Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Rodney Morrison v Phillip Edward Harris Hams [2002] NSWIRComm 216 PROSECUTOR Inspector Rodney Morrison PARTIES : Department of Mineral Resources DEFENDANT Phillip Edward Harris Hams FILE NUMBER: IRC 5414 of 2001 CORAM: Marks J CATCHWORDS : Occupational health and safety - Plea of guilty to breach of s 16(2), conceded serious offence, section 6 of the Fines Act applied - Penalty imposed. LEGISLATION CITED : Ocupational Health and Safety Act 1983 s 16(2) Fines Act s 6 HEARING DATES: 08/12/2002 DATE OF JUDGMENT: 09/10/2002 PROSECUTOR Mr David O'Neill of counsel Mr Blake Maguire Department of Mineral Resources LEGAL REPRESENTATIVES: DEFENDANT Mr Peteris Ginters of counsel SOLICITORS Taylor & Scott JUDGMENT: INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Tuesday 10 September 2002 Matter No IRC 5414 of 2001 INSPECTOR RODNEY MORRISON v PHILLIP EDWARD HARRIS HAMS Prosecution pursuant to s 16(2) of the Occupational Health and Safety Act 1983 JUDGMENT 1 The defendant Phillip Edward Harris Hams has been charged by Rodney Morrison of the Department of Mineral Resources with a breach of s 16(2) of the Occupational Health and Safety Act 1983 ("the Act"). The defendant pleaded guilty to the charge and these reasons for judgment deal only with the question of penalty. 2 An agreed statement of facts was filed in the proceedings and is in the following terms: "1. At all material times the Prosecutor was a person duly authorised by the Director General of the Department of Mineral Resources who is a prescribed officer pursuant to Section 48 of the Occupational Health & Safety Act, 1983 to institute proceedings in this matter. 2. On 20 August 1999 the defendant, Phillip Edwards Hams, was a self employed person who conducted an undertaking at the Fort Bourke Gypsum Mine ("Fort Bourke") located on a property known as "Darling Farms" situated approximately 35km northwest of Bourke. 3. On and around 20 August 1999, Contractors would, from time to time, attend the mine and load gypsum. 4. Gypsum was mined at Fort Bourke by removing a thin layer of topsoil to expose the deposit which was then extracted by means of earthmoving equipment and stockpiled. From the stockpiles the gypsum was loaded onto lorries or road trains of the Contractors. 1. It was the usual practice to use front-end loaders to load the gypsum onto the lorries or road trains. 2. At 2.30pm on Friday, 20 August 1999 the defendant travelled to the mine to prepare the gypsum for loading onto Contractors trucks. 3. On 20 August 1999, Jesse James Ladd ("Jesse") travelled with his father, Mr Joseph Ladd ("Mr Ladd"), to Fort Bourke. Jesse was two and a half years old. 4. It was known to the defendant that Mr Ladd and other Contractors took children to Fort Bourke on various occasions. The defendant estimated that Mr Ladd took his child Jesse with him about 25% of the time. 5. The defendant did not have in place any formal procedure in relation to visitors, adult or child, to the mine. 6. The defendant did not give any instruction to any of the contractors in relation to bringing visitors, adult or child, to the mine. 7. On 20 August, 1999, the defendant was aware that Jesse was at the mine with his father. 8. Whilst Mr Ladd loaded his truck, Jesse remained in the cabin of the truck. 9. After Mr Ladd completed loading his truck, he moved away from the area in which he had been loaded and commenced to tie down the tarpaulins on his truck. 10. At this time, Jesse hopped out of the cabin of the truck and started walking towards one of the other trucks. Mr Ladd called Jesse back, gave him a rope to keep him busy and then went around and tied the rope on the other side of his truck. 11. When Mr Ladd walked back around to the side Jesse had been on, he noticed Jesse was gone. 12. A search was then commenced and a short time thereafter, Jesse's body was found 9 metres behind the truck driven by Lawrence Collett. Jesse's body was against a 1.5 metre dirt wall. 13. The truck of Lawrence Collett had moved forward after the front trailer was loaded so that the dog trailer could then be loaded. 14. It had been the normal practice for trucks to be loaded with a loader, but on this day, they were loaded by an excavator. The use of the excavator meant that the trucks had to move forward after loading. This was in contrast to the previous practice whereby trucks remained in place and the loader would move to them. 15. No one observed what had happened to Jesse. 16. After Jesse was found he was taken directly to Bourke District Hospital. Life was pronounced extinct at 8.15pm, about 1 and 3/4 hours after Jesse had been found. 17. The medical report upon the examination of Jesse's body included the following findings: (i) Extensive contusion of the left lung with a haemorrhage throughout the parenchyma and extending into the bronchi; (ii) Area of disruption of the pleura at the hilum of the lung and lying adjacent to disruption of the soft tissue adjacent to the left lung hilum on the vertebral and apparently tearing the vena cava or pulmonary vein or both; (iii) Extensive left pleural haemorrhage; (iv) Moderate and patchy contusion of the right lung; (v) Multiple extensive tears of the liver capsule and parenchyma with extensive disruption of the liver; (vi) Small area of intraperitoneal haemorrhage. 18. In the same medical report J B Hobbs, a legally qualified medical practitioner, included under clinical history: "The young person's father states that he is not aware of how his son got fatally injured, but also stated that it was his son's habit to climb between the rear dual wheels of the trucks to gain access to the levy bank as he was not tall enough otherwise." 19. Dr Hobbs found the direct cause of death was: "Due to extensive contusion of the left lung with patchy contusion of the right lung with rupture of the veins adjacent to the left lung hilum producing extensive left pleural haemorrhage, 150mls." 20. Under other significant conditions contributing to the death, the doctor noted: "Multiple extensive tears of the liver with disruption of the liver parenchyma and a small amount of intraperitoneal haemorrhage. The appearances are consistent with a motor vehicle accident as quoted in the history." 21. It is alleged that on 20 August 1999 the defendant, a self employed person, contravened Section 16(2) of the Occupational Health & Safety Act 1983 in that he failed to ensure that persons not in his employment and in particular, Jesse James Ladd, were not exposed to risks to their health or safety arising from his undertaking at Fort Bourke Gypsum Mine. In particular, it is alleged that the defendant failed to: (a) Have in place any arrangement to cater for the safety of persons who came on to the land where the mine was situated; (b) Have in place any plan to cater for the safety of persons who came onto the land where the mine was situated; (c) Have in place any arrangement to cater for the safety of persons accompanying contractor truck drivers who came on to the land where the mine was situated; (d) Have in place any plan to cater for the safety of persons accompanying contractor truck drivers who came on to the land where the mine was situated; (e) Provide any safe place for persons, who were not doing any work at the mine, to wait, whilst at the mine; (f) Ensure that persons who were not doing any work at the mine were away from trucks which were working at the mine; (g) Ensure that persons who were not doing any work at the mine were away from trucks which were loading at the mine; (h) Give appropriate instruction to mine users in relation to bringing other people onto the land where the mine was situated; (i) Give appropriate instruction to mine users in relation to the presence of other persons at the mine; and (j) Give appropriate instructions to mine users as to the steps to be taken to protect the safety of other persons present at the mine whilst contractor truck drivers were loading." 3 The defendant gave evidence both in the form of an affidavit and orally. He is 56 and his principal background is in farming and grazing. He and his wife have resided in the Bourke area since the early 1970's. 4 The defendant knew the Ladd family well and are near neighbours. He and Mr Joe Ladd have assisted each other in connection with the operation of farming properties. The defendant knew the deceased child and was greatly upset by the accident. 5 Since the accident the defendant has put in place measures designed to eradicate the risk of any such accident occurring in the future. He has introduced a blanket policy of forbidding children to accompany truck drivers present on the site. The defendant has also prohibited loading other than in daylight hours and has erected a locked barrier at the grid on the road leading into the mine area. He has increased vigilance to ensure that he is aware of the presence of all persons on the site while mining or loading operations are being conducted. 6 After the accident the defendant attended a small mines safety school operated by the Department of Mineral Resources which was conducted both in Cobar and Nyngan. As a result of information conveyed both by the Department and the defendant other mine operators in the Bourke region have adopted similar safety procedures. 7 The defendant adduced evidence concerning his financial situation. His wife suffers from a continuing and chronic medical condition and the costs associated with her necessity to attend Adelaide for treatment have impacted on the family's finances. The defendant gave evidence concerning the operation of the gypsum mine, a share farming arrangement and other ancillary activities which he undertakes. He also gave evidence concerning his assets generally. I am satisfied on the basis of the evidence that the defendant has limited income and minimal assets. His income has been adversely affected by the drought which prevails in the Bourke district and there are no indications when the defendant's circumstances are likely to be alleviated. Furthermore, the viability of the gypsum mine itself has been affected by another mine which has opened up recently in the Bourke area. 8 There was tendered into evidence three character references; from the Acting General Manager of the Council of the Shire of Bourke, Mr Peter Black OAM MLA and Mr Peter Whitbread, a local Stock and Station and Real Estate Agent. This material demonstrates that the defendant has made a significant contribution to communal life in the Bourke region over many years. He has served two terms as a councillor with Bourke Shire Council and has also been a delegate to a number of bodies including the Namoi Valley Electricity Board, the Federal Inland Development Committee and the Bourke Enterprise Development Association. He was also involved in many other activities in the area and is highly regarded for his commitment and his endeavours. 9 The task of the Court in assessing an appropriate penalty in all the circumstances has been facilitated by the objective and relatively uncontroversial manner in which Mr David O'Neil counsel for the prosecutor and Mr Peteris Ginters counsel for the defendant formulated their submissions. 10 It is first necessary to consider the objective seriousness of the offence. The defendant conceded that the offence was serious. Prima facie, any situation which resulted in a 2½ year old child walking around a site where material was being loaded onto trucks and those trucks were required to move is fraught with danger. Like many situations where tragic accidents occur, more than one person might be blamed for what happened. 11 These proceedings are confined to consideration of the obligations which are imposed by the Act on, among others, self employed persons who conduct operations. There is an absolute obligation not to expose anyone to risks to health or safety arising from the undertaking. This applies no matter where the operation is conducted and no matter what size of operation. The Act applies throughout New South Wales to all undertakings, large or small and whether in far flung regional areas or within metropolitan areas. The impact on victims and the cost to the community is the same no matter where the accident occurs and no matter the size of the operation. There is no place in the community for any attitude along the lines of the once pervasive vernacular "she'll be alright mate" in any operation where there is a risk to the health and safety of employees and others. 12 It is a great pity that the death of Jesse Ladd, aged 2½, has been the catalyst for the focus of attention to safety measures, all of which are obvious, in the Bourke district. Hopefully this tragic death will force others who conduct undertakings in New South Wales to exercise vigilance and foresight and to conduct themselves in the proactive manner necessary to minimise risks to health and safety and to ensure compliance with obligations created by the Act. 13 In assessing penalty the Court is required to take into account a number of subjective features which, in the circumstances of these proceedings, are uncontroversial: 1. The defendant has expressed contrition and remorse for what has occurred. 2. The defendant cooperated fully with investigations in connection with the accident. 3. The defendant has put in place measures designed to ensure compliance with the Act in future. 4. The defendant pleaded guilty at the earliest opportunity. 5. The defendant's good character. 14 The Court is required to consider and take into account the means of the defendant when fixing the amount of the penalty. Section 6 of the Fines Act is in the following terms: "In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount." 15 I am satisfied on the evidence given in the proceedings that the Court has been given information regarding the means of the defendant "as is reasonably and practicably available". I am further satisfied on the basis of that evidence that the defendant has minimal means only to pay any penalty having regard to his income, potential income and his assets and liabilities. I shall have regard to this fact in determining penalty. 16 In normal circumstances, even allowing for the subjective matters raised by way of mitigation which I have summarised above I would be minded to impose a substantial penalty on the defendant. This would not only reflect the objective seriousness of the offence but also the need to deter others from avoiding their obligations under the Act. However the defendant is entitled to have the penalty which would otherwise be applied reduced by reason of section 6 of the Fines Act. 17 The maximum penalty which applies to this defendant is the sum of $55,000. Having regard to all of the matters to which I have referred and, in particular, s 6 of the Fines Act an appropriate penalty is $10,000. However the defendant is entitled to a further discount by reason of the early plea of guilty which I assess at 25 percent. This will result in a fine of $7,500 being imposed. I should emphasise that the penalty of $7,500 is not intended to and cannot possibly reflect the fact that a 2½ year old child tragically lost his life in the accident. 18 It is also necessary to deal with costs. The prosecutor issued proceedings concurrently with these proceedings against Fort Bourke Gypsum Pty Ltd, the shares in which are owned jointly by the defendant and his wife. The prosecutor after considering all of the evidence determined that it did not have sufficient evidence to proceed against that company. It was because the concurrent proceedings were commenced against the company that both sets of proceedings were brought before this Court rather than the Chief Industrial Magistrate's Court. Mr Ginters submitted the defendant should not be ordered to pay the costs of the prosecution in these proceedings. I reject this submission. It would only be appropriate to deprive the prosecution of costs in circumstances where a defendant has pleaded guilty in an exceptional case. However, the defendant should not be penalised for the additional costs which were incurred by the prosecution by reason of the commencement of proceedings in this Court rather than the Chief Industrial Magistrate's Court. The prosecution has constructively accepted that any order for costs in its favour should be quantified as if the proceedings had been commenced before the Chief Industrial Magistrate. 19 The prosecution has sought a moiety of the penalty which is not opposed by the defendant. ORDERS 20 I make the following orders: 1. The defendant is found guilty of the offence with which he was charged in the originating order and is convicted accordingly. 2. The defendant is to pay a fine of $7,500 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor quantified as if the proceedings had been commenced before the Chief Industrial Magistrate, and as assessed by this Court in default of agreement. ___________________________ 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.