Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Blume v LG Electronics [2003] NSWIRComm 34 PROSECUTOR Inspector Ian Blume PARTIES : DEFENDANT L G Electronics Australia Pty Limited FILE NUMBER: IRC 8554 of 2001 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Section 16(1) of the Occupational Health and Safety Act - Plea of guilty - Employee fatally injured when washing machines being transported by a forklift fell on him - Maximum penalty - Steps available to avoid risk - Deterrence - Subjective factors including early plea of guilty - Penalty imposed - Costs LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) 49 NSWLR 610, (2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED : Tyler v Sydney Electricity (1993) 47 IR 1 Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (2000) 99 IR 163 WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 HEARING DATES: 11/25/2002 DATE OF JUDGMENT: 02/19/2003 PROSECUTOR Ms L McManus of counsel Solicitor: Ms R Panagoda WorkCover - Legal Group LEGAL REPRESENTATIVES: DEFENDANT Mr R Goot SC Solicitor: Mr S Nettleton Blake Dawson Waldron JUDGMENT: - 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Date: 19 February, 2003 Matter No IRC 8554 of 2001 INSPECTOR BLUME v L G ELECTRONICS AUSTRALIA Prosecution under s 16 (1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] IRComm 34 1 This is a prosecution by Inspector Ian Blume of the WorkCover Authority of New South Wales. In an Application for Order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 filed on 21 December 2001 the Inspector alleged that the defendant, L G Electronics Australia Pty Ltd, failed to ensure that persons not in its employment, in particular Siva Sivasubramaniam, were not exposed to risks to their health and safety from conduct of its undertaking whilst they were at its place of work contrary to s 16(1) of the Occupational Health and Safety Act 1983. 2 Mr Sivasubramaniam was an employee of TMP Worldwide eResourcing (Industrial Services) Pty Ltd formerly known as Labour Linq Pty Ltd ("TMP"). TMP carried on the business of recruitment and labour hire. From time to time TMP provided the defendant with labour hire recruitment services under an agreement between TMP and the defendant. 3 On 8 February 2000 Mr Sivasubramaniam was assisting in the unloading of washing machines from a shipping container at the defendant's Rydalmere plant when washing machines being transported by a forklift fell on Mr Sivasubramaniam, causing him head injuries. Mr Sivasubramaniam later died in hospital. 4 The particulars of the charge were that the defendant: a. Failed to ensure that persons not in its employment, particularly Siva Sivasubramaniam, were not exposed to risks to their health and safety of being injured by the transporting eight (8) cartons containing washing machines by forklift truck on the premises. b. Failed to ensure that persons not in its employment, particularly Siva Sivasubramaniam, were not exposed to risks to their health and safety of being injured by the transporting by forklift truck of eight (8) cartons containing washing machines in the configuration of four (4) cartons on the bottom and four (4) cartons resting on the bottom four (4) without the top four being tied or adequately secured. c. Failed to provide or maintain a system of work for the transporting of eight (8) cartons of washing machines by forklift truck on the premises without performing any or any adequate examination of the safety in doing so to determine whether it exposed persons, particularly Siva Sivasubramaniam, to risks to health or safety. d. Failed to provide proper or adequate training or supervision in relation to the identification of hazards involved in transporting eight (8) cartons of washing machines by forklift truck on the premises. 5 The defendant entered a plea of guilty to the charge. 6 An agreed statement of facts was submitted. The statement described the incident as follows: On 8 February 2000 a shipping container, which was on the back of a semi-trailer, backed up to loading dock 5 inside the premises. The shipping container had doors at the rear which opened out. Inside the shipping container were cardboard cartons, each of which contained a washing machine. These cartons were stacked in an upright position, two (2) cartons high. No carton was attached to another carton. Each carton measured 1080 mm high by 740 mm wide by 685 mm deep. Each washing machine in the carton weighed 54 kilograms. The system employed by the defendant to unload the cartons from inside the container included the following: a. two (2) men moved the cartons inside the container to the rear edge of the container; b. a forklift truck ("the forklift"), which had carton clamps fitted to it ("the clamps"), was then driven onto the loading ramp. The forklift then reached into the container with the clamps and clamped eight (8) cartons in a configuration of two (2) cartons wide, two (2) cartons deep and two (2) cartons high; c. the clamps were constructed of steel and included two steel plates ("the plates") each of which measured 1188 mm high by 1202 mm wide. The plates were covered with a high friction rubber compound sheet of 8mm thickness by 1.43 square metres to assist in gripping the cartons. The plates moved together to grab the cartons. The clamps were controlled by hydraulic rams operated off the forklift's hydraulic system; d. The forklift lifted the cartons from the container using the two plates by pressure and friction; e. In lifting the eight cartons the plates were placed on either side of the cartons and clamped to a preset pressure. Friction between the load and the plates on the clamps allowed the load to be lifted as the plates were raised. In carrying out this procedure of lifting the eight (8) cartons there was a large area of contact between the plates and the surface of the four (4) cartons on the bottom level. There was a smaller area of contact between the plates and the four (4) cartons on the top level. The plates reached a height of approximately 100 - 150 mm from the base of the top cartons. Each of the cartons was approximately 1080 mm high. Approximately 980 - 930 mm of the surface area of the four (4) cartons on the top level was not clamped. After clamping the eight (8) cartons as described in paragraphs 11 and 12 above, the forklift then moved in reverse taking the cartons out of the container and into the premises over a ramp on the loading dock . The forklift then placed the load on the ground so that the top four (4) cartons could be partly wrapped in plastic to consolidate or secure the load. The top level cartons were wrapped approximately three quarters of the way up the cartons. The cartons were again picked up and transported by forklift and placed in their storage locations. The cartons were wrapped for employee safety and product protection. Apart from the plastic wrapping the four (4) top cartons were not tied or affixed to the bottom four (4) cartons. Whilst this procedure involving the forklift occurred, two (2) men in the container positioned another load of eight (8) cartons from the container to be taken out by the forklift into the premises. Initially and until more room was created inside the container by the removal of cartons, it was too dangerous to wrap the cartons in the container. However once the first 2 or 3 stacks of 8 cartons had been removed, wrapping took place inside the container. At about 9.00am on 8 February 2000, the forklift, driven by Mr James Zammit, took a group of eight (8) cartons from the container, clamped in the manner described above. The group of 8 cartons on the forklift had been set up in the container by Mr Wayne Robson and Mr John Marr. This was the third load of cartons removed from the container. Mr Sivasubramaniam was ready to perform his task of wrapping plastic around the top four (4) cartons. Mr Zammit said: "I picked the stack of eight up. At this stage the ramp was not raised. I reversed back over the ramp, turned the rear of the fork to my right. My intention was to place the stack alongside the previous stack so that Siva could secure the load. I commenced forward across the ramp when I saw Siva dash behind the load of washing machines". No one saw exactly what then occurred. Mr Zammit, who was driving the Forklift at the time, said : "My back wheels were still on the ramp, I had travelled approximately four feet in the forward direction. My foot was on the brake. I leaned over the right hand side of the fork to try and locate where Siva was. Unable to see him I leaned to the left of the fork. That is when I heard the noise of creaking cardboard. I looked up at the load and saw a gap appearing between the top washing machines. I sat up to the centre of the fork and that is when they fell, I heard them fall. I jumped off the fork and proceeded forward. I saw one washing machine on the side, I saw Siva on the floor and the other washing machine to the left hand side of him". After receiving treatment at the Premises in relation to head injuries, Mr Sivasubramaniam was taken to hospital. Mr Sivasubramaniam died at hospital. The work procedure that was used at the time of the accident was standard procedure for the Premises. Mr Kinchela, the defendant's then Warehouse Supervisor, confirmed that Mr Sivasubramaniam had carried out the task " many times " and " daily ". Mr Rochford, the defendant's then Warehouse Manager, said that Mr Sivasubramaniam had carried out the work on previous occasions "without incident." At the time of the accident Mr Sivasubramaniam was carrying out his duties in assisting with the unloading of the cartons of washing machines from the shipping container. His duties included assisting in getting the cartons ready to be taken out of the container by the forklift and, when the eight (8) cartons were taken out by the forklift and placed on the floor of the premises, wrapping plastic around the top four (4) cartons. The forklift was not misused at the time of the accident. 7 In relation to investigations into the incident the agreed statement said: An inspection of the forklift conducted immediately after the accident by Crown Equipment Pty Ltd indicated that there were no faults with the operation and functioning of the forklift on the day of the accident. Also an inspection of the clamps conducted immediately after the accident by Cascade Australia Pty Ltd indicated that there were no faults with the operation and functioning of the clamps on the day of the accident. On 21 November 1999, Ms Elke Small, Consultant for TMP, had conducted a Client Safety Inspection at the premises. This site assessment was conducted using a questionnaire developed by the defendant. The inspection by TMP did not involve the observation of the specific duties or the processes to be carried out by Mr Sivasubramaniam when he was performing his employment duties at the premises for the defendant. The defendant did not have written safety procedures dealing with the unloading of washing machines. However, Gary Hull, the defendant's then Logistics Manager, gave the following answer in response to the following question: "Was there a written procedure for the task of removing the washing machines that was being carried out at the time of the accident on 8 February 2000? There was not written procedures but there were procedures on how to safely load and unload and these were instructed to personnel who were given that task." When TMP checked the defendant's safety policy, it was informed that although it did not have standard operating procedures it was in the process of establishing standard procedures and that TMP would be provided with a copy of them when they were available. TMP conducted Occupational Health and Safety ("OHS") induction training with Mr Sivasubramaniam and conducted assessments of his understanding of basic OHS as well as his English comprehension. Mr Sivasubramaniam was required to watch a safety video and complete a questionnaire on the video which was then marked and assessed. Mr Sivasubramaniam scored 100% in his video assessment, 17/20 in English comprehension and 17/17 for his numeracy. Employees were also advised of what should take place in the event of an accident and what were acceptable work practices on site. Once Mr Sivasubramaniam began work, Ms Small carried out a quality check by phoning both the defendant and Mr Sivasubramaniam to ensure both were happy with the working arrangement. Mr Hull stated that Mr Sivasubramaniam had been warned on occasions that if any product did fall, not to try to save it, as he would injure himself. Mr Zammit said that the safety procedure in place in unloading containers was for personnel to stand clear and that Mr Zammit and Mr Sivasubramaniam had been instructed to stand clear when the forklifts were about. The defendant had a buddy system operating in regard to safety. There was no OHS committee that covered the premises at the time of the accident. No formal safety assessment had been performed on the procedure for unloading cartons of washing machines at the premises by TMP or by the defendant. No formal risk assessment had been carried out to determine the possible risks associated with the use of the forklift and the clamps. The risk of the cartons of washing machines falling whilst being moved on the forklift was not formally assessed. The forklift had been purchased by the defendant as a new piece of machinery and the clamps were designed specifically by others for the purpose for which they were being used at the time of the accident. 8 The prosecution tendered into evidence a report by Robert Egan, senior inspector of the WorkCover Authority, who visited the scene of the accident. Also tendered into evidence by the prosecution was a bundle of ten photographs showing the scene of the accident, the forklift and carton clamps and eight cartons of washing machines in a configuration of two cartons wide, two cartons deep and two cartons high in the carton clamps. A prior conviction sheet was also tendered showing that the defendant had no prior convictions. 9 The defendant tendered an affidavit of Paul Douglas Green, the defendant's operations manager and a site induction manual. Mr Green was not required for cross examination. Mr Green's affidavit dealt with the following matters: · The company, employees and products. · The defendant's Rydalmere site. · Receiving and unloading product at the Rydalmere site. · Change in type of product received at the Rydalmere site. · Standard operating procedures. · Safety initiatives concerning the unloading and storing of product. · OHS Committees and meetings, key safety objectives and time targets at the Rydalmere site. · Use of labour hire personnel. · Restructure of warehouse operations in May 2002. · Assistance to Mr Sivasubramaniam's family; the defendant's workers' compensation history; the defendant's community participation; the defendant's expenditure on safety equipment since 1999; senior management's commitment to safety. 10 Ms L McManus of counsel appeared for the prosecution. Ms McManus helpfully tendered written submissions on sentence which may be summarised as follows: · The primary factor to consider in relation to penalty is the objective seriousness of the offence. The objective features in this case which call for a substantial penalty are as follows: o the maximum penalty, which in this case is $550,000: see WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (2000) 99 IR 163 at 185-186; o the need for general and specific deterrence: see Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 cited with approval in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) 49 NSW LR 610; (2000) 99 IR 29 at 60. In relation to specific deterrence the defendant has taken a number of steps since the accident to improve safety. Some of these steps, for example, the Standard Operating procedures, are yet to be fully implemented two years after the accident. o the defendant had an obligation to inform itself of safe working. When considering a statute giving expression as a matter of public policy, to standards of safety, management has a positive obligation of informing itself of circumstances of safe working: see WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 100; o the nature of the offence in that it involved obvious risks that were reasonably foreseeable: see Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476. The foreseeability of the risk is evident from the following: · the cartons being carried were two high, two deep and two wide. The cartons were being taken to a place to be secured and at the time of the accident were not tied together in any way; · the cartons weighed 54 kg each; · approximately 930 mm to 980 mm of the top cartons was not gripped by the clamps; · the forklift was moving immediately before the accident, although stationary at the time of the accident. o the potential risk had been identified by the defendant and Mr Sivasubramaniam had been warned on occasions of the risk of the product falling and the prospect of injury to himself if he tried to save the product. o the nature of the offence in that there were simple steps to remedy the failures. These steps were as follows: · a safe system of carrying the cartons; · a formal risk assessment to identify potential risks and methods of addressing those risks. o After the accident the defendant conducted a risk assessment in conjunction with WorkCover and revised its system of work by carrying four cartons only on the carton clamp with no carton resting on another. · The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 at 456. Mr Sivasubramaniam suffered fatal injuries. · The defendant is entitled to have taken into account, as mitigating the objective seriousness of the offence, its plea of guilty. In this case the plea of guilty was indicated at an early stage and before the matter was set down for hearing. The utilitarian value of the plea would be at the higher end of the scale of discount. · The defendant has no prior convictions. · The prosecutor seeks a moiety of the fine. · Costs are sought as agreed or if agreement cannot be reached, leave is sought to approach the Court for final orders as to costs. 11 Mr R Goot SC with Mr S Nettleton appeared for the defendant. Mr Goot referred to what he described as "the very comprehensive steps" taken by the defendant after the accident to avoid a recurrence of the accident and to improve its occupational health and safety systems. This, he said, should be taken into account in considering the issue of specific deterrence. 12 Mr Goot submitted the accident was not readily foreseeable; there was no evidence of any carton having fallen from the forklift in the past. It was submitted that the defendant has changed the labour hire company it had previously used and one of the criteria in selecting the new firm was the quality of its induction procedures, reliability of labour provided and the focus on safety. Further, there had been a restructuring of the warehousing operation, greater opportunity for direct supervision and visual monitoring of warehouse procedures and personnel. 13 Mr Goot referred to the assistance provided to the deceased's family and the defendant's participation in the community. He submitted that the discount for the guilty plea should be 25 per cent and a further discount for the other subjective factors. The Verdict 14 After reviewing the agreed facts and in light of the charge and the particulars thereof, I am satisfied that the offence has been proven. The plea of guilty by the defendant was properly made and I enter a verdict accordingly. Consideration 15 Given the factors to be taken into account in considering the objective seriousness of the offence, I have come to the conclusion that the offence is, indeed, a serious one. As the agreed statement of facts revealed, the washing machines, weighing 54 kg each, were moved by forklift from the shipping container onto the floor of the warehouse in a configuration of two cartons wide, two cartons deep and two cartons high. Approximately 930-980mm of the surface area of the four top cartons on the top level was not clamped leaving a large area unclamped. The top cartons were not tied together or secured in any way other than by the carton clamps and any reasonable observer could foresee that if the forklift was to stop suddenly or the load tilted or slipped in the clamps there was a danger of the top cartons falling. 16 Mr Sivasubramaniam was waiting to wrap plastic around the top four cartons to secure the load. As the forklift moved forward, Mr Sivasubramaniam went "behind the load of washing machines". No one saw exactly what happened but two of the washing machines fell from their stack. The forklift driver jumped down from his forklift and saw Mr Sivasubramaniam on the concrete floor with the two washing machines lying beside him. 17 In assessing the seriousness of the offence I have taken into account the fact that the deceased had performed his task of wrapping the washing machine cartons "many times" and he had been warned on occasions that if any product did fall, not to try to save it as he would injure himself. Mr Sivasubramaniam had also been warned to stay clear when forklifts were about. No doubt Mr Sivasubramaniam understood these instructions because his comprehension of English and understanding of safety procedures and systems was high. But the potential for an accident to occur in circumstances of the load configuration was, in my opinion, obvious. And it must have been obvious to the defendant because workers were warned about the prospect of product falling on them. In this regard, I note that the agreed statement of facts that no formal risk assessment had been carried out to determine the possible risks associated with the use of the forklift and clamps and the risk of the cartons of washing machines falling whilst being moved on the forklift had not been formally assessed. I also note that there were no faults with the operation and functioning of the clamps on the day of the accident. 18 As the prosecutor submitted, the risk to safety arising from a carton falling from the forklift whilst being unloaded was reasonably foreseeable. Indeed, it was foreseen by the defendant. Moreover, there were simple and straightforward steps available to the defendant to avoid the risk to safety and these steps were implemented by the defendant following the accident, including the non-stacking of cartons during the unloading operation. 19 As to the fact that the safety procedure in place in unloading containers was for personnel to stand clear when forklifts were about, such a procedure was clearly inadequate and it does not take much imagination to foresee the prospect of a worker's judgment in relation to safety momentarily lapsing. With the cartons being transported in an unsecured fashion the lapse of judgment or inadvertence can lead to tragic results as this case demonstrates. 20 I accept the prosecutor's submission that although the gravity of the injury actually resulting from a breach of the Act does not, of itself, dictate the amount of penalty, the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety. In this case Mr Sivasubramaniam suffered fatal injuries in circumstances where his death could have been easily avoided. 21 As to the question of deterrence I am guided by the judgment of the Full Bench in Capral Aluminium. As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. As to specific deterrence, I am satisfied that the defendant takes very seriously its obligations in respect of occupational health and safety and that it has taken appropriate steps to avoid a recurrence of the incident that occurred on 8 February 2000. The defendant has also taken a range of other initiatives to improve occupational health and safety and has given safety a priority in the selection of firms that supply labour. In these circumstances, specific deterrence is not a significant element in my consideration as to penalty. 22 In relation to the subjective factors to be taken into account it was conceded by the prosecutor that the defendant entered an early plea of guilty. I also note that the defendant has no prior convictions. 23 The steps taken by the defendant to improve its occupational health and safety systems and procedures are commendable. I also take into account the assistance provided to Mr Sivasubramaniam's family and the contributions the defendant makes to the community in various ways. 24 In considering an appropriate penalty in this case I have considered the objective seriousness of the offence as well as subjective factors including the utilitarian value of an early plea of guilty, that the defendant has taken very commendable steps to improve workplace safety and to avoid a recurrence of the risk to safety that occurred on 8 February 2000, the defendant's good safety record and the fact it has no prior convictions, its assistance to the deceased's family and the defendant's standing as a good corporate citizen. 25 In all the circumstances I would assess an appropriate penalty at $235,00. Given the early plea of guilty I would allow a discount of 25 per cent with a further discount of 10 per cent for the other subjective factors leaving a penalty of $152,750. Orders 26 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $152,750 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.