Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Sharpin) v Brambles Australia Limited [2004] NSWIRComm 291 PROSECUTOR: WorkCover Authority of New South Wales PARTIES : (Inspector Sharpin) DEFENDANT: Brambles Australia Limited FILE NUMBER: 5433 of 2003 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - objective seriousness of the offence - obvious foreseeability of risk to safety - general and specific deterrence - plea entered at the earliest opportunity - prior convictions of the defendant - additional subjective features - defendant convicted - penalty imposed - order as to costs. LEGISLATION CITED : Occupational Health and Safety Act 2000 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 CASES CITED : WorkCover Authority of New South Wales v Rail Infrastructure Corporation (No. 2) (2002) NSWIRComm 217 Veen v The Queen (No. 2) 164 CLR 465 R v Thompson, R v Houlton (2000) 49 NSWLR 383 HEARING DATES: 09/23/2004 DATE OF JUDGMENT: 09/23/2004 PROSECUTION: Mr Reitano of counsel SOLICITORS: Carroll and O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr B Cross of counsel SOLICITORS: Allens Arthur Robinson JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 23/9/2004 IRC Matter No. 5433/2003 WorkCover Authority of New South Wales (Inspector Sharpin) v Brambles Australia Limited Prosecution arising under s8(1) of the Occupational Health and Safety Act 2000 Judgment NSWIRComm 291 1 On 11 October 2001 the defendant was engaged in demolishing a structure known as Number 5 Ore Bridge. As depicted in photographs before me, the Ore Bridge was part of an ore loader that had a bridge-like structure sitting atop a large steel A frame. It weighed approximately 1200 tonnes. The ore loader had been part of the plant owned by BHPBilliton at its site at Port Waratah in Newcastle. Amongst other structures, the defendant had been engaged by BHP to demolish the Number 5 Ore Bridge. 2 In the closing stages of the demolition process, the Ore Bridge unexpectedly and prematurely collapsed. The defendant's employees in the immediate vicinity were forced to flee the collapsing bridge. One of them, Mr Paul Newton, was in the immediate confines of the bridge fall. The bridge fell on Mr Newton but, fortuitously, it stopped some 750 millimetres off the ground, with Mr Newton underneath. Mr Newton was able to slide out from under the collapsed bridge physically uninjured, but subsequently had ten days off work due to a diagnosis of post traumatic stress disorder. 3 Following an investigation of the accident, the defendant was charged with an offence arising under s8(1) of the Occupational Health and Safety Act 2000. The prosecution was laid by Inspector Sharpin on behalf of the WorkCover Authority of New South Wales. 4 The defendant entered a plea of guilty to the offences as charged on 18 February 2004 before Boland J. The offence as expressed says that on 11 October 2001 the defendant: Did fail, to ensure the health, safety and welfare at work of all employees of the Defendant, in particular, Paul Andrew Newton. The particulars of the charge are as follows: [1] At all material times, the Defendant undertook the demolition of the BHP Newcastle Steelworks site at Port Waratah in the State of New South Wales ('the premises'). [2] At all material times, the Defendant employed a number of workers at the premises including Paul Andrew Newton ('Newton'). [3] On 11 October 2001, during the course of demolishing the structure known as No. 5 Ore Bridge ('the Bridge'), the Bridge unexpectedly collapsed, narrowly avoiding causing physical injury to employees of the Defendant including Newton. [4] On 11 October 2001 at the said premises, the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all employees of the Defendant, in particular, Newton, by: (a) failing to provide and maintain safe systems of work that ensured employees were not exposed to the risk of the premature or unexpected collapse of the Bridge while they were working in or about its environs preparing it for its planned collapse, in that: (i) the Defendant failed to ensure that the safety restraints implemented by it to prevent the premature and unexpected collapse of the Bridge operated properly. [5] As a result of the said failures, Newton was placed at risk of injury. 5 In the proceedings before me, the prosecution has filed an agreed statement of facts which relevantly discloses: [1] At all material times the Defendant was an employer and undertook the demolition of the BHP Newcastle Steelworks site at Port Waratah in the State of New South Wales ('the premises'). [2] At all material times, the Defendant employed a number of workers at the premises including Paul Andrew Newton ('Newton'). [3] At all material times, the Defendant was demolishing a structure known as No. 5 Ore Bridge ('the Bridge') at the premises. [4] Prior to 11 October 2001, the Defendant prepared a written methodology for the demolition of the Bridge and prepared a Job Safety Analysis, both of which are hereto attached and marked Annexure 'A' ('the Procedure'). [5] The aim of the Procedure was to selectively weaken parts of the Bridge so as to induce its collapse. [6] In particular, the Procedure provided that cuts would be made using an oxy-acetylene torch into the rear portal A-frame of the Bridge in designated positions ('the cutting process'), such that once the cuts were all made, the Bridge structure would be weakened, in particular, the portal legs supporting the A-frame would move apart, causing the Bridge to collapse. [7] In order to prevent the premature or unexpected collapse of the Bridge during the cutting process, the Procedure provided for two (2) pre-fabricated chocks ('the chocks') consisting of approximately four (4) – five (5) metre lengths of heavy weight universal column sections to be fitted on the outside (east and west) of the base of the portal legs at the bogie wheels. The inboard end of the chocks were cut to fit the profile of the bogie wheels and the outboard ends of the chocks were straight cut to fit against a welded metal stopping block. A flexible steel wire rope was attached to the outboard ends of both chocks and connected to an excavator ('the excavators') located a distance from the demolition area. [8] Once the Bridge had been weakened by the cutting process, and all persons had left the demolition area, the excavators were to be used to remove the chocks thereby inducing the collapse of the Bridge. [9] Apart from the chocks, the Procedure provided for a secondary safety measure, being a further flexible steel wire rope ('the safety cable') that was fitted between the portal legs in such a manner that it was reeved between two (2) sheave blocks (located on the inside of the portal legs) and then reeved back to a large earth moving machine a distance away from the Bridge. The aim of the safety cable in the Procedure was to hold the portal legs together during the cutting process and to act as an added precaution against any premature collapse of the Bridge. [10] The Defendant had undertaken a similar demolition to the Procedure when demolishing the No.4 Ore Bridge at the premises in about September 2001. The two sheave blocks used in September 2001 were again used by the Defendant when inducing the collapse of the Bridge. Sometime prior to 11 October 2001, the tie bars that were originally part of the sheave blocks were removed. The removal of the tie bars weakened the sheave blocks. [11] On 11 October 2001, at approximately 12pm, the chock on the outside of the eastern portal leg moved out of position. The Bridge moved approximately three (3) millimetres to the east. The chock was repositioned by the Defendant after making adjustments to the chock. The Defendant then continued with the demolition Procedure. [12] On 11 October 2001, Newton was responsible for cutting the final segment of the Bridge. [13] At approximately 5.00 pm on 11 October 2001, Newton was undertaking the final cut on the Bridge (Step 9 of the Procedure at Annexure 'A'), by making a cut on the base of the A-frame using an oxy-acetylene torch while working from an elevated work platform. [14] At approximately 5.40pm on the said date, Stewart Mols ('Mols'), a supervisor employed by the Defendant observed that the chock on the outside of the western portal leg had move approximately twenty (20) millimetres towards north, leaving approximately five (5) millimetres of chock still engaged with the stopping block. [15] Shortly thereafter, the Bridge collapsed. [16] All persons, including Newton, in the vicinity of the demolition area attempted to flee the collapsing Bridge. These persons included Mols, Grant Moore, Newton, Noel Lysaght, and Kelly Ratu who were all within approximately ten metres of the Bridge when it collapsed. [17] The Bridge fell on top of Newton but stopped approximately 750 mm off the ground while Newton lay underneath. Newton was able to slide out from under the collapsed Bridge and leave the demolition area physically uninjured. [18] Newton subsequently had approximately ten days off work due to a diagnosed post traumatic stress disorder subsequent to the event. [19] As a result of the Defendant investigating the cause of the accident, it was established by the Defendant that the chocks used to support the structure and the safety cable mechanism had failed to support the Bridge during the cutting process. [20] There was no provision in the Procedure for preventing lateral buckling of the chocks. There was no provision in the Procedure to cease the demolition should lateral buckling or movement of the chocks occur prior to the planned collapse of the Bridge. [21] The Defendant made no provision in the Procedure for the secondary restraint, being the safety cable, to take into account the possibility that the chocks would be taken out of commission prior to the completion of the cutting process. The safety cable was not sufficient to prevent the Bridge collapsing in the absence of the chocks. 6 In addition to the statement of facts, the prosecution has also tendered without objection: (i) A number of photographs (numbered 1-12) taken on 12 October 2001. Those photographs depict overall and close-up views of the collapsed ore loader and its surrounds, particularly depicting the final position of Mr Newton under the main body of the Ore Bridge after it collapsed. Those photographs graphically illustrate Mr Newton's miraculous escape from death or serious injury. (ii) A number of still images (numbered 1-10) taken from a video depicting the collapse on 11 October 2001. 7 The photographs and still images have been of considerable assistance to me in understanding the size and location of the Ore Bridge and the overall layout of the worksite. 8 An authorised summary of the defendant's prior convictions was also tendered. That summary discloses that diverse trading entities of the defendant have prior convictions. It is suffice to say at this stage that Brambles Australia Limited is a wholly owned subsidiary of Brambles Industries Limited. The role of Gardner Perrott as a trading division of the defendant was explained by Mr Kerry Wilson, Vice-President Employee Relations of Brambles Industries Limited, in his affidavit filed in these proceedings relevantly as follows: In the period from 1989 to 28 June 2002, Gardner Perrott was a part of the Brambles portfolio of businesses. From the end of the financial year F98/99 Gardner Perrott was included under the Brambles Industrial Services in Australia for consolidation of accounts purposes only. During this period Gardner Perrott continued to trade as Gardner Perrott a division of Brambles Australia Limited. It was this business which was involved in the demolition of the Newcastle Steelworks. 9 Overall, when viewed in totality, the prior convictions of the defendant's diverse trading divisions total 22. Without more, that factor enlivens the provisions of s12 of the Act, such that the maximum penalty for the offence before me is $825,000. The defendant's prior convictions will be referred to further on in this judgment. 10 When one has regard to the agreed facts, the causes of the accident involving the premature collapse of No 5 Ore Bridge were expressed in paras [20] to [22] as follows: [20] As a result of the Defendant investigating the cause of the accident, it was established by the Defendant that the chocks used to support the structure and the safety cable mechanism had failed to support the Bridge during the cutting process. [21] There was no provision in the Procedure for preventing lateral buckling of the chocks. There was no provision in the Procedure to cease the demolition should lateral buckling or movement of the chocks occur prior to the planned collapse of the bridge. [22] The Defendant made no provision in the Procedure for the secondary restraint, being the safety cable, to take into account the possibility that the chocks would be taken out of commission prior to the completion of the cutting process. The safety cable was not sufficient to prevent the Bridge collapsing in the absence of the chocks. 11 There were three affidavits filed on behalf of the defendant without objection although two of the defendants were required for cross examination. The first was from Mr Kerry Wilson, Senior Vice-President Human Resources with Brambles Industries Limited, the parent company of the defendant. 12 As Mr Wilson explains in his affidavit: [2] Brambles is a global support services group which operates in almost 50 countries across six continents and employs approximately 30,000 people. [3] The group's global businesses are CHEP, Cleanaway, Recall and Brambles Industrial Services. [4] Brambles' global headquarters are in Sydney and the group maintains corporate offices in Sydney and London. Headquarters of the global businesses are in Orlando, Florida, USA (CHEP), London (Cleanaway), Atlanta, Georgia, USA (Recall) and Brussels, Belgium (Brambles Industrial Services). [5] Brambles operates in a dual-listed companies structure, with Brambles Industries Limited (BIL) listed on the Australian Stock Exchange and Brambles Industries plc (BIp) listed on the London Stock Exchange. Brambles Australia Limited (BAL), the defendant in these proceedings, is a wholly-owned subsidiary of BIL. [6] BIL and BIp operate as a single economic enterprise, with a single unified board and executive management team. Within Australia the defendant employs some 4,500 employees. 13 Mr Wilson's affidavit also sets out in some detail, with relevant annexures, the overall management structure of Brambles Industries Limited particularly with reference to safety and the policies that the defendant, as part of the Brambles Industries Limited structure, is committed to in pursuing a safety conscious working environment. No issue was taken by the prosecution to any aspect of Mr Wilson's affidavit. I accept that notwithstanding the prior convictions of the defendant, it remains committed to its obligations as an employer to provide a workplace free of risk to safety. It has been submitted on behalf of the prosecution that in the implementation of that commitment, the defendant has not always followed through in discharging that obligation in order to ensure a workplace free of risk to safety. I will elaborate on that issue later in this judgment. 14 The remaining two affidavits on behalf of the defendant were from Mr David Eckersley and Mr Stewart Mols. 15 Mr David Eckersley is currently the General Manager, New South Wales for Sandvic Materials Handling. Mr Eckersley has an honours degree in mechanical engineering from Newcastle University and an MBA. His employment history includes seventeen years at the BHP Steelworks in Newcastle and seven years with ICI/Orica Explosives in senior operations and management roles. 16 Mr Eckersley was employed by the Gardner Perrott division of Brambles in the period from May 2001 until May 2002 as Project Manager of the BHP Steelworks Stage 1 and Stage 2 activities. In that position, he was responsible for overseeing Brambles' demolition activities at the Newcastle steelworks. 17 As well, during his employment with Brambles, Mr Eckersley performed a number of functions including planning for and project managing the demolition of the No. 4 and No. 5 Ore Bridges. 18 As to Mr Mols, he deposes and indeed confirmed in examination in chief that he is a director and shareholder of Able Welding Services Newcastle Pty Limited and has worked in the business of Able Welding Services since approximately 1992. 19 Mr Mols was contracted to Gardner Perrott as a supervisor of demolition operations at the Newcastle Steelworks for approximately three years, from 2001 to the end of 2003. In that position, he reported to Mr Grant Moore, the responsible person on the licence for the demolition work then being undertaken. Mr Moore apparently oversaw his work, as well as the work of another demolition supervisor on site. Mr Mols would liaise with Mr Moore constantly each day. Mr Moore in turn reported to Mr Eckersley, who was the project manager for the entire Steelworks demolition project. Mr Mols would see Mr Eckersley or talk to him about the demolition most days. 20 Mr Mols' expertise and training is mainly in the area of welding, engineering and construction services. He has demolition supervision certificates from TAFE. 21 Although being required for cross examination, no substantive issue was taken by the prosecution to the contents of Mr Eckersley's and Mr Mols' affidavits. Having said that, it should be said that counsel for the prosecution did seek to press Mr Mols as to the contents of para [44] of his affidavit, where he stated: The steps taken by Gardner Perrott in the planning and execution of this task ensured that no one was injured when the structure collapsed prematurely. 22 Let it be said now that I place no reliance on that sentence in my task here today. It is, if anything, at odds with paras [20] to [22] of the agreed facts. It should be noted also that counsel on behalf of the defendant did not seek to press that particular paragraph. 23 A reading of the affidavits of Mr Eckersley and Mr Mols, when taken together, discloses that the demolition procedure involved two bridges: Ore Bridge No. 4 and Ore Bridge No. 5. Mr Eckersley and Mr Mols worked closely together in that project, and Ore Bridge No. 4 was planned to be demolished first. As the Project Manager for the overall job to be undertaken, Mr Eckersley stated: A process of wide consultation including outside demolition companies was undertaken in order to consider the best way to demolish the Ore Bridges. 24 Following that initial consultation, a project team was put together, overseen by Mr Eckersley. Mr Mols was also a member of that team. The first step undertaken was the development of a work method statement. The sequence of events undertaken by the project team in developing that and undertaking the first demolition can be ascertained from Mr Eckersley's detailed affidavit. I refer particularly to paras [17] to [34] of Mr Eckersley's affidavit which states as follows: [17] At a further meeting, our team considered more detailed matters such as where to make the cuts to weaken/strengthen the structure to make it fail in the appropriate manner. This included design of equipment to be used and procedure for demolition. Consideration of matters such as ensuring that there was safe access to the points at which the cuts were to be made and to avoid requiring the employees doing the cutting to work in confined spaces and so on. This was a real team effort, as no one person had all the answers. [18] After we had developed a methodology for the No.4 Ore Bridge, we discussed it with BHPBilliton (Vaughan Martin and Geoff Dunn) and described the methodology and the calculations to them. The purpose of this was to allow BHPBilliton to review our methodology and to get their input. BHPBilliton made some suggestions along the way and signed off on the methodology that we proposed. The biggest two risks identified during review was the boom landing in the harbour and possible contaminants (eg:- oil) getting into the water. Control measures needed to be identified and put in place prior to getting final approval from BHPBilliton. All items containing potential contaminants were identified (eg: oil in transformers) and were planned to be removed as part of pre-work. Control measures identifying how we would control traffic in the river, ways to recover the boom from the river and even the construction of a special lifting device were all detailed. [19] Once the methodology was sorted out with BHPBilliton, it was discussed with Steve McMartin of WorkCover, Newcastle to identify any opportunity for improvement in methodology and safety. I had a view that it would have been desirable when doing the final cut before bringing the structure down to leave a portion of the horizontal member uncut and then removing employees from the area and finalising the cut by means of an explosive cutting charge. This would have allowed for the removal of all employees from the immediate vicinity of the structure when the structure was weakened and unstable. Unfortunately, this was not an acceptable method to WorkCover (a direction from Rick Rech Sydney office), who refused to allow the use of explosives on this project. In my view, the use of explosives would have been safer because it would have allowed for the final cut to be completed without employees effectively working under a suspended load as was the case when they made the final cut of the cross-member. During the course of my discussions with Mr McMartin about the methodology to be adopted for the demolition of No.4 Ore Bridge, I had a conversation with Mr McMartin about this issue, and he said words to the following effect: Mr McMartin: Demolition is a risky game – it's like forestry workers felling trees. The only thing we can do is minimise the people in the area when doing final cuts and ensure the demolition workers have a good clear exit path to escape should the need arise. [20] The demolition plan was submitted to WorkCover (Rick Rech, who was in charge of demolitions for WorkCover New South Wales). We required WorkCover approval before we could proceed with the demolition. WorkCover approved this methodology on certain conditions. Attached and marked 'B' is a copy of the work method statement for the demolition of No.4 Ore Bridge. Attached and marked 'C' is a copy of a letter dated 7 September 2001 which sets out the conditions on which WorkCover approved the methodology proposed for the No.4 Ore Bridge. That comprised the formal side of approval for the demolition of the No.4 Ore Bridge. Demolition of No.4 Ore Bridge [21] We completed the No.4 Ore Bridge demolition successfully with no injuries and no safety incidents to my knowledge. The demolition of No.4 was witnessed by Steve McMartin and Alan Kemp (the head of WorkCover Newcastle at the time) as well as Kevin Maher, the secretary of the Newcastle branch of the AWU. The preparation of the structure for demolition took approximately 20 days. During this period, Mr McMartin from WorkCover attended the site every second or third day and the AWU (through its organiser, Scott Wyatt) was also on site quite regularly. Mr McMartin's visits usually lasted for 2 or 3 hours, and sometimes as long as 4 hours. Mr McMartin would arrive at site by car, and would let us know what he wanted to inspect. He usually brought his camera and took photos of what he was inspecting, and spent his time on site discussing issues with management and with the workers involved in the jobs, and inspecting the areas they were working in and the work they were doing. Mr McMartin would also inspect the activities of others on site, including BHP and Moltoni Adams (another demolition contractor). It was a very open and consultative process in which we discussed with WorkCover what we were doing and WorkCover inspected the work as it occurred. [22] During the preparation phase, we took a number of steps to ensure that the structure was safe. For example, to ensure that the structure fell in the manner desired, we not only weakened it in certain points but also strengthened it at certain other points by welding in extra beams and 'strongbacks' so that those parts of the structure remained rigid. Also, we shackled the boom to the rest of the structure so that it did not break free and fall into the harbour. Lugs were welded onto the boom to ensure that we had convenient points to shackle ropes to in the event that the boom fell into the harbour rather than back over the top of the structure as planned. Before demolishing the structure, we removed all of the transformers and any piece of equipment that was likely to have oil in it. [23] Throughout the process for the demolition of the No.4 and No.5 Ore Bridges, we had detailed work plans and job safety analyses (JSAs) which supervisors and employees went through at the beginning of each shift and which we asked the work crews to sign off each shift. A JSA was developed for each job (eg separate JSAs for each of No.4 Ore Bridge and No.5 Ore Bridge). Attached and marked 'D' is a copy of the JSA developed for the demolition of No.5 Ore Bridge. [24] Gardner Perrott's health and safety officer, Ian Wade, was in charge of the preparation of the JSA, following a detailed program of consultation with the team mentioned in paragraph 7 of this affidavit, and with the workers who would be involved with the project (most of whom were experienced and had some qualifications for demolition work). [25] The JSA for each project was discussed by the team working on that project at a toolbox meeting each morning before work commenced. These meetings were focussed on safety, and would typically cover: (a) the particular activities to be undertaken that day; (b) the key concerns or safety issues relevant to those activities; (c) the steps to take to address those concerns and issues; and (d) the allocation of specific tasks to each worker. This was an interactive process in which each worker was encouraged to raise any concerns or suggestions they had, seek clarification of anything they were unsure of, or make any other contribution they thought might assist in the safe performance of the work. These meetings for the teams on No.4 and No.5 Ore Bridges were normally run by Stuart Mols, the supervisor of those projects. I attended some, but not all, of those meetings. [26] In addition to these daily toolbox meetings, Gardner Perrott held a site-wide safety meeting once a week (from memory, after lunch each Tuesday). Ian Wade ran these meetings, which were an opportunity to raise and discuss any safety issues that was relevant to the work we were doing on site. I attended most, if not all, of these meetings. Typical matters discussed at these meetings include: (a) any safety incidents on site; (b) any learnings from an incident on site; (c) any areas that posed a risk to health and safety (eg an area that should be roped off); (d) housekeeping issues; and (e) forthcoming demolitions or other important events which might impact on health and safety on site. [27] Significant training of Gardner Perrott employees and contractors was undertaken both at the steelworks, and at the nearby TAFE College at Tighe's Hill. Most workers involved in these projects already had significant training and expertise in the work they were performing. However, a training plan was developed for each employee, and these plans included formal and informal training. Some examples of formal training include training for the issuing of tickets for such activities as First Aid, asbestos removal, and fork lift operation. Training for each of these tickets included a practical component, which was undertaken on site, as well as a formal component undertaken at the TAFE College. [28] The demolition of the No.4 Ore Bridge went off without a hitch. Everybody involved including BHPBilliton, the AWU and WorkCover were very happy with the demolition. [29] A steel cable was attached to the legs of the A frame at the rear of the structure and the end of the cable was attached to an excavator. The primary purpose of this cable was to assist in getting the chocks out. The concern was that when the horizontal member of the A frame was cut, all of the load of that part of the structure was bearing on the chocks, and this might make it difficult for the excavator to remove the chocks to allow the structure to fail. The cable enabled the rear legs to be pulled together to take the weight off the chocks so that the chocks could be removed. Bill Porta had calculated all of the relevant loads involved in this process and had sized the cable and sheave blocks accordingly so that it had sufficient capacity to pull the rear legs together. As the cable had enough capacity to pull the rear legs together it could also act as a secondary restraint when full tension was applied. This mechanism could never have stopped a dynamic load (that is, a structure already falling) from coming apart. [30] It was not appropriate to have full tension on the steel cable at the time of the cut, because that would have compressed the cross-member that was being cut by Paul Newton – this was not what we were trying to achieve. [31] The chocks did not come out easily when demolishing the No.4 Ore Bridge. However, we were successful in removing one chock by using the cable mechanism and that was enough to allow the rear of the structure to fall as planned and led to the demolition of No.4 Ore Bridge. The cable that was used on No.4 Ore Bridge was destroyed after that exercise to ensure that a potentially damaged cable could not subsequently be used for some other task. Preparation for demolition of No.5 Ore Bridge [32] After the demolition of No.4 Ore Bridge, we went through a process of identifying what we would change in demolishing No.5 Ore Bridge. The only problem we had with the demolition of No.4 Ore Bridge was that the rear of the raised platform of the ore bridge dug into the ground when it came down rather than sliding along the ground and ultimately resting parallel to the ground. This left some of the structure in the air following the demolition, which made it more difficult and risky for the excavators to process the scrap. To avoid this occurring in the demolition of No.5 Ore Bridge, we used skid plates so that the rear of the structure would not dig into the ground. We also spoke to all of the workers involved in the demolition of the No.4 Ore Bridge in tool box discussions to get ideas about what we could do differently that would improve the process. Several suggestions were made such as the way the slings might be used on certain jobs and so on, but there was no substantial change in the general methodology that was applied. [33] We used a bigger cable on the No.5 Ore Bridge because we were dealing with a larger mass (from recollection, 1,200 tonnes versus 900 tonnes). The cable mechanism had worked well during the demolition of No.4 Ore Bridge and, accordingly, we did not change it for the No.5 Ore Bridge since a change did not seem necessary. We went through with WorkCover and BHPBilliton what we wanted to do with No.5 Ore Bridge, and our approach was authorised by both of them. It was unanimous by all parties that No. 4 Ore Bridge Demolition had gone well, the methodology was proven and we should not change methodology for No. 5. The AWU, BHPBilliton, and Workcover raised no concerns about the safety of the workplace or our procedure. [34] Again, the workplace was visited several times by Workcover, AWU and BHPBilliton during the preparation for demolition of No. 5 Ore Unloader. All were happy with the safety of the workplace, the communication/consultative process and the methods being used. Anyone was free to stop the process at any time if they had concerns regarding the safety. No one did. The same demolition team were used for the demolition of No. 5 Ore Unloader as No. 4 and all were fully conversant in the method and what to expect. 25 The affidavit of Mr Mols corroborates in many respects the planning, preparation and co-ordination undertaken by the defendant's employees in undertaking the demolition procedure. Mr Mols recounts in some detail the events leading up to the premature collapse of the No. 5 Ore Bridge on 11 October 2001. It is appropriate, I believe, to incorporate Mr Mols' affidavit evidence on this point where he states: [32] On 11 October 2001, which was the day of the collapse, each of the five excavators had already been connected to large wire ropes connecting them to either the legs of the A frame, the safety rope or the chocks. [33] During the morning of that day, an excavator that was connected to one of the H beams forming part of the chock mechanism moved to help unroll the wire rope, and in doing so pulled the H beam off the rail and out of alignment with the wheel and the chock. This did not pose any risk to safety, as the structure was still stable at that point. However, I warned each of the operators of the excavators that they had to be very careful in avoiding any movement of the rope when it was attached to the chocks. This is because ropes of that heaviness move differently from ordinary lightweight ropes in that a small movement at one end of the rope can still result in a movement at the other end of the rope even thought there may be large amounts of slack between the two ends of the rope. [34] During the morning of 11 October 2001, one of the excavators was connected to a large wire rope which in turn was connected to one of the H beams forming part of the chock mechanism. The excavator moved to help unroll the wire rope, and in doing so pulled the H beam off the rail and out of alignment with the wheel and the chock. This did not pose any risk to safety, as the structure was still stable at that point. However, I warned each of the operators of the excavators that they had to be very careful in avoiding any movement of the rope when it was attached to the chocks. This is because ropes of that heaviness move differently from ordinary lightweight ropes in that a small movement at one end of the rope can still result in a movement at the other end of the rope even thought there may be large amounts of slack between the two ends of the rope. [35] During the afternoon, we got to the point of making the final cuts through the horizontal member of the A frame which would allow the legs of the A from to move apart and collapse the structure. [36] A Gardner Perrott operator, Paul Newton, was using an oxy torch to make those cuts. Paul was situated in a cherry picker less than 1.8 metres above ground level. The oxy equipment he was using was on a forklift truck which was operated by Kelly Ratu. Kelly was observing Paul as he made the cut. Grant Moore (Supervisor) was watching the cut as Paul made it. It is important to keep an eye on the cut to see whether it is opening up under the pressure of the weight - this gives a good gauge of what the structure is doing as it is being progressively weakened. [37] I was in the general area of the Ore Bridge watching and listening - as a large structure such as this is gradually weakened you can hear it groan as it settles into its new position. I was also observing the chocks to see if the wheels were putting pressure on the large H beam - again, this provided some guidance as to what the structure was doing as it was being weakened. [38] Approximately 20 minutes before the collapse, I inspected the western chock and noticed that it was properly located. I continued to observe other parts of the structure. Immediately before the collapse, I again inspected the H-beam next to the western chock and noticed that the H-beam had moved out of alignment with the chock. I turned around to alert other members of the team of this fact and lost my footing as I turned. As this happened, the structure gave way and the entire structure commenced to collapse. As Paul was making the final cut before the planned demolition would have taken place, the structure collapsed as had been planned, that is, the rear legs of the A frame splayed open allowing the rear of the raised platform to fall downwards and backwards away from the harbour. As it fell, the boom moved away from the harbour past top dead centre and then back in to the drop zone crushing the raised platform and the rest of the structure. As the structure collapsed, I ran away from it. I have subsequently learnt from discussions with Paul Newton and from reviewing video footage of the collapse that Paul Newton jumped free from the cherry picker and he and Kelly Ratu ran away from the structure as it collapsed. Paul, Grant and Noel each ran away from the structure as it collapsed, as did Grant Moore the supervisor overseeing the cutting by Paul. Paul was able to jump free of the cherry picker because we had decided at the toolbox meeting that morning that it was safer for him not to be held in the cherry picker by a harness in case there was a sudden need for him to get away from the structure, and having regard to the fact that he was less that 1.8 metres above ground level. 26 Central to the affidavit evidence of Mr Eckersley and Mr Mols was that in the planning, preparation, co-ordination and the actual undertaking of the demolition of No. 5 Ore Bridge, every step of the process had been carefully and fully considered within the project team. Further, that all employees engaged in the overall demolition procedures had been inducted, trained and supervised in order to ensure the job was done with proper attention to safety and potential risks in undertaking the project. As well, the employees were consulted on an ongoing basis as to the progress of the demolition procedure and were able to be involved in workplace discussions relevant to safety concerns. 27 In addition to all the above, both Mr Eckersley and Mr Mols depose to the close involvement of relevant WorkCover inspectors at all stages of the project. They were, by all accounts, constantly present on the site and had full access to all information, and to the extent that they required it, relevant decision making in relation to the project. As was required, WorkCover formally approved the demolition procedure as submitted by the defendant, subject to the conditions it imposed, which were complied with. 28 As with WorkCover, the defendant's planning and preparation for the demolition procedure also involved input from the employees union, the Australian Workers Union. 29 Notwithstanding all of those steps, the defendant does not seek to resile from its role as the employer ultimately responsible for the safety at its work sites consistent with its obligations under the Occupational Health and Safety Act. 30 In my view, another relevant factor in relation to the matter already referred to is that prior to the premature collapse of No. 5 Ore Bridge, the defendant had already successfully completed the demolition of No. 4 Ore Bridge. In undertaking the procedure in relation to the No. 5 Ore Bridge, it had planned and followed the same procedure that it had successfully, and by all accounts, safely undertaken in relation to No. 4 Ore Bridge. 31 Having successfully demolished No. 4 Ore Bridge, the defendant then considered the approach it would take to the demolition of No. 5 Ore Bridge. As Mr Mols deposes: [26] Number 5 Ore Bridge was very similar in design to Number 4 Ore Bridge, and comprised of the same type of base (ie a raised platform with two vertical legs at the front and two legs forming an A frame at the rear, and a large boom attached by pivot hanging approximately 10 degrees towards the harbour). The legs of the structure had rail wheels which allowed the structure to move along rails that ran parallel to the edge of the harbour. [27] Despite these similarities with the No.4 Ore Bridge, there were also some differences. Firstly, number 5 Ore Bridge had a larger raised platform at the rear of which was housed various pieces of machinery and other structures. Also, we had learnt some things from the demolition of number 4 Ore Bridge. [28] Bill Porta, David Eckersley, Grant Moore and I were again involved in developing the work method statement for the No.5 Ore Bridge, a copy of which is attached and marked 'F'. At the same time as developing the work method statement, we also developed the Job Safety Analysis (JSA) with Ian Wade, the OH&S manager - a copy of the JSA for the No.5 Ore Bridge job is attached and marked 'G'. This work method statement incorporated changes from the work method statement adopted for No.4 Ore Bridge to accommodate the different circumstances of this exercise, and to take advantage of the things we had learned in the demolition of the No.4 Ore Bridge. The key differences between the work method statements are: (a) a drop zone had already been prepared for the demolition of number 5 Ore Bridge, so less work was required in preparing that area; (b) to avoid the rear end of the raised platform from digging into the ground as with number 4 Ore Bridge, skidpans made up of large pieces of metal plate which were approximately 25mm or 30mm thick were installed at the relevant point of the drop zone. With these exceptions, the work method statement adopted for the number 5 Ore Bridge was the same as for the number 4 Ore Bridge; and (c) it was necessary to remove any environmental hazards from the machinery and structures at the rear of the raised platform - this included draining gearboxes and other machines of oil, removing any asbestos and removing transformers which contained PCB, which is a harmful liquid. 32 There was also a different weight factor between the two Ore Bridges. No. 4 Ore Bridge weighed some 900 tonnes whereas No. 5 Ore Bridge weighed about 1200 tonnes. That factor was taken into account. As Mr Eckersley stated: We used a bigger cable on the No. 5 Ore Bridge because we were dealing with a larger mass. (1200 vs 900 tonnes) 33 The affidavit evidence of Mr Eckersley and Mr Mols is certainly detailed as to the steps the defendant took in preparing for the demolition procedure. On one view, it discloses the defendant as a company which set about the task of planning what was an inherently dangerous procedure in a methodical and comprehensive way with safety very much at the forefront of its considerations. 34 Notwithstanding that, in relation to No. 5 Ore Bridge, there were obviously shortcomings to the stability and alignment of the chocks, they being the primary system of restraint in the demolition process. As the defendant quite properly acknowledges, it had not made proper provision to the secondary system of restraint, that being the safety cable, to be able to prevent the Ore Bridge collapsing in the absence of the full restraining power of the chocks. 35 There was one other matter raised by counsel for the prosecution about the work procedure followed by the defendant concerning the demolition of No. 5 Ore Bridge. That is, the decision taken earlier on the day of the accident as to the use of a safety harness by Mr Newton. Mr Newton's task on that day was to make the final cuts through the horizontal member of the A-frame which would allow the legs of the A-frame to move apart and collapse the structure. 36 Mr Newton used an oxy torch to make those cuts. He was situated in a cherry picker, according to Mr Mols, 'less than 1.8 metres above ground level'. A decision was made on the morning of the accident that Mr Newton would not wear a harness while in the cherry picker because, Mr Mols said: We had decided at the toolbox meeting that morning that it was safer for him not to be held in the cherry picker by a harness in case there was a sudden need for him to get away from the structure and having regard to the fact that he was less than 1.8 metres above ground level. 37 It is not in dispute that the ability of Mr Newton to extricate himself quickly from the cherry picker saved his life. 38 The prosecution points to the absence of a safety harness in place at the time as evidence of the defendant being in breach of a relevant industry code of practice and, as such, it was submitted, it is evidence of the defendant's lack of commitment on the ground to work safety procedures that should have been adhered to. Mr Eckersley acknowledged the technical breach of the absence of a safety harness for Mr Newton on that day. It has not been clarified before me as to what was the precise code of practice being referred to and whether height provisions did or did not apply, and if so, what they were. If I was to express the impression I was left with, it was that there had been height provisions in place, but they had, shortly before the accident, been removed. What they were replaced with is not clear to me. 39 The fact that Mr Mols makes specific reference to the question of harness and height provisions and the decision to proceed without it, is evidence, in my view, that it was known that a safety harness was required but such a requirement was weighed against the possible need for Mr Newton to exit the cherry picker quickly and the fact that he was less than 1.8 metres or some five feet from the ground. 40 While I accept that codes of practice are there for sound safety reasons and should be adhered to, I am not persuaded that the decision taken in the manner it was taken and the reasons for it are such as to constitute what I would characterise as a reckless disregard for safety standards on the part of the defendant or a genuine lack of commitment on the ground to work safety. It was, if anything, more an error of judgment as to how to properly process and deal with an issue that required consideration and a decision to be taken in the overall interests of safety. Fortunately, it was an error of judgment that saved Mr Newton's life. 41 Those principles the Court must have regard to in determining the question of penalty are well known. One must start by considering the objective seriousness of the offence. That principle is well settled and was expressed by a Full Bench of this Court in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464, more specifically at 476, where the Court had this to say: In the case of an offence under s15(1) of the Occupational Health and Safety Act , there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence when 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. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant. 42 In relation to the matter before me, it is clear that the intention was to cause the bridge to collapse in a planned and safe manner. The task to be undertaken was inherently dangerous. In other words, the one thing the defendant did not want to happen was for the bridge to collapse unexpectedly, prematurely, and thereby unsafely. That was a known and foreseen risk that the work method statement and the job safety analysis was designed to avoid. 43 It would follow, as night follows day, that if the two systems of safety support did not work as calculated and planned, real, let alone potential risks to safety would arise. 44 The defendant has, as the statement of facts discloses, acknowledged its failures as to the chocks and the apparent inability of the cable structure to prevent the premature collapse of the bridge. It cannot be said that the defendant did not have some prior warning that all was not well with the alignment of the chocks. That is, before anticipated, the chock on the outside of the eastern portal leg moved out of position. The bridge moved ever so slightly, some three millimetres east. That was at about 12 midday on 11 October 2001. The chock was repositioned and the demolition continued. 45 At approximately 5.40pm on the same day, more than five hours later, Mr Mols observed that the chock on the outside of the western portal leg had moved 20 millimetres north leaving approximately five millimetres of chock still engaged with the stopping block. On any view, that was a significant misalignment of the chock. It is not surprising perhaps that almost immediately, if not very shortly thereafter, the bridge unexpectedly collapsed. 46 As I understand the evidence, the movement in the chocks, occurring at the time and in the way that it did, should not have occurred. 47 I accept the submission of the prosecution that those indicia of lack of stability in the alignment of the chocks should have caused an immediate response by the defendant to pause and reappraise the demolition procedure. The known and foreseeable risk to safety if the bridge should collapse prematurely were such that such action was called for. Peoples lives were at risk and, on any view, Mr Newton and others are lucky to be alive. That is a factor relevant to assessing the objective seriousness of the offence before me. 48 Overall, I consider the offence before me to be a very serious one and I propose to approach considerations as to penalty on that basis. 49 Next, regard must be had to general and specific deterrence. That much is evident from the decision of the Full Bench of this Court in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 particularly at paras [74] and [77]. In para [74] the Full Court says in relation to general and specific deterrence, that: We consider that the extracts from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this 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 to be given weight of some substance in the sentencing process. 50 Clearly, both general and specific deterrence are relevant factors in my considerations. In my view, the element of specific deterrence is particularly significant in these proceedings. The defendant is a large multinational corporation employing some 4,500 people in Australia. Within the ambit of its diverse trading entities, the defendant has accumulated 22 convictions for offences under the occupational health and safety legislation of this State. True it is that some of those offences go back to 1980, but fifteen of them span the period from 1997 onwards. That is, on any view, a substantial number of offences over a seven year period. I accept, as the defendant submits, that prior convictions do not, of themselves, justify a greater penalty than the offence warrants but it does disentitle the defendant to the full measure of leniency that it would otherwise normally be given in the absence of a prior criminal record. 51 To the extent that that proposition was relied upon by Haylen J in WorkCover Authority of New South Wales v Rail Infrastructure Corporation (No. 2) (2002) NSWIRComm 217, I also note his Honour's comments about the defendant in those proceedings, applicable as it is, in my view, to the defendant now before me: The defendant in a relatively short period of time has accumulated a worrying number of convictions under the Act. 52 The use to be made of a defendant's prior criminal record is well settled. As was said by a majority of the High Court in Veen v The Queen (No. 2) 164 CLR 465: There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the incident offence. To do so would be to impose a fresh penalty for past offences. 53 The defendant before me is a large employer and is engaged in industries that have the potential to create significant and real risks to safety. It must therefore fashion its commitment to occupational health and safety as one that is not just centred on documented policies but also one that ensures those policies are carried through on the ground. 54 I accept that, in all the circumstances before me, there was a concerted and genuine effort on behalf of the defendant to plan, prepare and put in place a system of work in relation to the demolition of the two Ore Bridges that had, as its underpinning, an attempt to do it safely. It had already done so in relation to No. 4 Ore Bridge. In adopting the same methodology with some minor modifications in relation to No. 5 Ore Bridge, it may well have been lulled into a false sense of security by its successful and safe operation in relation to No. 4 Ore Bridge. In any event, in relation to No. 5 Ore Bridge, it allowed itself, in my view, to take its eye off the ball as far as ensuring the safe operation of the very methods it had put in place to ensure safety. As a result, its employees were exposed to a very real risk to their safety in ways that have been highlighted before me and which the company has acknowledged by their plea of guilty. 55 The plea has been entered at the earliest opportunity and the prosecution has acknowledged that the defendant is entitled to a discount on that basis in accordance with the principles established in R v Thompson, R v Houlton (2000) 49 NSWLR 383. I assess that discount at 25 per cent. 56 I have already commented on the defendant's prior convictions. As to other subjective factors which I may properly take into account, I note, and it is not disputed, the defendant fully co-operated with the WorkCover Authority investigation into this matter. Indeed, the defendant was proactive in those investigations and they have done all that they possibly could to assist in that regard. 57 I note also that the defendant acted quickly and compassionately to provide counselling and advice to those employees, including Mr Newton, who clearly were profoundly affected by this accident. 58 Taking these factors into account I determine a further discount on penalty of 5 per cent. 59 Taking into account all the matters that I have referred to, I determine a notional penalty in this matter of $200,000. In applying the discounts I have determined, I determine a final penalty of $140,000. 60 Accordingly, I make the following orders: · The defendant is convicted of the offence as charged. · I impose a penalty in this matter of $140,000. · I allocate a moiety to the prosecution on the usual terms. · Costs to the prosecutor as agreed or assessed in accordance with the Rules of the Court. 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.