Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Templeton v Pavese Citrus Pty Ltd (No 2) [2004] NSWIRComm 406 PROSECUTOR Inspector Amanda Templeton PARTIES : DEFENDANT Pavese Citrus Pty Ltd FILE NUMBER: IRC 5297 of 2003 CORAM: Staff J CATCHWORDS : Occupational health & safety - Prosecution under s 8 of Occupational Health & Safety Act 2000 - Employee found under rear near side wheel of tractor - Employee sustained fatal injuries - Plea of not guilty - Conviction recorded - Penalty imposed LEGISLATION CITED : Crimes Sentencing Procedure Act 1999 Occupational Health & Safety Act 2000 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Templeton v Pavese Citrus Pty Ltd [2004] NSWIRComm 322 Inspector Tyler v Sydney Electricity (1993) 47 IR 1 CASES CITED : Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 464 Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority (NSW) v Wonar Pty Ltd (unreported, Industrial Court, NSW, No 1214 of 1990, Fisher CJ, Glynn and Cullen JJ, 30 June 1992 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) (2000) 99 IR 163 HEARING DATES: 12/20/2004 EXTEMPORE JUDGMENT DATE : 12/20/2004 PROSECUTOR Mr R Reitano of counsel Solicitor: Ms L Barnes WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr G Underwood of counsel Agent: Mr K Heasman Ken Heasman Solicitor Holmes Keenan & Turnell JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Staff J 20 December 2004 Matter No IRC 5297 of 2003 INSPECTOR AMANDA TEMPLETON V PAVESE CITRUS PTY LTD Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 EX TEMPORE JUDGMENT [2004] NSWIRComm 406 1. In Inspector Templeton v Pavese Citrus Pty Ltd [2004] NSWIRComm 322, the defendant was found guilty of an offence under s 8(1) of the Occupational Health & Safety Act 2000. 2. The defendant operated and managed a citrus orchard at Farm 225, Murray Road, Yoogali in the State of New South Wales. 3. The incident giving rise to the breach was described in the judgment at [2] in the following terms: On Sunday 23 September 2001, Mr Tavua was employed on a casual basis by the defendant as a fruit harvester. At approximately 1.00 pm, Mr Tavua drove the defendant's tractor, which was pulling two trailers containing five full bins of harvested fruit in an easterly direction between rows 3 and 4 of the fruit trees. Mr Tavua was found under the rear nearside wheel of the tractor, which had stopped at the end of rows 3 and 4. Mr Tavua suffered fatal injuries. 4. The charge and particulars were that the defendant: DID FAIL To ensure the health, safety and welfare at work of all of the employees of the Defendant, in particular Peni Tavua, contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: a) The Defendant, at all material times, operated a citrus orchard at Farm 225, Murray Road, Yoogali, in the State of New South Wales ("the premises"). b) The Defendant, at all material times, was the trustee for the Pavese Family Trust (ABN 42 788 473 125). c) The Defendant, at all material times, employed a number of workers, including Peni Tavua ("Tavua"), to work at the premises. d) The Defendant, at all material times, provided a Massey Ferguson 35 tractor (the "tractor"), for use by employees of the Defendant at work at the premises, in particular Tavua, to tow bins of oranges in trailers attached to the tractor along the rows of fruit trees in the orchard and to the packing shed. e) The Defendant failed to ensure the health, safety and welfare at work of all of the employees of the Defendant, in particular Tavua, by:- i) failing to ensure that the premises (and/or the means of access to or exit from the premises) were safe and without risks to health, in that it failed to ensure that vehicles were not parked in the orchard, in particular at the end of the rows of fruit trees, such that the parked vehicle posed a risk to the safety of an employee driving a tractor along a row of fruit trees or out from in between the rows of fruit trees; ii) failing to adequately instruct or supervise employees to ensure that they did not park vehicles in the orchard, in particular at the end of rows of fruit trees, such that the vehicle posed a risk to the safety of an employee driving a tractor along a row of fruit trees or out from in between the rows of fruit trees; iii) failing to provide or maintain a system of work in relation to the carting of fruit at the premises by use of the tractor and trailers that was safe and without risks to health; iv) failing to ensure that any plant, in particular the tractor, provided for use by the employees at work at the premises was safe and without risks to health, by failing to ensure that a safety belt or other restraining harness device was fitted to the tractor for the use of the operator. f) On 23 September 2001, at the premises, Peni Tavua was fatally injured. 5. In finding the offence proven, the Court said at [102]: It was inevitable, as I have already observed, that an employee driving a tractor would confront a car at the end of a row of fruit trees and that such a car would pose a risk to the safety of the employee driving the tractor. It is this deficiency in the system of parking implemented by the defendant that caused the detriment to safety and a breach of the Act. By failing to provide and maintain a system of work that vehicles parked in the orchard did not pose a risk to the safety of an employee driving a tractor and carting fruit the employer failed to ensure the safety of its employees. 6. I note that paragraph (iv) of the particulars was not made out. 7. This judgment deals with the question of penalty and costs. 8. The primary consideration in sentencing is the gravity of the offence viewed objectively: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at (77 - 81). Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) (2000) 99 IR 163. The maximum penalty in this case is $550,000. 9. Matters that are relevant to a consideration of the objective seriousness of the offence are the nature and quality of the offence and whether it involved obvious or foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, the practical and potential consequences flowing from the Commission of the offence including whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety. The Court is also required, in fixing any penalty, to consider the need for both general and specific deterrence: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 at [71]-[80]. 10. A secondary consideration is the subjective features of the offence, that is, the facts concerning the offender. This will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified. The penalty to be imposed must generally be such as to compel attention to occupational health and safety generally so as to ensure that workers whilst at work will not be exposed to risks to their health and safety: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388; Capral Aluminium. 11. In sentencing an offender the Court is also required by s 21A of the Crimes (Sentencing Procedure) Act 1999 to take into account prescribed aggravating and mitigating factors where they are relevant and known to the Court. 12. In considering the nature and quality of the offence, there are a number of relevant matters to be taken into account that are referred to in the earlier judgment and in the submissions of the parties. Firstly, Mr Tavua was an experienced worker who had performed the task of driving the tractor towing bins of fruit on many occasions and had also attended the induction training programme used by the defendant known as the Hazard Analysis Critical Control Point Quality Assurance System. The induction training included showing employees how to pick fruit and where to park vehicles and in Mr Tavua's case, how to drive the tractor. The defendant provided ongoing induction training to its employees. 13. It must be said in the defendant's favour that this is not a case of an employer completely ignoring a known risk to safety. Mr Pavese, a director of the defendant, who was involved in the day to day running of the farm, clearly recollected giving instructions to Mr Tavua regarding where to park his car and his evidence was that he had no reason to assume he would not follow these instructions. He maintained that he did all that he could to provide a safe system of work by telling the pickers that they could park their cars parallel to the rows in which they were picking. Whilst the Court rejected these contentions, it is apparent that the defendant had, as part of what was otherwise a very good approach to occupational health and safety at the farm, actively considered the question of safety and was conscious of risks to safety. The defendant failed, however, to ensure the safety of Mr Tavua by allowing cars to be parked at the end of a row of fruit trees. 14. The defendant contended that it was open to the Court to fix a penalty at the low end of the range because the defendant's failures should be seen as an aberration when account was taken of the overall circumstances of the offence, the defendant's good record and its comprehensive policies and detailed occupational health and safety practices in place at the farm. In addition, medical reports were tendered which demonstrated Mr Paul Pavese was suffering from depression and Mr Deni Pavese, who resigned as a Director of the company in August 2004, from a form of Parkinson's disease. Mr G Underwood of counsel, who appeared for the defendant, submitted that the personal suffering of Mr Paul Pavese was almost a penalty in itself and reflected his remorse. Mr R Reitano, counsel for the prosecutor, correctly in my view, pointed out that remorse was normally associated with contrition exhibited in a plea of guilty. 15. There is some force in the overall submissions of the defendant, however, there are other considerations that tell against taking too lenient a view about the offence committed by the defendant. These are set out at [99]-[101] of the earlier judgment as follows: [99] The evidence discloses that there were four cars parked in the orchard on 23 September 2001 and only one of those cars was parked in accordance with the manual or oral instructions provided by Mr Pavese to employees. I find beyond reasonable doubt that Mr Tavua's car was initially parked some four to five rows to the left of rows 3 and 4 with Ms Toga's car in the headland. It was subsequently moved to the headland at the Murray Road end of rows 3 and 4 partially blocking the entrance to those rows. [100] In order to meet the requirements of s 8 of the Act, the system of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them. The majority in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 219 observed: In order to ensure such a system was safe as required by s.15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case. [101] In this matter, there was no instructions given to Ms Toga as to where she should park her vehicle. The evidence establishes that Mr Tavua initially parked in the headland some three to four rows from where picking was being conducted prior to subsequently parking his vehicle at the end of the rows where picking was being conducted. The charge against the defendant did not merely allege a failure by the respondent to provide and maintain a safe system for the parking of vehicles (in the sense of the particular method adopted at the site). True it is that the charges included a failure to provide a safe system of work in this respect but it is the failure of the employer's system to ensure that a safe work method was adopted for the parking of cars that is the subject of prosecution and, in particular, the failure of that system to ensure a method of work was adopted that prevented risks being posed by parked vehicles. 16. Further, at paragraph 109 of the earlier judgment, the Court said: [109] ... In my view, as was found in Genner , it is not possible to infer that Mr Tavua simply disregarded the dangers created when he parked his car at the end of the row of fruit trees. The rational conclusion from the evidence was that Mr Tavua did not fully envisage the risks created by parking his vehicle where he did. This was by reason of a failure to adequately train him in relation to the safe operation of the orchard. Although I accept that Mr Pavese instructed Mr Tavua each and every year in respect of safe car parking, it was the inadequacy in the instructions that were given that led to Mr Tavua not fully envisaging the risks created by not parking parallel to the row of fruit trees that was being harvested. There was therefore a failure to adequately instruct or supervise employees to ensure that employees did not park vehicles in the orchard at the end of rows that posed a risk to an employee driving a tractor. I find this particular of the charge for the reasons given, is made out on the requisite standard of proof. 17. The defendant was aware of the risk of cars being parked in the orchard not parallel to the row of fruit that was being picked. However, the defendant took no steps to assess the risks that might be associated in permitting cars to be parked at the end of rows of fruit trees. 18. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting (at 476); Capral Aluminium (at [81]); Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. In the circumstances where the defendant was aware of the danger of cars being parked at the end of rows of fruit trees, it was foreseeable, in my opinion, that a risk to safety might arise. The change of instructions regarding parking in the orchard after Mr Tavua's accident pointed to the inadequacy of what existed prior to the accident. Since the judgment of this Court, there has been a further amendment to the policy of parking in the orchard. Vehicles must not be parked on the headland and fruit pickers are not to be engaged unless trained by the defendant. 19. In Kembla Coal and Coke, Walton J, Vice-President stated at 27: ... Whilst the response by the defendants after the accidents was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendants to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (at 21-22). 20. The additional instruction that vehicles must be parked parallel to the rows of fruit, never at the end of the rows, illustrates the inadequacy of the system prior to the accident. 21. The seriousness of an injury does not dictate the size of any penalty but it does demonstrate the seriousness of the detriment to safety occasioned by the offence: WorkCover Authority (NSW) v Wonar Pty Ltd (unreported, Industrial Court, NSW, No 1214 of 1990, Fisher CJ, Glynn and Cullen JJ, 30 June 1992 (at 9); Lawrenson Diecasting Pty Ltd; Tyler v Sydney Electricity (1993) 47 IR 1 at 5. Mr Tavua suffered fatal injuries as a result of the accident. 22. In Morrison v Powercoal Pty Ltd (2003) 130 IR 364, the Full Bench Wright J President, Walton J Vice-President, Boland J stated at [33]: [33] Thus, it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case. 23. In Capral Aluminium at [74], the Full Bench observed that both general and specific deterrence are matters "which should normally be given weight of some substance in the sentencing process". In relation to general deterrence, the Full Bench added at [75] that "the need for general deterrence in relation to serious offences under the Act is undeniable". Mr Pavese's evidence was that there were at least 250 farms of acreages between 22 and 50 acres in the Griffith to Leeton area. Failure to ensure safe systems of work on these farms will continue to be a cause of injuries to workers in New South Wales and, consequently, prosecutions under the Act. It is appropriate that I include in the penalty an element for general deterrence. 24. As to specific deterrence, the defendant has no prior record of convictions. It's occupational health and safety policies and practice are of a high standard as evidenced by the HACCP system. In addition, Mr Pavese took immediate and appropriate steps to avoid a re-occurrence of the accident by introducing a "Farm Hand and Fruit Pickers Training Declaration" which all employees were required to sign. The Declaration has subsequently been amended in light of the Court's judgment. I do not propose to include in any penalty, therefore, a significant element for specific deterrence. 25. Mr Underwood tendered a financial report for the year ending 30 June 2004 for the Pavese Family Trust. It showed for the financial year 2003, the gross profit from trading was $382,482.94, with a net profit of $82,711.53. 26. In the 2004 financial year, the gross profit was $171,586.04, with a net loss of $86,613.61. 27. Mr Underwood sought to explain that part of the reason for the loss in 2004 was the stress associated with the prosecution which had caused Mr Paul Pavese to suffer depression. 28. However, there was no allowance made in the 2004 accounts for a contingent liability in respect of this prosecution. 29. Walton J Vice-President discussed the approach that should be adopted in considering the financial means of the defendant in mitigation of penalty in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284. His Honour said at [83]: ... I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50): "It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201". 30. His Honour noted that this approach was subsequently adopted in Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 where the Full Bench of this Court stated [81]-[82]: "... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76). However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210, Wright J, President observed: '... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty... ... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence ....' '' 31. Having regard to the aforementioned authorities regarding the relevance of the financial means of a defendant, I shall reduce the amount of fine which would have otherwise been ordered to be paid by the defendant due to the defendant's financial position. 32. There are a number of relevant subjective considerations. Firstly, the defendant has no prior convictions. Secondly, as I have already indicated, I consider the defendant's policies and practices relating to occupational health and safety to be of a high standard. It was evident that the defendant gives high priority to workplace safety. The prosecutor acknowledged that the contravention in that light was not blatant or wanton. 33. I have taken into the account the following mitigating factors prescribed by s 21A(3) of the Crimes (Sentencing Procedure) Act: (f) the offender was a person of good character; (g) the offender is unlikely to re-offend; (h) the offender has good prospects of rehabilitation. 34. Given the objective seriousness of the offence, I consider an appropriate penalty in this case to be $80,000. This amount is to be reduced by 10% having regard to the relevant subjective factors, resulting in a fine of $72,000. ORDERS The Court makes the following orders: 1. A verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $72,000 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, as determined 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.