Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Moore v Blacktown City Council [2003] NSWIRComm 362 APPELLANT WorkCover Authority of New South Wales PARTIES : RESPONDENT Blacktown City Council FILE NUMBER: IRC 2089 of 2002 CORAM: Walton J Vice-President; Boland J; Haylen J CATCHWORDS : Appeal - Guilty Finding - Sentencing - Serious Breach - CIM - Maximum Penalty - Prior Convictions - Deterrence - Subjective Features - Double Jeopardy - Fine. LEGISLATION CITED : Occupational Health and Safety Act 1983 s15 s47 s197 Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 CASES CITED : Veen v R (No 2) (1987) 164 CLR 465 WorkCover Authority (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 216 WorkCover Authority (Inspector Carmody) v Morrison (2002) 112 IR 312 HEARING DATES: 09/08/2003 EXTEMPORE JUDGMENT DATE : 09/08/2003 PROSECUTOR Mr R Reitano of counsel Solicitor Ms R Parmegiani Legal Services Branch, WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT Mr NJ Williams of senior counsel Solicitor Mr W Murphy Bartier Perry JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, VICE-PRESIDENT BOLAND J HAYLEN J 8 September 2003 Matter No. IRC 2089 of 2002 INSPECTOR JAMES MOORE v BLACKTOWN CITY COUNCIL Application by WorkCover Authority for leave to appeal and appeal against a decision of Chief Industrial Magistrate Miller given on 25.03.02 in CIM Matter No. 00012111/01/2. JUDGMENT Extempore [2003] NSWIRComm362 1 On 9 April 2003, the Full Court, on appeal, found the defendant guilty of a charge brought under s 16(1) of the Occupational Health and Safety Act, 1983. The facts are set out in detail in that judgment (see Inspector Moore v Blacktown City Council [2003] NSWIRComm 47. For the purposes of this judgment, dealing with the issue of the appropriate penalty to be imposed, it is sufficient to briefly describe the circumstances in which this breach took place. In late December 1998, the defendant, in preparation for activities associated with the Olympic Games, required the removal of concrete modules from the Aquilina Reserve. The defendant engaged Graham's Towing Service to perform this work because of its previous experience in performing similar tasks. A Mr Kirk, the principal of the contracting company, employed a Mr Geerdink, a 20 year old truck driver and operator, to perform this work at the Reserve. Mr Geerdink had been employed by Mr Kirk for approximately two months prior to the accident and, although he held himself out as being experienced in tilt truck operation, this was the first occasion on which he had to remove concrete modules by winching on to the tilt top tray of the truck. 2 Mr Geerdink was seriously injured when he was struck on the head by a steel chain which snapped as he was attempting to place a water tank measuring approximately three metres in diameter by three metres in height and weighing approximately eight tonnes on to the back of the tilt top truck. Mr Geerdink had attached a chain to two metal lugs located on either side of the base of the water tank. Mr Geerdink had backed his truck to a point where the base of the truck was below ground level. Mr Geerdink was injured when a lug on the side of the tank broke, causing the chain to whip and strike Mr Geerdink on the head. As a result of this accident Mr Geerdink received severe brain damage. 3 The Full Court found the following particulars of the breach to have been made out: The defendant had failed to: (a) provide and maintain a safe system of work to persons not in its employment for the removal of concrete modules at its place of work; (b) formulate a work method statement to address the risks to persons not in its employment in the removal of concrete modules at its place of work; (c) provide adequate instructions to persons not in its employment for the removal of concrete modules at its place of work; (d) provide adequate supervision to persons not in its employment for the removal of concrete modules in its place of work. 4 The Full Court noted that winching a wheeled vehicle on to the tilt top tray of a truck, which appeared to be what the truck with its winching apparatus was designed to do, was one thing but that an unsupervised, one person operation that involved winching an 8 tonne water tank on to the truck was another thing altogether. The capacity for the tank to become embedded and waterlogged and the possible effect of corrosion on the lugs were obvious concerns which were identified. The evidence was that the lugs were normally used for lifting the concrete tank by crane rather than the method adopted in this instance, that is, by dragging the modules by use of a chain. 5 Mr Johnson was the responsible officer from the defendant Council in relation to this task. Mr Kirk had said that he had advised the defendant that Mr Geerdink was new to the job and requested the defendant give him assistance. It was Mr Kirk's understanding that the driver would be supervised by employees of the defendant Council and he was assured by Mr Johnson that the driver would be all right because there were other people on the job who could assist. It was Mr Kirk's assumption that Mr Geerdink would be supervised. 6 Mr Johnson, however, insisted that he had not been told by Mr Kirk that Mr Geerdink was inexperienced and required supervision. Mr Johnson thought that the driver appeared to be competent when they began the task of moving the first module but Mr Johnson had noted that the tilt tray was a metre short at the base of the tank then to be moved, and he told the driver to move the truck closer. The Full Court noted that this should have rung alarm bells for Mr Johnson about the extent of Mr Geerdink's experience which was, in fact, non-existent in relation to the loading of concrete modules. It was always likely that the bottom of the module would dig into the dirt and become caught on the edge of the tilt tray as the module was dragged by the winch. However, Mr Johnson did not enquire of Mr Geerdink whether he had previous experience in loading concrete modules, and it did not appear that Mr Johnson explained why the tilt top tray had to be placed as close as possible and at a point lower than the bottom of the module in this operation. It also appeared that Mr Johnson had not satisfied himself as to the condition of the equipment that Mr Geerdink was to use. 7 It was also clear on the evidence that there was a difference between the toilet modules to be moved and the water tank. The toilet modules were sitting on a raised bed of sand and there was no indication of any trench having to be dug to ensure the bottom of the modules did not catch on the edge of the tilt top tray. The toilet modules were able to slide off the raised bed of sand on to the tilt top tray because there was sufficient clearance to avoid the bottom of the modules digging into the ground and catching the edge of the tilt top tray. 8 In relation to the concrete water tank, Mr Johnson had told Mr Geerdink to reverse his truck to the tank at a certain angle. The reason for this instruction was because, at that particular angle, the bottom of the tank was clear of the surrounding ground whereas, at the angle Mr Geerdink had reversed the truck, the bottom of the tank was below ground. There was no evidence that Mr Geerdink was told the reason why the truck had to be reversed at a given angle or that, if he reversed at a different angle he was to ensure the bottom of the tank cleared the edge of the tilt tray by digging a trench across the length of the diameter of the tank. It was apparent that, not knowing why he should reverse at a particular angle, Mr Geerdink simply reversed to an angle that suited him and then adopted the procedure he had followed in relation to the toilet module. The problem was that, unlike the toilet modules, the bottom of the water tank was below ground level. There was no other person present to advise the driver of this as he operated the winch controls. Consequently the tank became caught on the edge of the tilt top tray and caused the lug to snap off, releasing the chain which flew back and hit Mr Geerdink in the head. Mr Johnson had carried out an inspection of the concrete modules on the morning of the accident and had taken steps, including emptying the water tank, disconnecting the power and checking the lugs. He had also determined the angle at which Mr Geerdink's truck needed to be reversed into the tank so that the bottom of the tank was above the edge of the tilt top tray. In these circumstances, it could not be said that Mr Johnson made no assessment of risk or failed to formulate a plan to avoid risk, rather the plan was inadequate in its content and in the method by which it was carried out. If there had been an adequate risk assessment undertaken the risk to safety could have been avoided. 9 It was accepted that the accident would not have occurred if Mr Johnson had not left but had stayed and directly supervised the driver. The fact that supervision and assistance may be necessary was recognised by Mr Johnson informing the driver that he could approach other employees and contractors on the site if he needed assistance. The instruction given to the driver was inadequate when he was not told the reason for backing up at a particular angle: it was apparent that the rationale for doing so escaped him. Merely giving an instruction without informing a person why a particular method was being adopted raised the very real risk that the instruction would not be followed. The absence of supervision clearly created a risk to health and safety. 10 For the defendant, it is submitted that the operator appeared to the Council supervisor to be competent and to know what he was doing and had not been told that the driver was inexperienced. While unsupervised at the time of the accident, there had been supervision at the earlier stages of the operation and supervisory instruction had been given as to the method of work. In addition, a risk assessment was made and specific steps were taken to mitigate the risk. It was accepted that there were failures in the maintenance of the system, but there was, nevertheless, a substantial supervisory input into the work including both general and specific instructions, although those instructions had been found to be inadequate. 11 The defendant also submitted that a relevant consideration was the omissions of Mr Geerdink's employer, Graham's Towing Service. This employer was not prosecuted but it had failed to properly train the driver in the operation of the tilt tray truck and, as found by the Chief industrial Magistrate, had failed to inform Mr Johnson of the driver's inexperience. Further, it was submitted that it was Graham's Towing Service which should have provided the supervisor for the driver. Thus, these failures should be taken into account in mitigating the objective seriousness of the offence committed by the defendant. This submission in relation to supervision cannot be sustained. Mr Johnson made it clear that there were others available at the site to assist the driver and indeed Mr Johnson provided supervision at the early stages of the operation. More importantly the submissions seem to suggest that there should be an apportioning of culpability between the defendant and Graham's Towing Service. It may be accepted that in determining the culpability of the defendant it is necessary to consider the role played by other parties as part of the review of the total circumstances of the case: this consideration cannot, however, be used to reduce the culpability of the defendant in a proportional manner but is only a factor in determining the real culpability of the defendant. (Workcover Authority of New South Wales (Inspector Carmody) v Morrison (2002) 112 IR 312 at [53]; Workcover Authority (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 216 at [46] - [48].) 12 A consideration of all these matters, nevertheless, leads to the conclusion that this is a serious breach of the Act rather than a trivial or insignificant breach. This was a simple task with clearly identified hazards. It was entirely foreseeable that if the truck was not driven in at a certain angle and if the tray was not positioned in such a way as to avoid a module becoming caught below the lip of the tray, then the chains would be put under severe strain and would be likely to break. It was not a one person job. The defendant also failed to notice the clear difference between the toilet modules and the water tank; the toilet modules were sitting above ground level on a bed of sand thus making the winching task simpler. As has been described, that was not the situation in relation to the water tank. 13 The prosecutor has pointed out that the maximum penalty under the Act for a breach of s 15 is $550,000 for a corporation that is a first offender and $825,000 for a corporation that is a repeat offender. However, the Commission is constrained in this matter by reason of s197A(8), on the conviction of the defendant, to impose as a maximum penalty the penalty that the CIM could have imposed, namely $55,000 (see s47 of the Occupational Health and Safety Act). In this regard it is to be noted that the defendant has four prior convictions under the Act, dealt with between May 1985 and March 1995. In one case the conviction was dismissed before the CIM pursuant to the provisions of s556A of the Crimes Act; there were two fines of $1,500 imposed by the CIM; the last offence incurred a penalty of $10,000 in the Industrial Court for a breach of s15(1). The task before the Court is to consider whether in the light of all the circumstances of the defendant's operation, the offence in question is an uncharacteristic aberration or manifests a continuing attitude of disobedience to the law (Veen v R (No 2) (1987) 164 CLR 465 at 477-8). We accept the prosecutor's submission that the defendant's record, whilst undoubtedly of concern, must be viewed in the context of its size and the nature of its undertaking and as such cannot be described as bad record. The size of the fine must necessarily compel the defendant's attention to occupational health and safety. 14 In this case general deterrence is a factor to be considered and there is force in the prosecutor's submission that the imposition of a significant fine will operate as a deterrent to employers generally and will assist in compelling attention to occupational health and safety. In relation to specific deterrence, the defendant is a sizeable employer who has previously been in breach of the Act. The defendant continues to be engaged in a wide range of activities and thus the aspect of specific deterrence is a significant consideration. 15 As to the subjective features of this matter, we received a detailed submission from Mr Williams of Senior Counsel who appeared for the defendant. He pointed in particular to the extensive occupational health and safety system which the defendant operated at the time of the incident, the reforms to that system and the steps taken by the defendant after the accident. We consider that these matters warrant a discount in penalty. 16 We consider that these measures are given some practical application (and in that respect we are impressed) by the defendant making it a condition of employment for its managers that they adhere to and enforce occupational health and safety laws and policies. 17 We have also had regard to the principle of double jeopardy as a basis for mitigating penalty. In all of these circumstances, we consider that the appropriate penalty is $20,000. 18 We order: 1. The defendant is fined an amount of $20,000 with a moiety to the prosecutor. 2. The defendant shall pay the prosecutor's costs as agreed, or in default, in accordance with the Rules of the Court. 19 As to the further application for costs concerning the CIM proceedings, we make no order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.