Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW (Insp Wolf) v BHP Transport Pty Ltd & Anor [2000] NSWIRComm 34 PROSECUTOR: PARTIES : WorkCover Authority of NSW (Insp Wolf) DEFENDANT: BHP Transport Pty Ltd and BHP Steel (AIS) Pty Ltd FILE NUMBER: IRC821&822 of 1999 CORAM: Kavanagh J CATCHWORDS : OHS - s16 - penalty - employer's knowledge of risk - priority for maintenance work when company has heavy equipment infrasructure - employer prefers contractor's advice to that of skilled employee LEGISLATION CITED : Occupational Health and Safety Act 1983 s16 WorkCover Authority of NSW (Insp Hannah) v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, 30.6.92, CT1214 of 1990) CASES CITED : WorkCover Authority of NSW (Insp Callaghan) v Saunders Constructions Pty Ltd (unreported, Maidment J, CT93/1062, 26.11.93) Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Insp James Swee Ch'ng) (1999) 90 IR 464 Haynes v James Glass & Aluminium Pty Ltd (unreported, Fisher CJ, CT91/772-775, 20 May 1994) HEARING DATES: 03/01/2000 DATE OF JUDGMENT: 03/30/2000 PROSECUTOR: Mr P. Punch, Solicitor SOLICITORS: Carroll & O'Dea PROSECUTOR: Mr P. Punch, Solicitor LEGAL REPRESENTATIVES: SOLICITORS: Carroll & O'Dea DEFENDANT: Mr J.A. Timbs, QC SOLICITORS: Ms L. Constantine Blake Dawson Waldron JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Thurs 30 March 2000 IRC821 of 1999 WORKCOVER AUTHORITY OF NSW (INSP WOLF) v BHP TRANSPORT PTY LTD Prosecution under s16(1) of the Occupational Health and Safety Act 1983 IRC822 of 1999 WORKCOVER AUTHORITY OF NSW (INSP WOLF) v BHP STEEL (AIS) PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 The prosecutor was represented before the court by Mr P Punch, solicitor, and the defendant by Mr J Timbs QC. Mr Punch made application before the court that the prosecution in summons No IRC99/822 be withdrawn. The court granted leave. 2 As to summons No IRC99/821, this is a charge under the provisions of s16(1) of the Occupational Health and Safety Act, 1983 (the Act) in that BHP Transport Pty Limited did fail to ensure against the risk to safety of persons not in its employ. It is agreed between the parties that BHP Transport was an employer and that the allegations arose from the conduct of its undertaking while they were at its place of work. To this charge the defendant at the hearing entered a plea of guilty. 3 Two workers suffered injury on 8 March 1997 - Mr Brooks and Mr Galea - when a crane known as a Coal Loader was travelling along its rails when one of the drive bogeys seized causing the crane to skewer around and the K brace of the crane, which was corroded, to fracture. The fracture of this section of the crane led to the crane's portal legs spreading and buckling and the crane collapsing towards the ship. The shuttle conveyor of the crane (the upper part of the crane) hit the wharf side hatch cover of the ship and fell on it and the boom of the crane collapsed and fell on to the harbour side hatch cover. To avoid the boom, Mr Brooks jumped down on to the deck of the ship. He had been performing work in and around the crane and as a result of his jump he suffered injuries. Mr Galea was the operator of the crane and in the cabin at the control panels. He suffered abrasions and injury to his back and shoulder. 4 An agreed statement of facts was tendered and relevantly reads: 3. At all material times, BHP Transport was responsible for the operation, management and maintenance of a coal and coke loader identified as B1729 (" the Crane ") which was owned by BHP Steel (AIS) Pty Limited (ACN 000 019 625) (" BHP Steel "). 4. BHP Steel was at all material times the employer of Mr Jeffrey Brooks (" Mr Brooks ") and Mr Angelo Galea (" Mr Galea "). Mr Brooks had been employed by BHP Steel in the position of Bulk Berth Operator, New Entrant, since around September 1996. Mr Galea had been employed by BHP Steel in the position of Bulk Berth Operator, Grade 2, since around 1963. 5. At all material times, Mr Brooks and Mr Galea were directed and supervised by BHP Transport. 6. On 8 March 1997, Mr Brooks and Mr Galea were performing work for BHP Transport in connection with the loading of bulk material onto a ship, the "Cementco", at Number 1 Discharge Berth, Inner Harbour, Port Kembla. They were performing work in and around the Crane. 7. Mr Galea was the operator of the Crane and was located in the cabin of the Crane at the control panels. Mr Brooks was located on the ship's hatch and was guiding the Crane. 8. On 8 March 1997, BHP Transport was an employer and the operation described in paragraphs 6 and 7 was its undertaking. 9. On 8 March 1997, Number 1 Discharge Berth, Inner Harbour, Port Kembla was BHP Transport's place of work. 10. On 8 March 1997, while Mr Galea and Mr Brooks were performing work in and around the Crane, one of the drive bogies seized whilst long travelling west, which placed a skewing force on the structure. This in turn caused a section of the Crane, known as a "K Brace", which was corroded, to fracture. The fracturing led to the portal legs spreading and buckling and the Crane moved toward the ship. The shuttle conveyor of the Crane hit the wharf side hatch cover of the ship and fell on it. The boom of the Crane collapsed and fell onto the harbour side hatch cover. To avoid the boom, Mr Brooks jumped down onto the deck of the ship. A diagram of the Crane is annexed (see Annexure "A"). A diagram of the K Brace is annexed (see Annexure "B"). 11. As a consequence of the events described in paragraph 10 above, Mr Brooks suffered spiral fractures to heel bones and ankles of both feet and Mr Galea suffered an abrasion of the left forearm and aches and pains in his back and shoulder. 12. On 8, 10, 17 and 21 March 1997, the Prosecutor conducted an inspection of the site where the Crane was located. Twenty six photographs of the Crane were taken (see Annexure "C") and a Factual Inspection Report compiled (see Annexure "D"). 13. BHP Steel operates a Crane Inspection Department which inspected cranes owned by BHP Steel and other BHP companies on a regular basis in accordance with relevant provisions of the Construction Safety Act 1912 (NSW), the applicable Australian Standard and BHP Steel policy. 14. On 16 October 1992, the Crane Inspection Department of BHP Steel had provided reports advising as to the presence of corrosion in the K brace of the Crane and its structural surrounds and assigned a priority 3 for repairs (the system of priorities is expanded upon below). 15. Subsequent to October 1992, Crane Inspection Reports provided by BHP Steel to BHP Transport dated 28 June 1993, 4 November 1993, 9 June 1994, 15 May 1995, 3 November 1995 and 29 April 1996 all identified the presence of corrosion in the K Brace and recommended remedial action. 16. In November 1995, the priority for repairs to the K brace and its structural surrounds was re-assessed to a priority 2. General structural and mechanical repairs of a higher priority were being undertaken on the Crane on an on-going basis. 17. At the Port Kembla Steelworks, the Crane Inspection Department used a system of prioritisation to prioritise repairs to be undertaken to plant and equipment. Repairs were given a priority from 1 to 5. The meaning attributed to a "priority 1" through to a "priority 5" are as follows: (a) Priority 1: Severe safety hazard or impending breakdown. Maintenance personnel notified immediately. Crane usually placed out of service until item repaired. (b) Priority 2: Could easily deteriorate to severe condition or in direct conflict with current WorkCover regulations, Australian or BHP Safety Standards. Item should be repaired as immediately as possible. (c) Priority 3: Items requires attention to maintain safe operating condition of equipment. This should be carried out as soon as possible as planned preventative maintenance. (d) Priority 4: Low level hazard or potential problem should be monitored if not repaired, so as to prevent the items severity level increasing. (e) Priority 5: Noted for record purposes only. Repair not generally viable. 18. On or about 10 July 1994, Mark John Cracknell ("Mr Cracknell"), Structural Maintenance Co-ordinator employed by BHP Steel recommended in a written memorandum to Mr Harry Sinko ("Mr Sinko"), Superintendent of Shipping for BHP Transport, that the Crane needed to be taken out of service for structural assessment and repairs. A copy of Mr Cracknell's memorandum to Mr Sinko is annexed at Annexure "E". Discussions took place between Mr Cracknell and Mr Sinko about a maintenance program. 19. In late 1994 BHP Steel commissioned a report from corrosion engineers, Rust PPK Pty Limited ("Rust PPK") in relation to plant in the Raw Materials Handling Department and Associated Shipping Facilities, including the Crane. This report was provided to BHP Steel in April 1995. Rust PPK recommended that certain repairs to various items of plant and equipment in the Raw Materials Handling Department and Shipping Department be conducted. Rust PPK indicated that the coal loader frame (structure) was in reasonable condition but had little protection to corrosive attack, and without provision of a paint system, its lifespan could be reduced to less than five years. No specific comment was made by Rust PPK in relation to the K Brace. 20. BHP Transport had recommendations from Rust PPK and internal BHP sources and devised a repair program for items of plant in the Shipping Department facility, including the Crane. 21. It was decided to effect repairs to the Crane in two stages. A document which lists the repairs and replacements which were required is annexed (see Annexure "F"). The K Brace was scheduled to be repaired in stage two based on its identified priority of repair (see reference to "Replace Sea Side Support Brace W/O 345021" in Annexure F). 22. The first stage of repairs was conducted in the financial year 1995 to 1996. The repairs effected during stage one included the highest priority repairs, such as repairs to the shuttle and 29C conveyor, installation of a cover to protect rope, replacement of shuttle floor plating, replacement of electrical cable rack, replacement of cross travel rails, replacement of cable carrier beam, rollers and cable holders, and replacement of the telescope. The cost of these stage one repairs and replacements was in the order of $600,000. 23. The second stage of repairs were planned to be conducted in the financial year 1996 to 1997. The repairs which were planned to take place included the K Brace. 24. In around January 1997, a problem was identified with the bearings on a long travel bogie (of which there are four) and a method was devised of removal and repair of the long travel bogie. The repair method required that the K Brace be replaced prior to removal of the bogie. The replacement of the K Brace was proposed because it was observed to be corroded. Accordingly, a fabrication order for a new K Brace was placed. The replacement of the K Brace was scheduled for the end of March 1997. 25. Due to the problem with the long travel bogie, the bogie seized which resulted in fracturing to the K Brace which had been weakened due to corrosion, and the Crane fell onto the Cementco. 26. It is accepted that on 8 March 1997, BHP Transport breached section 16(1) of the Act, in that, being an employer it failed to ensure that persons not in its employ (namely Mr Galea and Mr Brooks) were not exposed to risks to their health or safety arising from the conduct of its undertaking (being the operations of the Crane) at its place of work (being Number 1 Discharge Berth, Inner Harbour, Port Kembla), in particular by failing to ensure that the K brace was properly maintained for operations, either by undertaking the necessary remedial work or taking the Crane out of service until such work had been completed. 5 This history suggests from 16 October 1992 BHP Transport knew of the presence of the corrosion in the K brace of the Coal Loader but only assigned it a priority 3 for repairs (see para 17 of Agreed Statements of Facts for meaning of priority 3). 6 The defendant company, who entered a plea of guilty to the summons, invites the court to consider the circumstances in which the corrosion problems of the Coal Loader were incorporated into the priority listing for maintenance of BHP Transport. While the defendant acknowledges errors of judgment were made, such errors of judgment it submits should not be perceived by the court as neglect of a known or perceived danger. As was said by the Full Industrial Court in WorkCover Authority of NSW (Insp Hannah) v Wonar Pty Ltd (unreported decision, Fisher CJ, Glynn and Cullen JJ, 30.6.92, CT1214 of 1990 at 9-10): There was a known and perceived danger, unchecked, and left in place. The seriousness of these errors is not open to denial and the case must be assessed on that basis. 7 The court has an obligation to assess the nature and quality of this offence and in assessing its gravity must take into consideration matters put before it, on behalf of the defendant, by Mr Timbs. Mr Timbs submits while it is clear from the record of the investigators' reports there was a knowledge that the K brace was corroded, this knowledge does not of itself prove the neglect of a known danger. In a large organisation operating with significant infra-structure he submits it is appropriate that priority be given to repairs and those tasks be time tabled. He submits what occurred in the case was a proper consideration as to priority maintenance. He acknowledges retrospectively the priority rating for the repair of the K brace area of the Coal Loader can be perceived as an error of judgment. 8 Further, relying on a report in April 1995 of an independent assessor called Rust PPK, the company was assured as to the coke and coal loader: 6.6 Coke and Coal Loader: The loader and conveyor supplying it from the gullet and coke stockpiles appear to be in poor condition due to the obvious corrosion products resulting from handling ammonium sulphate. Whilst there are areas of severe corrosion which need rectification, and there is virtually no protective coating left in many areas, the damage is generally not as serious as it appears. The exception to this comment is the supporting structure to conveyor 28C which is badly corroded and needs urgent replacement. This conveyor also supports a travelling tripper. The best outcome for this sequence of equipment would be to find an alternative method of handling ammonium sulphate. 7.1 GENERAL . . . It became immediately apparent that the principal area of concern was the amount of corrosion of the structural steel work. It is our understanding that, apart from the shipping coke sequence, all machines and sequences are operating at a through put rate at or below the design capacity. The only other exception to this statement would be in areas of spillage from the conveyor where material is allowed to accumulate to the extent that loads on the structure exceed those allowed in the design. Firstly, there are a number of items identified in the list below which threaten the short term stability or adequacy of the item mentioned or operator safety. We recommend that these items be repaired as a matter of priority. ... All of these remaining items should be considered as repairs to be performed within the next five years to ensure the long term structural adequacy of this equipment. . . . 7.3.6 Shipping Coke Sequence Again the majority of problems noted with this sequence are associated with the corrosion of the structural steel work. In the case of this sequence, however, the corrosion products consists of a large number of extremely thin sheet. General corrosion penetrates only a relatively short depth into the parent metal. It would appear this type of corrosion is indicative of the materials conveyed with this sequence and their corrosive attack on both the paint system and the underlying steel work rather than the usual gradual deterioration of the paint layers and some subsequent steel work. It is obvious this corrosion is due to the ammonium sulphate infrequently loaded out to shipping through this system and its subsequent spillage at transfer points. Generally conveyors ... and the coke loader frame itself are in reasonable condition, but have little protection to corrosive attack and without provision of a paint system there life span could be reduced to less than five years. At the absolute minimum after instalment of an effective paint system, the transfer points of this sequence should be carefully studied to ensure the amount of spillage is minimised ... particularly the aggressive ammonium sulphate. 9 Mr Timbs submits that an examination of the Crane Inspectors' reports performed regularly as safety inspections from 1992 to 1997 indicates the maintenance of the Coal Loader began as a priority 3 recommendation and by February 1997, moved to a priority 2. In February 1992 the loader was identified, as before, through the Inspections conducted by the Crane Inspector as a "Structural Item" in the following terms: "Extensive corrosion in bottom flanges of horizontal and diagonal channels at spreaders between legs, land and water sides of crane, 75% reduction in thickness at some points." Throughout the years of the inspection reports, this 75% reduction in thickness was noted however on one occasion the estimate was changed to an 80% reduction. 10 Mr Timb's submission, standing alone, is persuasive. However, there is one significant report that lies outside these Inspection Reports from the safety inspections. It is the report of Mr Mark Cracknell identified as a Structural Maintenance Co-ordinator. His report is headed: "To enhance the structural, mechanical and electrical integrity of the coal and coke loaders". It is addressed to Mr Harry Sinko and dated 10 July 1994. Mr Sinko was Superintendent of Shipping for BHP Transport. 11 The Court's view is this is a very significant memorandum especially considering its place in the chronology of events. By July 1994 Mr Cracknell, had received a number of the inspectors' reports which identified structural deficiencies in the coal loader. The evidence reveals he received a report in 1992, two reports in 1993, and a report in 1994. He clearly determined to address the problems identified with the coal loader. He received a crane engineer's report on 9 June 1994 and his memorandum is dated 10 July 1994. The memorandum states he collected the various reports from the crane inspectors and those of the "corrosion research branches" of Manufacturing Services which indicated the crane had deteriorated badly in some specific areas and that repair work needed to be completed in areas "where severe corrosion is evident". 12 He noted: "the most serious corrosion problems appear to be confined to localised areas. This rapid corrosion has been promoted in the main by poor cleaning techniques or no cleaning techniques at all." 13 He recommended a maintenance programme and that the programme should take into account considerations for a blasting operation, painting operation and scaffolding. He identified the need for a structural contract, a maintenance contract, an electrical contract and he examined management responsibilities in relation to the state of the coal loader such as the method and time frame for performing the work. As the loading of sulphate of ammonium was identified as rapidly accelerating the corrosion process, he recommended the involvement of the design department's structural engineer. He stated he did not recommend independent assessment. For repairs he noted the unit should be taken out of service and alternative loading provisions for coal loading in the down period had to be made as well as alternative berth access. 14 This was a most comprehensive report. It reflects proudly on the professionalism of Mr Cracknell. He addressed this memorandum to Mr Sinko as Superintendent of Shipping for BHP Transport. Mr Cracknell gave a warning in relation to outside involvement as follows: . . . independent assessment of the unit ... is not recommended; as per my experience although they go into fine detail outlining the findings and recommendations the company will pay some exorbitant fee for having consulted them. 15 Despite this warning and Mr Cracknell's recommendations the repairs and maintenance of the coal loader were delayed. A general assessment was being conducted in late 1994 of all BHP Transport's infra-structure and equipment leading to a report in April 1995 from Rust PPK. A decision was made to await this Report's recommendations. This report argued against Mr Cracknell's recommendation for immediacy, suggesting that the process should be a five-year process and of the Coal Loader said: while there are areas of severe corrosion which need rectification and there is virtually no protective coating left in many areas, the damage is generally not as serious as it appears. 16 Once again we see a major company expending significant amounts of money to take an overview of its operation and ignoring the recommendations of its skilled personnel at the workface. Such a situation has been examined by this Court before in WorkCover Authority v SRA (unreported, 97/7032-7036, 21 May 1999). 17 In large organisations the opinion of the skilled worker on site must be given weight by management. BHP puts the general proposition that it made an error of judgment in the priority programme it determined and adopted involving the maintenance of this loader along with other identified maintenance needs. It did so on the recommendation of a qualified "overview" report where the coal loader was only one of eight major infrastructure items overviewed. However, there is no evidence that in determining the priority for repair work to the coal loader BHP Transport gave any weight to the very wise recommendations of Mr Cracknell. 18 Before May 1995 the Coal Loader had a level 3 priority. After Mr Cracknell's report and the April 1995 report of Rust PPK, BHP business records reveal in May 1995 it was moved to a number 2 priority. In April 1996 it was given a number 2 priority again and in February 1997 it still retained a number 2 priority. This company was warned from October 1992 (from documents there is a suggestion even dating back to May 1991) of problems with the maintenance of the coal loader and by 1996 the identified K bracing corrosion had still not been given attention. 19 Mr Sinko, in a statement to the WorkCover Authority, says they discussed Mr Cracknell's report and agreed to shut the crane down to identify the work, and in the course of that operation he noted Rust PPK were on site. He noted there was another accident in November 1994 which diverted attention away from the routine tasks. 20 Mr Lorence also gave a statement as Principal Maintenance Co-ordinator, Shipping Department. He said: In September 1995 I was given a report by Harry Sinko highlighting items that required work carried out. Harry said to me to co-ordinate a work campaign and I handed that over to Mr Cracknell as a project. He was to prioritise the work that had to be done. The first repair of about $400,000 (sic $600,000) was done in March 1996. The second stage, which included the K bracing, was to be done in March 1997. 21 The first work was therefore done almost a year after Mr Cracknell's report and the K brace work not scheduled for nearly 3 years after his report. 22 Documents reveal further by February 1997 the need to replace the bogeys was identified and Engineering had suggested as part of that job the K bracing should be replaced. Mr Sinclair of BHP Engineering, who is a mechanical engineer, was asked in a WorkCover interview: Q. Were you aware of any problems associated with the coal loader ... A. There had been a report done on it and we got involved with that installation ... Mal Davies rang me and wanted to replace the wheels. He wanted to jack it up and wanted advice. I had a look at the bogeys with him. We noticed the K brace corrosion and suggested replacement before we attempted to jack it up. I mentioned to Mark Cracknell and he told me he was about to let the contract. 23 This opinion makes clear an engineer, who sighted the corrosion, was troubled by the stresses the process of "jacking up" would place on the K brace. Further the chain of events causing the accident began when a bogey jammed. The bogeys, this evidence reveals, had also been identified as a problem. 24 Mr Cracknell's report identified the exact problem which caused this accident in July 1994. The programming priority given to this identified maintenance task was not to be completed until March 1997. The accident intervened. Mr Sinclair on inspection noted the K brace corrosion and the bogey defect. The defendant company was on notice as to both defects. 25 I am not persuaded, notwithstanding the submissions of counsel for the defendant, that this accident should be perceived as an unfortunate intervening incident in a properly controlled and conducted maintenance programme. 26 What is before the Court is evidence that since at least 1992 but especially after 1994 there were serious problems with the loader that were not properly addressed to a standard of care such as to ensure no risk to the safety of persons at a BHP Transport's place of work. I find the breach a serious one. 27 The Court gives consideration to the subjective features of the offence. I am assured both injured workers were informed of their rights, and a rehabilitation programme was designed for each. An immediate repair was conducted to the coal loader but one is reminded of the words of Maidment J in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported, CT93/1062, 26.11.93) are apposite: Commendable though it is to introduce appropriate occupational health and safety measures after the event it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments . . . . 28 I am assured, through counsel, of the defendant's remorse in relation to this series of events. Although the record indicates some time lapsed between the filing of the summons and the entering of the plea of guilty on the hearing date, under the circumstances where there was a considerable endeavour put into the agreed statement of facts prior to entering the plea, I accept the plea of guilty was entered as soon as possible. 29 There is no doubt that measures taken by the defendant to prevent a similar occurrence persuades the Court of the defendant's present commitment to health and safety at its work place. The defendant is engaged in a heavy industry. It has been operating since 1986 and there is only one recorded conviction and that was in February 1999 under the provisions of s 16(1) before the Chief Industrial Magistrate. The penalty for this breach was $10,000. One can weigh the level of seriousness of the breach taking into consideration the penalty. 30 However, in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 commented: . . ., 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'. . . . It has observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to the consideration of the nature and quality of the offence. The Full Bench notes that: The proper approach is first to consider the gravity of the offence viewed objectively. The Full Bench approved the passage from the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Ltd (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. 31 There is now evidence that repair and maintenance considerations have been upgraded which upgrading involves considerable expense to major infrastructure items in the operation of this business. 32 The defendant company before the accident had a system in place for safety checks. Further, it called in experts in relation to particular problems. Part of the requirement of the major external experts' review in 1995 was to conduct a full structural inspection of plant and equipment and make the associated recommendations. Safety aspects were being given consideration at the time of this accident. I am assured, and the prosecution concedes, that following the incident BHP Transport, the defendant, in consultation with engineering experts, undertook a complete reassessment of the critical structural aspects of all cranes in the shipping department. This assessment itself cost $300,000. 33 BHP Transport has since undertaken a repair programme addressing all structural items of plant and equipment. The cost met so far has been approximately $12 million. Associated costs, for example delaying ship to wharf, are estimated at approximately $6 million. Significantly, I note since the accident there has been 30% reduction in all injury frequency rates. These statistics are indicative of a more acute awareness as to safety on its worksite. 34 The shipping department has also included in all its employees' position statements the following: This position has the authority to stop work in its own area of responsibility to avoid safety, environmental and quality problems. This situation is to be reported immediately to your supervisor. 35 This statement, of course, does not take into account the problem identified here as the priority given within a company's maintenance programme. In the case before the court, a supervisor acted on warnings from the workforce. The warnings as to safety on site expressed by a company's employees who are skilled operators must be given value by a company, especially when such warnings address the maintenance of operating equipment. This case exposes a modern corporate culture which recognises independent, expert advice as more valuable than the wise words of long term, experienced and skilled employees. This accident is a terrible reflection and commentary on this practice. An employee's opinion must be given value and recognition by the employer. It is to be regretted in these circumstances the employee's opinion was not the persuasive opinion. 36 I find the defendant guilty to the charge. 37 I fine the defendant $100,000 with a moiety to the WorkCover Authority ********* 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.