September 1999 the Defendant: (a) carried on an event production business; (b) was carrying out the dismantling of a car display ramp. . . at the Henty Machinery Field site, Henty in the State of New South Wales ( site ) pursuant to the contract with Toyota Motor Corporation Limited; (c) employed Justin Wise as a general hand. 4. On 23 September 1999, Justin Wise was assisting Anton Cannon (employed by the Defendant as supervisor) in handling the ramp prior to dismantling it. The ramp was being handled so that it could be 'rolled over' prior to being dismantled for transport. As they handled the ramp they were assisted by Ahmed Mahmoud and Jason Davies (employees of Toyota Motor Corporation Australia). Cannon had anchored a ratchet strap to a far point on the ramp and had attached the other end to a towing vehicle, a Toyota Land Cruiser. 5. At Cannon's request, Mahmoud and Davies were assisting in the 'roll over' operation being undertaken. The ramp had to be 'rolled over' prior to dismantling due to its weight. As Cannon took up the slack driving the Land Cruiser, Wise assisted Davies and Mahmoud in manually lifting the display ramp as part of the 'roll over' operation. 6. As the ramp started to tip all persons except Wise let go. As a result, Wise was still hanging on to the ramp as it was flipped, and was flung into the middle of the two tracks of the ramp as it rolled onto the ground. 7. The ramp landed on Wise causing him injury. As a result of the accident, Wise suffered a fractured pelvis and contusions to his chest and ankle. 8. True Perspective Pty Limited had employed Wise for two weeks prior to the accident. Wise states that he had no training in the assembly or dismantling of the ramp. Cannon stated that as Wise was new, he had to give verbal on the spot training on the day of the accident. Davies and Mahmoud state that they did not receive any training in the handling of the ramp. 9. The Defendant did not have a documented system of work for the dismantling of the ramp prior to the accident involving Wise. 10. Although Cannon stated that he had personally erected/dismantled the ramp numerous times, Wise had no previous experience in this process. An Improvement Notice No. 205488 was issued to the Defendant to carry out a risk assessment of the 'roll over' operation of the ramp. 8 The charge under s15(1) relates to a failure to ensure a safe system of work for an employee, Mr Justin Wise. The charges pleaded under s16(1) relate to a failure to ensure a safe system of work for persons not employed by the defendant, namely, Mr Ahmed Mahmoud and Mr Jason Davies. 9 Mr D. Chin, of counsel, appeared for the Prosecution and Mr M. J. Heath, of counsel, appeared for the defendant. The prosecutor tendered the agreed statement of facts, photos of the ramp and the industrial record of the company. Mr Heath called Mr Ian John Couch, Co-Director of the company to give evidence. A brochure related to the design of the said ramp was also tendered. At the time of the alleged breaches Mr Couch was in partnership in the company which operated as an Event Co-ordinator. 10 The Court must assess the nature and quality of these offences, that is, the gravity of the offences viewed objectively (see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 at 474 and Haynes v James Glass & Aluminium Pty Ltd (unreported, CT772-775 of 1991, 20 May 1994). 11 An event was being co-ordinated by the defendant corporation called the Henty Machinery Field Day. A tilt ramp owned by the defendant had been used to display farm machinery on site. Mr Justin Wise had been employed by the defendant company for a very short time on a casual basis as a general hand when, at the close of the Field Day, he was assisting in the dismantling of the ramp used to display vehicles. Two workers, employees of the Toyota Motor Corporation Limited, Australia, were assisting. 12 The dismantling was being performed following a procedure devised by Mr Couch on behalf of the defendant company. The procedure involved the attachment of a ratchet strap to the far point of the ramp with its other end attached to a Toyota Land Cruiser for towing. The Toyota Land Cruiser was to edge forward and as the ramp was pulled forward towards it from its height, the workers were to use the movement to roll over the ramp on to its side. Mr Couch described it thus: . . . to use the Land Cruiser to provide a fulcrum effect to make the unit turn over. 13 As this procedure began on 23 September 1999, the ramp began to tip. The other workers quickly let go of it, but Mr Wise held on and was flung into the middle of the two tracks of the ramp. He was pinned underneath and suffered a fractured pelvis and contusions to his chest and ankle. 14 The system of work devised by the defendant corporation was unsafe for the handling and dismantling of the motor vehicle display tilt ramp. Mr Couch had searched for this unit. Given his needs, he had discussed, at length, with the manufacturer the mobility of the ramp. He had the manufacturers come from Brisbane to assist him as to how to dismantle the ramp and how to handle the erection of the ramp. However, any movement of a display unit which could be extended up to six metres high from the ground and with a width of approximately five metres, made of steel, was always awkward. To involve the use of a Land Cruiser with a ratchet attachment to pull it downwards before requiring three workers to guide it to tip it over, by description alone, reveals a work method that was unsafe. 15 Indicative of the unsafe system of work was Mr Couch's reassessment of it and his then determination to no longer accept the vehicle display unit as moveable. It appears, from the evidence, Mr Couch made an appropriate decision. No longer is the display unit moved. It is now used only as a permanent fixture. In such circumstances, notwithstanding there was an attempt to design a safe system of work, the system of work so designed was unsafe. However, the Commission sitting in Court Session accepts the evidence the display ramp was sold as able to be assembled and disassembled on site. Evidence revealed it had been used over a period of time without incident. Nonetheless, there was a statutory obligation on this employer to provide a safe system of work for the dismantling of the tilt ramp. 16 Mr Wise, the defendant's employee had been inadequately trained and instructed. As to the system of work, Mr Wise had received some oral instructions as to how to conduct the procedure designed for dismantling the ramp, but had not performed the task. There was no written procedure or work method. He had been a casual employee and had only done the display work for a few weeks. He was out "on the road". Mr Mahmoud and Mr Davies, who were assisting, had not been trained or instructed at all. Although supervised by Mr Cannon, the performance of the task by untrained workers provided a risk to safety at this worksite. The obligation to train and instruct employees is a specific obligation and carries with it an obligation the employer be diligent and proactive in training and instructing its workforce. 17 It is the culpability for the offences as charged to which the court's consideration is directed. Those charges relate to the provision of an unsafe system of work and lack of proper training and instruction of workers. It cannot diminish this employer's obligations to plead Mr Wise should have "let go" as did the other workers. His failure to let go did not affect the design of the unsafe system of work. In this circumstance, I cannot see Mr Wise, the employee, was at all negligent (see Riley v Australian Grader Hire Pty Limited 2001 103 IR 143 at 15). Rather, these workers, be they employees or persons at the worksite of the defendant, should have been educated to be aware of all contingencies in the performance of the task. They were not properly trained (see Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57). While there was an attempt to devise a system of work it was not safe for workers to perform this task. 18 It is relevant to note, as to the gravity of the offences, one of the workers suffered some injury (see Inspector Louise May v McDonald's Australia Limited [2002] NSWIRComm 179 [at 45]; Tyler v Sydney Electricity (1993) 47 IR 1 (at 5); Ferguson v Nelmac (1999) 92 IR 188 (at 204)). 19 I find this offence in the middle range. 20 A number of subjective features are taken into account in consideration of penalty. Mr Couch operates an events management firm and has done so for some years. The company has no prior convictions for breach of the Occupational Health and Safety Act 1983. The company enjoys a fine reputation in the area in which it works. 21 Mr Couch had searched Australia before he found this particular display ramp. He asked the manufacturer to assist him in designing a system for dismantling it. He put in place a system of work intended to safely dismantle it. His plea of guilty and his acknowledgement that, on a review, no system could guarantee absolute safety to his workers led him to make a management decision not to provide this display unit as a moveable unit for events. This was a commonsense decision and a proper reassessment in accordance with his obligation to provide safe working. However, as was said by Maidment J in Inspector Callaghan v Saunders Constructions Pty Limited (unreported, Matter No. CT1062 of 1993, 26 November 1993 at 7): Commendable though it is to introduce appropriate occupational health and safety measures after the event it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments irrespective of their own laxities. 22 Although Mr Wise had been employed as a casual, from the time Mr Couch was informed of the incident he ensured Mr Wise's status was changed to that of a permanent employee with the company. Mr Couch immediately arranged air ambulance access to Mr Wise from Wagga if the injuries, on assessment, required his employee to seek specialist medical care. The company co-operated in assisting in Mr Wise's rehabilitation and guided Mr Wise in relation to his workers' compensation rights. The assistance provided by the defendant corporation to its injured employee is to be commended. 23 Further elements of deterrence must be given attention in a consideration as to penalty. As to specific deterrence, the decision of Mr Couch to cease forthwith from accepting the ramp as moveable is to be commended. It is also relevant to consider the element of deterrence in the assessment of penalty to ensure there will be attention directed to safety issues at the workplace and to ensure the punishment is proportionate to the offence (see Capral Aluminium Pty Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsey) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]). I am persuaded Mr Couch has put in place in the company both an awareness of safe working and safe work methods for particular, defined tasks. 24 Mr Heath made an application on behalf of the defendant that this was an appropriate matter to apply s10 of the Crimes (Sentencing Procedures) Act 1999 and to not record a conviction against the defendant. I have examined the nature and quality of this offence and do not believe, in the circumstances, it is an appropriate matter for an order dismissing the charges or discharging the offender. There is an obligation on this employer to ensure safe working and to provide no risk to the health and safety of both its employees and the persons it involved in the dismantling of the ramp. Three men were involved in the performance of this task. The system of work designed by and adopted by this employer was unsafe. Further, each employee performing the task had not been properly trained or instructed. I do not believe the offence is of a trivial nature nor that the circumstances reveal any extenuating circumstances. While I note the defendant's good industrial reputation, I do not believe it is a proper matter for the application of s10 of the Crimes (Sentencing Procedures) Act. Accordingly, I reject the application. 25 In mitigation of penalty, the financial status of the company becomes relevant. The company has a yearly $1.4 million turnover (approx). The responsibilities of the company are through two directors, Mr Couch and a partner who Mr Couch is presently buying out. The company employs approximately nine full-time staff. On occasions, during the organisation of big events, on a contractual basis, there can be up to 40 persons working for the company. In the past, Mr Couch has made a profit of up to $120,000 although following the 11 September 2001 tragedy in New York, there was a dramatic cancellation of "events" and the company last year suffered a loss of $45,000. I find, in the circumstances, this is a company of limited means. 26 As the company has no recorded convictions against it, the maximum penalty for each offence is $550,00. I accept the defendant company co-operated with the WorkCover Authority and in the circumstances an early pleas of guilty was entered in relation to both offences. The prosecution supports the defendant's submission in the circumstances these early pleas had a utilitarian value. Accordingly, I allow a discount of twenty-five per cent for the plea of guilty entered on each charge (see R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; and R v Sharma [2002] NSWCCA 142). 27 Consideration as to penalty requires the application of the principle of totality which principle must be applied after the criminality of each offence is determined separately before the Court gives consideration to the defendant's overall criminality (see Pearce v The Queen (1998) 194 CLR 610). 28 In circumstances where there are elements which are common to each offence, it must be ensured the aggregate penalty is just and appropriate (see Pearce per McHugh, Hayne and Callinan JJ [at 40] and Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan [2001] NSWIRComm 106 [at 137]). 29 I am of the view these charges arise from the same incident and effect three workers, one an employee, the others working at the employer's place of work on the employer's undertaking, all within a system of work designed by the employer, contain common elements in the nature of the breaches as pleaded of the Occupational Health and Safety Act, 1983 (see Inspector John Patton v Brambles Australia Limited t/as Gardner Perrott [2002] NSWIRComm 178, 5 August 2002). 30 The common elements to the breaches as pleaded under s15(1) and s16(1) of the Act, relate to the unsafe system of work adopted for the task and the failure to train, instruct and supervise all of the workers at this site, be they employees or persons not in the employ of the defendant. In the circumstance, the only element not common to the nature of the breaches, as pleaded, is that one breach relates to a failure of an employer's obligation for safe working to an employee (s15(1)) and the other relates to the same employer's obligation to provide safe working of its industrial work at its place of work (s16(1)). The task performed by each worker was similar. 31 I take into account the gravity of each offence and the relevant subjective features placed before the Court and the discount allowed for the utilitarian value of each plea. 32 I find the defendant guilty in matter No. 5706 of 2001 for a breach of s15(1) of the Occupational Health and Safety Act 1983. The defendant is fined in the sum of $30,000. 33 I find the defendant guilty in matter No. 5707 of 2001 for a breach of s16(1) of the Occupational Health and Safety Act 1983. I fine the defendant in the sum of $20,000. 34 On the application of the principle of totality, I believe it is proper, given the common elements of this offence, to aggregate the said penalty and to draw downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences (see Postiglione v The Queen (1997) 189 CLR 295). 35 The defendant is fined in the sum of $35,000 with a moiety to the WorkCover Authority. 36 There has been agreement between the parties as to the quantification of costs in the sum of $8,500. I order the defendant to pay the prosecution's costs as agreed at $8,500. 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.