Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority v Red Lea Chickens (No 2) [2001] NSWIRComm 40 PROSECUTOR: PARTIES : WorkCover Authority of New South Wales (Inspector Macbeth) DEFENDANT: Red Lea Chickens Pty Ltd FILE NUMBER: IRC 6669 of 1999 CORAM: Boland J CATCHWORDS : Occupational health and safety - Breach of s 15(1) of the Occupational Health and Safety Act 1983 - Plea of not guilty - Employee injured when collided with heavy vehicle on defendant's premises - Offence found proven and verdict of guilty entered- Effect of answers by prosecution to request for further and better particulars - Assessment of penalty - Objective seriousness - Subjective features in mitigation - Fine imposed with moiety to prosecutor - Costs allowed to prosecutor Factories Shops and Industries Act LEGISLATION CITED : Occupational Health and Safety Act 1983 Road Transport (Safety and Traffic Management) Act 1999 Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29 CASES CITED : Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting (unreported, 13 April 1995, Matter No CT94/1037) HEARING DATES: 02/07/2001 DATE OF JUDGMENT: 03/15/2001 PROSECUTOR: Mr I Taylor of counsel Solicitor: Mr G Henderson PriceWaterhouseCoopers Legal LEGAL REPRESENTATIVES: DEFENDANT: Mr G Watson of counsel Solicitor: Ms S Thomas Sparke Helmore JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Thursday 15 March, 2001 Matter No IRC 6669 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MACBETH) v RED LEA CHICKENS PTY LTD (No. 2) Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT ( on penalty and costs) 1 On 27 October 2000 I gave judgment in the matter of a prosecution of Red Lea Chickens Pty Ltd by James Macbeth, an inspector of the WorkCover Authority of New South Wales, for a breach of s 15(1) of the Occupational Health and Safety Act 1983 occurring on 12 December 1997 at the defendant's premises in Flushcombe Road, Blacktown in the State: see [2000] NSWIRComm 203. I found the offence proven and subsequently set the matter down to hear submissions on penalty and costs on 7 February 2001. Having now heard the parties, this judgment deals with those issues. 2 The charge against the defendant under s 15(1) of the Occupational Health and Safety Act 1983 was that: it failed to ensure the health, safety and welfare of its employees, in particular, Christopher Peterson in that it failed to provide or maintain a system of work that was safe and without risks to health for the movement of motor vehicles and employees in the rear yard area of the premises. Particulars of the Defendant's failure to provide or maintain a safe system of work that was safe and without risks to health are as follows: a) Failure to put in place an adequate system to separate employees and motor vehicles using the rear yard area of the premises; b) Failure to adequately instruct employees as to the safe pedestrian usage of the rear yard area of the premises; c) Failure to adequately warn employees of the risks posed by motor vehicles to pedestrians using the rear yard area of the premises; d) Failure to adequately instruct drivers of vehicles entering or leaving the rear yard area of the premises to keep a lookout for pedestrians using the rear yard area; e) Failure to put in place an adequate system for controlling motor vehicle traffic at the premises. 3 Only particulars (a) and (e) were made out. However, given that these contained the substantive allegations as to failure on the part of the defendant, I found that the essential elements of the offence had been proved beyond reasonable doubt. 4 I deal firstly with a number of matters raised by Mr G Watson of counsel for the defendant which, he submitted, although I had taken into account in my earlier judgment, I should not take into account in sentencing the defendant. 5 Mr Watson referred me to a letter of 5 April 2000 tendered in the earlier proceedings. The letter was from the defendant's solicitors to the prosecutor's solicitors seeking further and better particulars. The particulars sought, and the prosecutor's answers given in a letter dated 12 April 2000 are set out in the following table: No. Particular Sought Response by Prosecution 1 Is it alleged that the defendant must prohibit employees from working in those areas of a workplace where vehicles may enter, including the rear yard of Red Lea Chickens Pty Ltd? No. 2 Is it alleged that the defendant must cordon off all areas in which vehicles must enter and leave the premises? No. 3 Is it alleged that the defendant must instruct all employees in general road safety? To the extent this was necessary to ensure the health, safety and welfare of employees using the rear yard area of the premises as pedestrians. 4 Is it alleged that the Occupational Health and Safety Act (1983) requires all employers to provide separate areas for the movement of goods between vehicles and the premises? No. 5 Is it alleged that the defendant is responsible for the obligations the driver of the vehicle owes to the public and other road users under the Road Transport (Safety and Traffic Management Act (1999)? No. 6 Do you suggest the provisions of the Occupational Health and Safety Act (1983) override the provisions contained in the Road Transport (Safety and Traffic Management) Act (1999)? No. It is not suggested that an employer is responsible for the obligations of motor vehicle drivers who enter the employer's premises. However, it is alleged that the defendant had the following obligations in respect of the provision or maintenance of a system of work that was safe and without risks to health for the movement of motor vehicles and employees in the rear yard area of the premises: (a) to put in place an adequate system to separate employees and motor vehicles using the rear yard area of the premises; 7 Do you suggest employers are responsible for the obligations of motor vehicle drivers who enter the employer's premises? (b) to adequately instruct employees as to the safe pedestrian usage of the rear yard area of the premises; (c) to adequately warn employees of the risks posed by motor vehicles to pedestrians using the rear yard area of the premises; (d) to adequately instruct drivers of vehicles entering or leaving the rear yard area of the premises to keep a lookout for pedestrians using the rear yard area; (e) to put in place an adequate system for controlling motor vehicle traffic at the premises. 8 Do you suggest employers are required to oversee all licensed motor vehicle drivers (sic) responsibilities and obligations by reason of the Occupational Health & Safety Act 1983? No. 9 Do you suggest the Occupational Health & Safety Act 1983 requires the defendant to install traffic lights, pedestrian crossings and/or employ a traffic warden to direct traffic on the defendant's premises? To the extent this was necessary to ensure the health, safety and welfare of employees using the rear yard area of the premises as pedestrians. 6 In developing his submission that I had taken matters into account that had been disavowed by the prosecution in the response to request for further and better particulars, Mr Watson referred to par 21 of the earlier judgment, which stated: There were no road markings or signs (other than the 15 km speed limit signs) on the roadways within the factory precincts to be observed by vehicles in relation to where they may drive or park; there were no pedestrian crossings at appropriate points at roadways; there were no lanes marked for exclusive pedestrian use in areas where vehicles and pedestrians might pass close to one another; there were no fences or other barricades preventing pedestrian access to areas used frequently by vehicles or to prevent pedestrians using roadways at points that might be considered unsafe; there was no system in place to ensure that large semi-trailers, of the type driven by Mr Farrugia, could reverse into a confined area without risk to the safety of pedestrians. It was Inspector Macbeth's evidence that "There didn't appear to be any form of procedure to prevent the contact of persons and vehicles on the premises". 7 Mr Watson submitted that the matters referred to in par 21 "were matters which were expressly disavowed by the prosecution or otherwise not the subject of evidence and in addition unable to be the subject of cross examination because they had been denied and they should be removed from your Honour's consideration of any criminality on the part of Red Lea". 8 As it can be seen, par 21 of the earlier judgment referred to the absence of: road markings; pedestrian crossings; lanes marked for exclusive pedestrian use; fences and barricades; a system to ensure large semi-trailers could reverse safely. I do not regard the response by the solicitors for the prosecution to the request for further and better particulars to have disavowed any of these elements of a safe system of work. For example, the answer to the defendant's question 9 was that to the extent it was necessary to ensure the health, safety and welfare of employees using the rear yard of the premises as pedestrians it was the prosecution's contention that the defendant should have installed pedestrian crossings or employed a traffic warden to direct traffic. The answer to the defendant's question 7 was a restatement of the particulars in the summons. I cannot see how it could be said that in providing further and better particulars that the prosecution could be taken to have indicated that it was no longer relying on the particulars in the summons. 9 It may be that the defendant's claim is that because the answer to question 4 was "no" that I could not have regard, for example, to the absence of lanes marked for exclusive pedestrian use. Question 4, like other questions in the request for further and better particulars is cast so widely that it is not surprising that the prosecution answered the way it did, but there can be no doubt, when the answers to the request are read as a whole and in the context of the summons, that the prosecution was conceding or disavowing nothing in providing the answers it did. 10 As to the evidence supporting the findings in par 21 of the earlier judgment, Inspector Macbeth said he did not observe any signs with respect to pedestrians, there were no traffic signs within the premises, he did not observe any system for separation of trucks and pedestrians and there did not appear to be any form of procedure to prevent the contact of persons and vehicles. A statement by Mr Velcich tendered in the proceedings indicated that the only traffic control system that was in place at the time of the accident was a 15 kilometre per hour speed limit. In answer to the question "What other systems were in place to prevent this type of accident occurring?" the answer was "There are signs in place to warn people of moving vehicles and moving pedestrians." (I note that the only signs Inspector Macbeth could find was a speed limit sign posted at the front gate of the premises and the same sign posted on a side gate. There were no signs directed at pedestrians). The evidence of Mr Dunshea, the chairperson of the defendant's occupational health and safety committee, was that in the area where the accident occurred he was not aware of any instructions as to where to walk and where not to walk and that, to his knowledge, there were no pedestrian crossing areas or marked walkways. It was evident from photographs and other evidence that there was no fence or barricade at or near where the accident occurred to prevent pedestrians using the roadway at that point. 11 The defence knew quite clearly what was being contended by the prosecution and evidence was presented in support of those contentions. The findings in par 21 of the earlier judgment were properly based on relevant evidence. 12 Mr Watson also referred to par 27 of the earlier judgment, which was in the following terms: From the photographs in evidence, the live bird and hopper areas are also used by forklifts. Despite the fact that it was necessary for the heavy vehicle to reverse under the hopper and, in order to do that on the day of the accident to reverse through a 90 degree angle at the corner of a building, there was no system in place to ensure this could be done safely without risks to pedestrians. Along one corner of the building where the semi trailer reverses into the hopper area there is a conveyor (see sketch). By the look of the conveyor in the photographs in evidence and the explanations provided by witnesses, a person could not easily pass under it or over it and it is an effective barrier to accessing the roadway entry directly in front of the hopper area. Along the other corner, however, there was nothing to warn an employee about taking care in crossing the roadway after exiting the Hanging Room or, more importantly, any physical barrier to stop an employee walking straight out onto the roadway at a corner of the building as Mr Peterson said he did (my emphasis) . Any view of the roadway to the left would be obstructed by the conveyor. Given the coming and going of a semi trailer at least twice a day, as well as forklifts, this corner would have to be considered, on any reasonable assessment, a risk to the safety of pedestrians using the area. Mr Farrugia's evidence was that he had seen, on his daily visits, pedestrians using the area where he was driving and in the immediate vicinity of the accident. 13 It was Mr Watson's contention that I should "excise" the findings I have highlighted in par 27 from any consideration of the criminality of the defendant because, firstly, at par 31 of the earlier judgment I had found that there was no causal connection between a failure to warn and the accident and secondly, because the prosecution had expressly disavowed the need for physical barriers to separate pedestrians and vehicles in its answers to the second and fourth requests for further and better particulars. 14 It is correct that in par 31 of the earlier judgment, I found that employees were not adequately warned of the risks posed by motor vehicles and it is also correct that I did not go on to find that there was a causal connection between the failure to warn and the risk of colliding with or being hit by a motor vehicle. However, as the language makes clear in par 27 of the earlier judgment, the key finding was not failure to warn - although that was certainly the case, but rather the absence of any physical barrier to stop a person walking straight out onto the roadway. Mr Watson submitted that the prosecution disavowed this. In my opinion that was simply not the case and in saying this I rely on my earlier treatment of the request for further and better particulars and the prosecution's response. Mr Watson appears to argue that the absence of physical barriers between pedestrians and vehicles was not put against the defendant. However, there was no obligation on the prosecution to list in infinite detail in its particulars the measures the defendant should have taken to ensure the safety of employees. The defendant is entitled to know those facts and circumstances which establish the essential elements of the offence alleged against the defendant: WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 128. The essential element of the offence alleged against the defendant in this matter was that it failed to provide or maintain a safe system of work that was safe and without risks to health in that it failed to put in place an adequate system to separate employees and motor vehicles using the rear yard area of the premises. The evidence of Inspector Macbeth was that there was no means of preventing the contact of persons and vehicles on the defendant's premises. This included, in my view, the absence of any physical barrier to stop an employee walking straight out onto the roadway at a corner of the building as Mr Peterson said he did. 15 Mr Watson also referred to par 33 of the earlier judgment, which stated: Particular (e) alleges a failure on the part of the defendant to put in place an adequate system for controlling motor vehicle traffic at the premises. The only system in place for controlling motor vehicle traffic according to the evidence was the two 15 kilometre per hour speed signs and the occasional warning issued by the watchman to drivers to slow down and look out for pedestrians. If the defendant had provided a system where reversing trucks were under the direction of a flagman, who also had the responsibility to keep a look out for pedestrians, I consider that the accident would have been avoided, especially if Mr Velcich and Mr Milnes were correct in their recollection about the direction from which Mr Peterson was coming when he collided with the truck (my emphasis ) . It was not impracticable or unreasonable in my view to have a person available to direct a truck that was required to reverse through a ninety degree angle into the hopper in circumstances where pedestrians might be present. It was foreseeable that if this was not done, someone could have been injured by the reversing vehicle. Consequently, Particular (e) is made out. 16 It was Mr Watson's submission that I should "excise" from any consideration of the defendant's criminality, the finding in par 33 that I have highlighted because it was not relied upon by the prosecution and "there was no evidence given about it by Inspector Macbeth". In fact, the absence of a flagman was relied upon by the prosecution. It was specifically referred to in the answer to question 9 in the request for further and better particulars. Mr I Taylor , counsel for the prosecution, also referred to the value of the presence of a flagman to direct the movement of heavy vehicles in his opening address. Having been put on notice of this contention it was open to Mr Watson to cross examine Inspector Macbeth about the matter if he chose to do so. 17 In my opinion, I was entitled to take into account those matters identified by Mr Watson in arriving at a guilty verdict and I am entitled to have regard to them in sentencing. 18 Mr Watson submitted that in determining any penalty, which he said should be "in the hundreds rather than thousands of dollars", I should take into account the following matters arising from the evidence relating to the earlier proceedings: (a) That it was Inspector Macbeth's evidence that Mr Peterson would have walked into the parked vehicle whether or not there was a sign in front of it saying "don't walk" and that it was also the Inspector's evidence that Mr Peterson walked into the truck because he was not paying attention to where he was going. (b) Inspector Macbeth had not issued an improvement notice to the defendant following the accident. (c) That it was Inspector Macbeth's opinion that the information against the defendant should not have been laid in the first place because it was a case that the prosecutor could not win. (d) That contrary to findings at par 20 of the earlier judgment there was a system in place for separating pedestrians and vehicles and it was that "People would walk on the side and vehicles would drive in the middle". (e) In the past, there had not been a similar accident to the one involving Mr Peterson. (f) A safety committee had been established at the defendant's premises which met on a regular basis to discuss safety matters; an occupational health and safety consultant was utilised by the defendant to assist from time to time with safety issues; where money needed to be spent on safety issues it was done without question. 19 I have taken the foregoing matters into account in determining penalty. I comment specifically on a number of the matters later in this judgment. 20 Mr Watson called further evidence going to the question of penalty. Mr Velcich, the defendant's general manager, gave evidence to the following effect: (a) The operation of the occupational health and safety committee. Mr Velcich's evidence in this regard went to the membership of the committee, the frequency of meetings, the keeping of minutes, the use of external consultants on occupational health and safety issues since 1988, the conduct of regular safety audits, the employment of a full time health and safety manager. It was Mr Velcich's evidence that the occupational health and safety consultant had never advised the defendant of the need for pedestrian crossings and that the safety committee had never raised this as an issue. Mr Velcich said that whenever the occupational health and safety manager recommended changes to safety practices the money was spent on the necessary alterations. (b) The defendant has some 600 employees at various locations and about 300 at the Blacktown site. (c) Mr Velcich had a personal commitment to health and safety at the workplace. (d) The defendant's business has suffered a reversal in recent times due to increased competition. 21 In cross examination, Mr Velcich stated that a consultant was in the process of conducting a safety audit that addressed issues raised in the earlier proceedings but this had not been finalised. Mr Velcich was not, therefore, in a position to say whether all of the safety deficiencies identified in my earlier judgment would be rectified and, if so, in what manner. 22 Mr Watson called further evidence from Mr Brett William Pretty. Mr Pretty's evidence went to conversations he had with Mr Peterson on several occasions. In the context of the accident and the injuries sustained by him, Mr Peterson was alleged to have said to Mr Pretty: "I was sneaking in a joint before work between the modules and walked out and woke up with two blokes holding me down not realising what had happened (sic) struggling." 23 Mr Watson submitted that it was "apparent that Mr Peterson through his own inadvertent use of marijuana walked into a truck …" and that "Mr Peterson was the manufacturer of his own accident. Whether that is through inadvertence only or inadvertence plus marijuana or marijuana induced inadvertence is significant because if a person has no regard for their own safety there is nothing their employer can do about it". 24 Mr Watson referred to the defendant's prior convictions of which there were only two: One in 1991 under s 27 of the Factories Shops and Industries Act which attracted a penalty of $1750 and one in 1996 under s 15(1) the Occupational Health and Safety Act 1983 which attracted a penalty of $3000. Mr Watson submitted that these convictions constituted a "minor record only". 25 Mr Watson submitted that in all the circumstances the case represented the very lowest level of criminality. 26 Mr Taylor helpfully provided written submissions in the matter. The written submissions were supplemented by oral submissions and they addressed: (a) The nature and quality of the offence. Mr Taylor rejected the defendant's contention that the offence was trivial. He submitted the breach was foreseeable, it involved obvious risks where appropriate measures could have, but had not, been taken and where the potential risk of injury was significant. (b) Objective factors to be taken into account including: the maximum penalty for the offence of $750,000; the need to give effect to the intention of the legislature that the existing sentencing patterns are to move in a sharply upward manner; the need for general and specific deterrence and here Mr Taylor referred to the defendant's failure to adopt a number of safety measures as at the date of the trial; the obvious risks involved in the offence; the foreseeability of the accident; the failure to take appropriate measures against what was an obvious risk when such measures were available and feasible; the gravity of the potential risk to safety; the requirement for a pro-active approach to safety; the defendant's criminal history. (c) The subjective circumstances that might be taken into account in mitigation including: cooperation with the authorities, which had occurred in this case; the steps taken by the defendant to remedy a defective system of work; the defendant's attitude to safety at the workplace. 27 Mr Taylor also submitted that: (a) The defendant had not shown contrition. (b) The evidence of Mr Pretty was hearsay and had to be balanced against the earlier denial of the alleged statement by Mr Peterson. Consideration 28 As Mr Taylor submitted, the primary factor to be considered when determining the appropriate sentence to impose is the objective seriousness of the offence charged. In Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 the Full Bench said at 474: However, in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the " true measure of penalty lies in the nature and quality of the offence" 29 The Full Bench in Lawrenson Diecasting went on to observe at 475: …… the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence. 30 At 476 the Full Bench said: As indicated in Dodd , the proper approach is to first consider the gravity of the offence viewed objectively: see also Gordon (1994) 71 A Crim R 459 at 468 R v Lett (unreported, Court of Criminal Appeal, Hunt CJ at CL, Sully and Levine JJ, 27 March 1995) at p5. The court must ensure that the allowance afforded for subjective factors does not produce a sentence which fails to take account of the objective gravity of the offence: see also Allpass (1993) 72 A Crim R 561 at 563; R v Murray (unreported, Court of Criminal Appeal, Newman and Barr JJ, 29 October 1997). In the case of an offence under s15(1) of the OH&S 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 where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT90/1214, 30 June 1992) at p9. 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: see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Limited , the Full Bench indicated (at p9), properly in our view, that "a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences. 31 Mr Watson , for the defendant, submitted that the offence in this matter was trivial and that a fine in the hundreds, not thousands of dollars was appropriate. His main grounds for this submission were that, effectively there was nothing the defendant could have done to prevent the accident occurring, and that Mr Peterson was not looking where he was going and that he would have collided with the truck whether it was moving or stationary. There is also the suggestion arising out of the evidence of Mr Pretty that Mr Peterson was under the influence of marijuana at the time of the accident. 32 I do not accept the submission that there was nothing the defendant could have done about the avoiding or removing the risk to safety. The evidence was that there was no effective system in place to separate employees and motor vehicles. In my earlier judgment I found that "….not only was there not an adequate system to separate employees and motor vehicles in the defendant's premises, including the rear yard but there was virtually no system at all". 33 In my opinion it was foreseeable that in circumstances where heavy, articulated vehicles used the roadways within the premises on a daily basis and travelled close to pedestrians, that in the absence of an adequate system to separate the two, the risk of injury was readily foreseeable. In my earlier judgment I said: The prospect of a person colliding with a vehicle at or near the corner in question was I believe readily foreseeable and it would have been a relatively straightforward matter for the defendant to take measures to guard against the risk of collision. 34 In Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29 the Full Bench said: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice-President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27: "Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (32 NSWLR at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and Work Cover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported, Hill J, CT95/1280, 12 April 1997 at 16)." 35 Paragraphs 27 and 33 of my earlier judgment described the obvious and foreseeable dangers associated with the area in which the incident occurred. That assessment confirms my opinion that the offence was relatively serious. It certainly was not trivial, attracting a fine of only a few hundred dollars. 36 I have had particular regard to the role of Mr Peterson in the accident. It was clear to me from the evidence that he was not keeping a proper lookout when he collided with the truck and to that extent contributed significantly to his own injuries. Whether he was drug-affected I do not know. I cannot regard Mr Pretty's evidence in this respect as any more than hearsay and, in any event, Mr Peterson denied that he had admitted to Mr Pretty that he had been "sneaking in a joint" prior to the accident. In assessing penalty, it is a question of what weight I should give to Mr Peterson's negligence or inadvertence. Whilst I am prepared to have regard to this in determining the defendant's culpability and to do so in favour of the defendant, I note what Bauer J said in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting (unreported, 13 April 1995, Matter No CT94/1037 at 17-18): …. The very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as foreseeable technical risks in industry. 37 I have also had regard to relevant subjective factors. These include the defendant's cooperation with the WorkCover Authority, the operation of the safety committee, Mr Velcich's attitude to safety at the workplace and the fact that some steps have been taken to remedy the defective system of work. I note that Mr Velcich is awaiting a report from an occupational health and safety consultant before taking any further remedial steps. I comment below on the lack of haste evident in rectifying the defects. Mr Taylor submitted that the defendant had not demonstrated contrition. I could not see much evidence of it either. 38 The defendant's record of offences can fairly be described as minor given the nature of the industry in which the defendant operates and its relatively large workforce. I have taken this into account. 39 As to the question of deterrence, a Full Bench of this Court said in Capral Aluminium at 60: 73 Although general deterrence and specific deterrence have differing purposes or aims, the varying aims of deterrence are particularly relevant in occupational health and safety prosecutions in light of the objects and terms of the Act. As Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 said: "the fundamental duty of the Court in this important area of public concern … [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." 74 We consider that the extract 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 be given weight of some substance in the sentencing process. 40 In considering the question of deterrence I have necessarily taken account of the defendant's good record. Nevertheless, I have detected in the defendant's attitude to the prosecution a sense of blamelessness and a reluctance to take swift measures to rectify what I consider to be a defective system of work. This may be influenced to some extent by the WorkCover Authority's failure to issue improvement notices and the need to await the consultant's report, but it should be clear to the defendant what my view is about the need to take remedial action. 41 As to the defendant's financial state, there was insufficient material before me to take this matter into account and in any event it was not strongly pressed by the defendant. 42 Having in mind the findings earlier made, together with the submissions and further evidence heard in this part of the proceedings as set out above, I have assessed the amount of penalty at $30,000. Orders 43 For the reasons set out above, I make the following orders - 1. The defendant is found guilty of the offence charged and a verdict is entered accordingly. The defendant is convicted and is fined an amount of $30,000, with a moiety thereof to the prosecutor. 2. The defendant is ordered to pay the prosecutor's costs of the proceedings in an amount as agreed or assessed. 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.