Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Robert Wilkie v Noel Thomas Nicholson & Anor [2005] NSWIRComm 146 Prosecutor: Inspector Robert Wilkie PARTIES: Defendants: Noel Thomas Nicholson John Dean Thomas Nicholson FILE NUMBER(S): IRC4037 & 4038 of 2004 CORAM: Kavanagh J CATCHWORDS: Occupational Health and Safety - Two prosecutions under s8(1) of the Occupational Health and Safety Act 2000 (NSW) - Father and son partnership in small business - Plea of guilty from each defendant - no formalised system of work nor risk assessment of tasks nor training or instruction - Experienced and qualified employees no answer to an employer's failure to comply with statutory obligations - Fine - moiety to prosecutor - costs LEGISLATION CITED: Occupational Health and Safety Act 2000 Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v James Glass and Aluminium Pty Limited (unreported decision of Fisher CJ, CT91/772-775, 20 May 1994) CASES CITED: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Tyler v Sydney Electricity (1993) 47 IR 1 HEARING DATES: 04/22/2005 DATE OF JUDGMENT: 05/19/2005 Prosecutor: Mr R. Reitano of counsel Solicitors: Mr N. A. Correy Moray & Agnew LEGAL REPRESENTATIVES: Defendant: Mr P.J. Cook of counsel Solicitors: Mr Christopher Spink Frazi Spink JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Kavanagh J Thursday 19 May 2005 Matter No IRC 4037 of 2004 INSPECTOR ROBERT WILKIE v NOEL THOMAS NICHOLSON Prosecution under s8(1) of the Occupational Health and Safety Act 2000 Matter No IRC4038 of 2004 INSPECTOR ROBERT WILKIE v JOHN DEAN THOMAS NICHOLSON Prosecution under s8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 146 1 These prosecutions are brought by Inspector Robert Wilkie of the WorkCover Authority of NSW against Noel Thomas Nicholson and John Dean Thomas Nicholson, father and son, who were partners in a business known as Nicholson Farm Machinery. Both prosecutions are issued under s8(1) of the Occupational Health and Safety Act 2000 (the OHS Act). 2 Section 8(1) of the OHS Act reads as follows: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 3 It is alleged each defendant breached s8(1) of the Occupational Health and Safety Act 2000 in that both defendants: (1) failed to provide and maintain a system of work that was safe and without risk to health; and (2) failed to provide such information, training, instruction and supervision in relation to the work of replacing the cabin mounts on the vehicle such as was necessary to ensure its employee's health and safety at work. The particulars relied upon are similar for each charge: (i) there was no proper risk assessment conducted for the work; (ii) the work was performed when available measures at the premises to control the risk of the cabin collapsing were not adopted. (iii) the conduct of the work on the vehicle with the cabin in a raised position supported only by the tilt stay bracket, without any secondary and external means of supporting the cabin, was unsafe; and (iv) the defendant had no safe work procedure for the conduct of the work involving the release of tension from the torsion bar whilst the cabin was in a raised position, supported only by the tilt stay bracket. 4 An Agreed Statement of Facts was tendered relevant to both charges which reads as follows: 2. The partnership conducted its business which included the repair and maintenance of motor vehicles and farm machinery from its workshop premises at 11 Carrington Street, Crookwell in the state of New South Wales ( premises ). 3. On 15 July 2002 the worker and another employee of the partnership, Alan Collins, commenced work on a Ford Trader truck owned by McCarr's Wool ( vehicle ). The work involved the removal and fitting of new event cab mounts. 4. The vehicle had previously been in for service on 25 June 2002 but the job had to be postponed. 5. The vehicle was a tilt cabin type which required the cabin of the truck being tilted forward to enable access to the machinery beneath it. 6. The job was allocated to Alan Collins and the worker assisted him in the job. 7. Alan Collins at all relevant times was an experienced motor mechanic who held trade qualifications for about 30 years and who was experienced in working on trucks with tilt cabins. 8. The worker at all relevant times was an experienced motor mechanic who held trade qualifications for about 24 years. The worker was the leading hand mechanic for the partnership. 9. The job required that the cabin of the truck be tilted forward. 10. At all material times the raising of the cabin to the forward position was assisted by a balance spring device known as a torsion bar. 11. Whilst the cabin was in the raised position this torsion bar provided pressure to support it in such a position but there was an additional locking device known as a tilt stay. This tilt stay locked the cabin in the raised position. 12. In conducting the work of replacing the rubber cabin mounts it was necessary to move the bolts on the torsion bar mounts and on one of the flanges holding the torsion bar in place, in order to release the pressure on the torsion bar. Once the pressure was released from the torsion bar the tilt stay bracket took the full weight of the cabin to support it in the raised position. 13. At all material times on and prior to 15 July 2002 there was no specific instruction provided to the worker in relation to the requirement of independent support for the cabin of the truck in carrying out the task of replacement of the cabin mounts. 14. There were devices available at the premises which could have been used to independently support the cabin of the truck had the worker and Alan Collins chosen to use them. These devices included a wooden support bar, a tackle and chain and gantry crane. The defendant left it to the discretion of Alan Collins and the worker how they were to design the job. 15. Sometime around or shortly prior to 9.30am on 15 July 2002 the worker was under the front left hand side of the cabin, which was in its raised position. The worker was grinding a bracket or had finished grinding a bracket. Whilst the worker was in this position the tilt stay mechanism was released and the cabin was brought down onto the worker's body. The worker suffered an injury to his neck and has resulting permanent quadriplegia from his injury. 16. At all material times on and prior to the accident, having regard to the experience of the worker and Alan Collins, the defendant often allowed both men to design how they would carry out the automotive repair work for the partnership. 17. At all material times on and prior to 15 July 2003 the partnership had no documented procedure for the conduct of the work on tilt cabin trucks which required the use of independent or alternative support mechanisms to hold the cabin in a raised position whilst work was being carried out beneath it. 5 Each defendant pleaded guilty to the charge. 6 Mr R. Reitano, of counsel, appeared for the prosecution. Mr P.J. Cook, of counsel, appeared for the defendants. The prosecutor tendered a number of photographs of the site and a WorkCover Factual Report. Reliance was placed upon the Agreed Statement of Facts. 7 Mr Cook relied upon the affidavit evidence of Mr Noel Thomas Nicholson and Mr John Dean Thomas Nicholson. Documentation of worksafe systems and risk assessments designed for tasks within a mechanical workshop were also tendered. Much character evidence in support of both individual defendants were placed before the court. 8 Nicholson Farm Machinery conducts a business selling and servicing all types of farm machinery and farm vehicles. It operates in Crookwell, a beautiful and historic country town in New South Wales, surrounded by rural farming and grazing properties. Over the years, the Nicholson farm machinery partnership has provided employment in the district to over 40 employees and, throughout those years, supported through to qualification 14 apprentices. There are six persons now employed in the business in either the mechanical or clerical fields. The partnership has a number of long term employees which, in itself, is a positive commentary as to the quality of the defendants as employers. The two senior mechanics in the business were involved in the incident. Mr Kitchen and Mr Collins were both long term employees - Mr Kitchen was employed by the partnership for 21 years and Mr Collins for 19 years. 9 It was Mr Collins who was allocated the job in question by the younger defendant, the son, Mr John Nicholson. Mr Kitchen was called upon to assist Mr Collins. They were changing the mounts on a truck's cabin. The cabin of the truck had to be tipped forward to allow access to the mounts. 10 When the cabin of such a vehicle is positioned forward it is held in position by a spring device known as a torsion bar and there is also an additional locking device which is attached called a tilt stay. It was rubber cabin mounts on the torsion bar which were being replaced. The bolts on the torsion bar mounts were therefore removed. Once this occurred the pressure was released from the torsion bar and the tilt stay bracket took the full weight of the cabin. 11 Mr Kitchen was under the front left hand side of the raised cabin. While he was grinding a bracket, the torsion bar was relaxed and the weight of the tilted cabin was held by the tilt stay mechanism. This mechanism suddenly released and the cabin came down with great weight and force and Mr Kitchen suffered an injury leading to permanent quadriplegia. 12 There was no proper risk assessment conducted for the work. Extra equipment to hold the cabin at the forward tilt was available on site. There was no work method adopted which outlined the use of such equipment. There had been no risk assessment of any task at the workshop. There had been no appropriate training or supervision for the performance of the task of replacing the cabin mounts. 13 In the assessment of the gravity of the offence, all that could be said by the defendants in defence of the charges was that the mechanics working on the truck held full trade qualifications and had up to 30 years experience between them in working on the type of trucks with tilt cabins. Mr Kitchen, the injured employee, was a leading hand mechanic and had been qualified for some 24 years. Mr Collins had been fully qualified for some 30 years. 14 However, there was complete failure by the defendants to provide let alone maintain a safe system of work. It particularly failed to carry out any risk assessment of the task; it failed to provide any extra support to the cabin on tilt; it generally failed to devise safe work methods and there was the consequent failure to properly inform, train, instruct and supervise. 15 The obligation under the Occupational Health and Safety Act is to ensure safe working for all employees. The Act covers employers who run small family businesses. Each employer, especially those running a small business, has an obligation to educate and inform themselves of their statutory and regulatory requirements and responsibilities. The incident manifests the need for keeping abreast with such statutory standards. This employer failed to redesign his workshop activities taking into account the refinement to workshop practices which would reflect the obligation under Occupational Health and Safety laws to provide safe working. There must be rigorous adherence to the necessary risk assessment of tasks and the design of safe work methods. On site was a wooden support bar, a tackle and chain and a gantry crane. Had there been a designed work method and training of the employees, the equipment needed to provide safe working was available. This most serious risk could have been avoided. With no risk assessment, no work method nor training even an experienced employee was at risk of injury in performing this work. 16 It was held by Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability. The injury of quadriplegia reflects as a manifestation of the risk this breach of the Occupational Health and Safety Act exposed. 17 I find this offence had an element of foreseeability to it. It was obvious that if the tilted cabin of the truck was not fully supported, the consequences would be a risk of serious injury to any employee working under it. The risk of injury could have be avoided. 18 In all of the circumstances, I find this a serious offence. 19 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of consideration of breaches under the Act where Hungerford J held: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that 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. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive. These principles were cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 at [74] where it was said: . . . the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 20 The defendants, as to specific deterrence, now have in place a risk assessment of each task on the workshop floor. The full use of all equipment on site has been assessed and is recorded. It is evident Mr Kitchen was not properly trained. All, even highly qualified and experienced, employees must be instructed on the modules for safe working. Notwithstanding the post-incident endeavours, the penalty applied in this matter must reflect both specific and general deterrence. 21 The partnership still operates. I accept the defendants now have safe working procedures in place. The work methods are now properly communicated to employees. However, safe working standards should have been in place before the incident. The obligation of the employer was not ex post facto (as per Maidment J in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd, unreported decision, CT93/1062, 26 November 1993 at 7). 22 In consideration of penalty, a number of subjective features to the offence have been placed before the Commission in Court Session. In Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 the Full Bench said (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence. The Full Bench cited (at 474) with approval, the passage in the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. 23 Mr Noel Thomas Nicholson, the father and senior partner is now aged 78 years. He commenced working in the motor repair industry in 1942 and continues to this day. He first established a partnership with his wife in 1964 in a workshop established in 1965 which has operated on the same site ever since. Mr John Dean Thomas Nicholson, the son, became an apprentice mechanic under his father in 1973. Mr Nicholson senior's wife passed away in 1996 and then, John, the son assumed a 20 percent partnership in the business. John has general control of the day-to-day operations on the workshop floor including the allocation of tasks to employees. 24 As to the expression of concern and regret, I accept the breach has affected both father, son and all their staff. I accept the evidence staff were counselled after this tragic incident and Mr Nicholson junior has attended several occupational health and safety seminars relevant to his employment in a mechanical workshop. I accept professional advice was sought to design the programme of risk assessment and the design of work methods for all tasks within the mechanical workshop. I accept, having examined the risk assessment and work methods and accepting the description of the training programme, there has now been formalised within this workplace a proper work and safety culture. I further accept positive care and concern was offered to the injured employee and his family. 25 Some attack was made on the work methods placed before the Court suggesting words such as "use appropriate equipment" would provide no guidance to inexperienced employees. However, an examination of the work method document showed, once a particular task was identified, there was clarity and particularity as to the equipment to be used in the performance of each task. In all, I am satisfied this most serious incident has been the trigger for the design of a rigorous safe work programme. 26 I accept Mr Nicholson senior and his son are highly regarded members of their community. The individual references provided for each demonstrate each have individual interests but also have much in common. They contribute significantly to the employment and social life of the town of Crookwell and the surrounding communities 27 The industrial record of the partnership is also relevant. The business has operated for many years with no prior convictions against either of the individuals. The breach attracts the provisions of a utilitarian value to the plea (Cameron v The Queen [2002] HCA 6 which affects the guideline judgment of R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; and 2000 115 A Crim R 104) as there was an early plea of guilty entered. 28 The defendants have operated in a high risk area of industry since 1964. The partnership presents with a good corporate and industrial history. The business provides necessary employment in a country district. The individuals are upstanding community members. However, their workshop did not reflect a commitment to an awareness of occupational health and safety standards. 29 I take into account the subjective features placed before the court including the now genuine commitment to the concepts of occupational health and safety and accept the evidence this commitment is reflected in safe working procedures. 30 The maximum penalty for each charge is $55,000. No financial records have been placed before the court. I therefore give no deduction in penalty for any impecuniosity. 31 I find both parties to the partnership equally responsible. The father has the majority share in the business while the son has significant control of day-to-day work. There was no subjective differentiation argued as to either their financial state or the reputation of each defendant. They are both therefore financially secure and of good character. 32 In matter No IRC4037 of 2004, I find the defendant guilty. The defendant is fined the sum of $27,800 with a moiety to the prosecutor. 33 In matter No. IRC4038 of 2004, I find the defendant guilty. The defendant is fined in the sum of $27, 800 with a moiety to the prosecutor. 34 The defendants are to pay the costs of the prosecutor. There has been no agreement between the parties as to the quantification of those costs. I will hear the parties on this issue in the event no agreement can be reached. 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.