Industrial Relations Commission of New South Wales CITATION : WorkCover Authority (Inspector Boyle) v Graincorp Operations Limited [2003] NSWIRComm 122 PROSECUTOR: Inspector Warren Boyle PARTIES : DEFENDANT: Graincorp Operations Limited FILE NUMBER: IRC 516 of 2002 CORAM: Staunton J CATCHWORDS : Occupational health and safety - determination of penalty after offence found proved - inadequacy of risk assessment, training, procedural instructions, equipment and warnings - objective seriousness of the offence - foreseeability of risk - standard work instructions - general and specific deterrence - diverse and scattered nature of defendant's workplace - prior convictions - penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Crime (Sentencing Procedure) Act 1999 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales CASES CITED : Capral Aluminum Limited v WorkCover Authority of New South Wales [2000] 99IR 29 R v Thompson, R v Houlton [2000] NSWLR 49 at 383 HEARING DATES: 03/25/2003 DATE OF JUDGMENT: 03/25/2003 PROSECUTOR: Mr R Reitano of counsel SOLICITORS: Phillip Fox Lawyers LEGAL REPRESENTATIVES: DEFENDANT: Mr P M Skinner of counsel SOLICITORS: Goldbergs Solicitors JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J 25 March 2003 Matter No. IRC 516/2002 WorkCover Authority (Inspector Boyle) v Graincorp Operations Limited Prosecution under s15(1) of the Occupational Health and Safety Act 1983 EXTEMPORE JUDGMENT NSWIR Comm 122 1 The matter before me today concerns a prosecution brought against the defendant by Inspector Boyle on behalf of the WorkCover Authority of New South Wales citing a breach of section 15(1) of the Occupational Health and Safety Act 1983. 2 The defendant entered a plea of not guilty to the offence as charged. The matter has been heard before me and in a judgment delivered on 27 February last I found the offence proved. 3 Accordingly, the matter is before me today for the determination of penalty. 4 The offence before me cited a breach of section 15(1) of the Act specifically as identified by me in paragraphs [4] and [5 ] of the judgment delivered on 27 February last. It is necessary for me to clarify that in para [98] of that judgment I made findings in relation to the particulars of the offence as pleaded, specifying sub-clauses (a), (b) and (c). I should have specified sub-clauses (a), (b), (c) and (d). The omission of reference to sub-clause (d) in para [98] was an oversight on my part which I had not appreciated until drawn to my attention today. Reference to my findings as to the particulars pleaded in sub-clause (d) can be found in paras [66] and [70] of the judgment. I apologise to the parties for that oversight and express my regret at any confusion it has caused for the defendant. 5 In the substantive hearing before me, there was a statement of agreed facts in limited form tendered by consent, as well as additional documentation and photos bundled together as one exhibit and indexed as items 1 to 15. 6 In addition to the limited agreed facts and the documents and photographs before me, additional facts and circumstances were determined by me in the course of my judgment. 7 I do not propose to repeat them here, except to the extent that I consider it necessary to do so for the purposes of today's proceedings. 8 In addition to the documents I have already referred to, including my judgment, I have, for the purposes of today's proceedings, an affidavit of Mr Spencer Barton the Risk and Safety Adviser of the Western Division of the defendant. 9 Mr Barton's affidavit has a number of annexures to which I will refer as necessary. 10 I also have placed before me today marked as Exhibit S1, the defendant's prior convictions. Those convictions enliven s51A of the Act and it is not disputed that the maximum penalty for the offence before me is $825,000. 11 The nub of the evidence before me was the failure by the defendant to provide a safe system of work for the clearance of grain blockages having regard to the adequacy of training, instruction and supervision, equipment, risk assessment and warning. 12 That there was no specific training programme or authorised operational instructions for the clearance of grain blockages was not disputed by the defendant. That there was training and procedural instructions for a diverse range of employment related tasks and procedures as identified by the defendant was clear, but on any view they were inadequate having regard to the task specified. 13 The inadequacy, indeed absence, of any risk assessment for the task of clearing grain blockages, was a significant oversight by the defendant. It was not as though the task was one that was unknown to the defendant. The need to clear grain blockages occurred on a sufficiently regular basis, particularly following wet weather. It was a specific and known task that ought to have been properly risk assessed by the defendant. 14 As well, while there was some equipment provided to assist in the clearing of grain blockages, it was not immediately to hand on the day in question. The primary method of undertaking the task was, for the reasons I have detailed in the primary judgment, inadequate in all the circumstances. 15 Warnings given by the defendant to its employees about the dangers of working near moving grain were inadequate in the context of the task to be performed. Considerations: 16 As is well known in considering offences under the Act for the purpose of penalty, one needs to consider the objective seriousness of the offence before the Court. 17 That principle is well settled as expressed by a Full Bench of this Court in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales [1999] 90 IR 464 and particularly at page 476 where the Court stated: In the case of an offence under section 15(1) of the Occupational Health and Safety Act , there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence when there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT 90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the breach and the culpability of the defendant: Tyler v Sydney Electricity [1993] 47 IR 1. 18 On that latter point it must be said that Mr Andrew Steele is, on any view, lucky to be alive. 19 The issue of foreseeability of risk to safety in the circumstances before me requires some additional comment at this point. As my judgment found, grain blockages due to rain were not uncommon. 20 The method of clearing them was by contemporary work place standards, crude and ad hoc at best or, in other words, inadequate and insufficient. 21 Indeed, this crude and ad hoc primary method of clearing grain blockages created, in my view, a propensity to lead to unsafe, ineffective and short cut solutions such as occurred here in the matter before me. 22 The practice had developed amongst the four employees concerned of freeing grain blockages in the manner described by them that involved entering the silo. 23 It was not a work practice directly known to the defendant and was on any view inherently dangerous and foolhardy. Nevertheless, given that the external method of freeing grain involved a poking and pushing method upwards in the direction of the grate and hopper, it does not take too much of a quantum leap in one's mind to envisage that, sooner or later, an employee of the defendant would conclude that extra and better leverage of hard and crusted wheat would be able to be exerted by a downward poking and pushing movement through the grain. 24 The question would be, how best to do that? The answer that the employees of the defendant arrived at was to enter the silo with pieces of plastic conduit - the innovative shortcut and inherently dangerous procedure adopted by Mr Noonan, with its clear and foreseeable risk to safety for all concerned. 25 Add to that the known fact of the danger to employees of working around moving wheat that was well known to the defendant. 26 Overall I consider this matter to be an objectively serious one and I propose to determine the penalty on that basis. 27 It is relevant to the objective seriousness of an offence to also consider if there was readily and easily available remedial steps which could have been taken by the defendant before the accident to prevent the injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident as an indication of the extent to which foreseeability of injury was readily identified. 28 On this matter I refer in the first instance to paras [71] and [72] of my primary judgment, which I do not propose to repeat here, that outline the steps taken by the defendant immediately following the accident. 29 I also have regard to the evidence given before me by Mr Barton in these proceedings on penalty as well as the annexure material in his affidavit. That material identifies the review undertaken by the defendant after the accident to Mr Andrew Steele and the consequent amendments made to the relevant Standard Work Instructions - particularly the adding of a specific Rule as follows: Don't walk on moving grain or enter any hoppers or bins when the elevator or conveyor are operating. 30 There was also a new Standard Work Instruction that was specifically written post the accident to address the clearing of a blocked hopper. 31 The end result of the development of that new Standard Work Instruction is before me as annexure H to Mr Barton's affidavit filed for today's proceedings. 32 Mr Barton has also given evidence before me to the effect that emphasis is now given in induction training to the circumstances of this matter in order to bring matters such as this to the attention of employees within the context of occupational health and safety in the workplace. 33 In imposing a penalty in this matter, regard must be had to general and specific deterrence. That much is evident from the decision of a Full Bench of this Court in Capral Aluminum Limited v WorkCover Authority of New South Wales [2000] 99IR 29 more particularly paras [74] and [77]. It is clear that general and specific deterrence should be taken into account and are matters that should normally be given weight of some substance in the sentencing process unless precise reasons are given for their exclusion. 34 Para [77] of Capral is clearly applicable to the defendant before me in the application of specific deterrence as a factor to take into account in this matter. I say that noting particularly that the defendant remains an employer that conducts a large enterprise with inherent risks to safety. 35 As well, as is clear from evidence before me, the defendant's workplace is not centrally located. It is scattered and diverse across a large portion of the eastern seaboard states of Australia - particularly New South Wales and Victoria. 36 That fact in itself raises special problems and challenges for the defendant in maintaining, as it must, a pro-active approach to occupational health and safety. 37 While on one view it raises particular problems for the defendant as to how to go about doing that, it is a challenge that the defendant must meet. In other words, the defendant must take its workforce as it finds it and plan accordingly in relation to occupational health and safety. 38 It is simply not sufficient for the defendant, and I am not suggesting the defendant has put it this highly, to state that because of the scattered nature of its workforce, it has particular difficulties in getting information out to their employees, that may be seen as a mitigating feature in assessing the defendant's ability to meet its occupational health and safety obligations. It is simply a feature of the workplace that the defendant must meet. 39 Counsel for the defendants submits that the decision in R v Thompson, R v Houlton [2000] NSWLR 49 at 383 does not preclude, and I phrase his submission in this way, the defendant being entitled to a discount based on the utilitarian value of a plea of not guilty. That is, that the defendant can be given some discount in that there were certain agreed facts placed before the Court and this has a utilitarian value in the saving of court time. 40 I have to say that it is not a submission I can agree with. The decision of R v Thompson, R v Houlton is clearly premised in the first instance on a consideration of s22 of the Crime (Sentencing Procedure) Act 1999. 41 The preamble to sub-section 1 of that section states: In passing sentence for an offence on an offender who has pleaded guilty to the offence , a Court must take into account: [my emphasis] 42 It then sets out certain matters which do not require emphasis in this judgment. 43 By way of emphasis that it is the plea of guilty that attracts the discount to which R v Thompson, R v Houlton was dealing with, I refer also to paras [160] [161] and [162] of that judgment in which Spigelman CJ sets out the guidelines applicable to offences against State laws in relation to a plea of guilty. Sub-paragraph (i) of para [160] states: A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. 44 There is no plea of guilty before me. It was a plea of not guilty and was dealt with accordingly. 45 I do emphasise para [162 ] where Spigelman CJ stated: Insofar as existing sentencing practice has been to allow discounts for pleas of up to 35 per cent encompassing relevant matters , such a practice remains appropriate. [my emphasis] 46 I do propose, for the purpose of the matter before me, to take into account certain subjective features that have been placed before me relevant to the defendant. 47 The defendant has three prior convictions. Of those three prior convictions I am generally familiar with two of them in that they involve offences that I have dealt with. 48 The first offence that appears in relation to the defendant concerns an offence arising from the operation of an electronically powered tarpaulin rolling machine. It was an offence arising from the same type of machine that gave rise to the second offence concerning the defendant that was ultimately dealt with on appeal as a decision from her Honour Glynn J. 49 The third offence concerned an offence arising from the operation of a crane drive over hopper. 50 None of the prior offences, to the extent that I am aware of them, are of a nature and degree such as the offence before me. That is, as I have already expressed, Mr Andrew Steele is lucky to be alive. 51 In relation to the two offences that I am familiar with, while there was a definite risk of injury, the nature and extent of it was not on the same parallel as the one concerning Mr Andrew Steele. 52 What those prior convictions emphasise to me is the inherently dangerous nature of much of the defendant's workplace operations, particularly given the type of machinery, plant and equipment used and the nature of the work involved. 53 I have already emphasised the diverse and scattered nature of the defendant's workplaces. On a subjective basis I do accept that the defendant has significant training programmes and operational procedures in place covering a diversity of workplace circumstances and situations. 54 On that basis, I do accept that the defendant is not an employer who has either walked away or not confronted many aspects of its occupational health and safety responsibilities. 55 If I had a view, it is that the diverse and scattered nature of its workplace requires particular initiatives to ensure that safe work practices are conveyed to employees in a way that ensures that the message is directly received, understood and applied in practice. It should then be consistently re-emphasised by regular retraining. Those latter statements are relevant to considerations of specific deterrence as much as any subjective features having regard to the defendant's occupational health and training activities. 56 I do accept that in relation to this accident the defendant did co-operate with the WorkCover authorities. The defendant has also put in place active remedial steps designed to ensure that this matter should continue to receive emphasis as part of its occupational health and safety training and operational instructions. 57 I am satisfied that the defendant is perceived as both a responsible and involved organisation within the rural community. 58 Taking the subjective features into account that I have commented upon, I determine a discount of 10 per cent in the penalty that I propose. 59 Taking into account all the matters that I have referred to, I determine a notional penalty in this matter of $150,000. In applying the discount assessed, I determine a final penalty of $135,000. 60 Accordingly I make the following orders: · The defendant is convicted of the offence as charged · I impose a penalty in this matter of $135,000. · I allocate a moiety to the prosecution on the usual terms. · Costs as agreed. If agreement is unable to be reached, the matter may be re-listed within twenty one days from today to further consider the matter. 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.