Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Evans v Graincorp Operations Limited [2003] NSWIRComm 153 PROSECUTOR Inspector Ken Evans PARTIES : DEFENDANT Graincorp Operations Limited FILE NUMBER: IRC6451 of 2001 CORAM: Peterson J CATCHWORDS : Occupational health and safety - Truck driver - Injured by contact between truck tray and overhead electric wires - Assessment of penalty - Penalty imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 WorkCover Authority of NSW (Inspector Dawson) v Waugh & Thora Sawmilling Pty Limited (1995) 59 IR 89 R v Thompson, R v Houlton (2000) 115 A Crim R 104 CASES CITED : R v Ellis (1986) 6 NSWLR 603 Inspector Batty v Graincorp Operations Limited [2001] NSWIRComm 127 Inspector Batty v Graincorp Operations Limited [2002] NSWIRComm 49 Regina v Carter [2001] NSWCCA 245 HEARING DATES: 04/26/2002; 09/27/2002 DATE OF JUDGMENT: 05/16/2003 PROSECUTOR Ms P F Lowson of counsel SOLICITOR Moray & Agnew SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr J P Phillips of counsel and P M Skinner of counsel SOLICITOR Grahame Goldberg Partners SYDNEY. JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 16 MAY 2003 Matter No. IRC6451 of 2001 INSPECTOR KEN EVANS v GRAINCORP OPERATIONS LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983. JUDGMENT 1 On 16 November 1999 the driver of a prime mover and tipping trailer was waiting in a queue of vehicles for a load of grain at the Kikoria Grain Silo 80 kilometres west of West Wyalong. The tipping trailer measured 11 metres in length with 2 metre high sides and, when hydraulically elevated, reached a height of approximately 9 metres. The driver decided to lift his empty trailer to ensure that it was free of canola, which had been the last product carted. Before operating the lifting mechanism, he looked at electrical wires which were overhead. He then activated the lift and walked to the rear of the trailer to open the back door to see if the residual canola was going to come out. As he was leaning on the door of the trailer he received an electric shock. The tray had been lifted into contact with overhead high tension power lines carrying 22,000 volts. The driver sustained third degree burns to both heels and to his left palm and was unable to work for a period in excess of seven days immediately following the incident. 2 The prosecutor, Inspector Ken Evans, is an Inspector duly appointed under the Occupational Health and Safety Act 2000 and empowered under s106 of that Act to institute these proceedings which are brought against the defendant, Graincorp Operations Limited ('Graincorp') under s16(1) of the Occupational Health and Safety Act 1983 ('the Act'). 3 Graincorp has entered a plea of guilty which is accepted as being an early plea. Graincorp has two prior convictions at the date of hearing of this charge: one by the Chief Industrial Magistrate on 8 September 1999 in which a penalty of $2,500 was imposed and another on 8 June 2001 when, on appeal, a penalty of $65,000 was imposed. 4 The matter proceeded upon the basis of an agreed statement of facts, and photographic evidence of the site at which the accident occurred, both at the time of the accident and, subsequently, to identify physical changes made to the environs including the erection of signage and also identifying devices upon the power lines. In the defence case reliance was placed upon the affidavit of John Edwin Taber, the Risk and Safety Adviser for the Central Division of Graincorp. 5 The agreed statement of facts is in the following terms: (i) The informant is an inspector duly appointed under Division 1 of Part 5 of the Occupational Health & Safety Act 2000 and empowered under section 106 of the said Act to institute proceedings in the within matter. (ii) At all material times the Defendant, Graincorp Operations Limited [ACN 003 875 401] was a company duly incorporated having its registered office at Level 10, 51 Druitt Street, Sydney in the state of New South Wales. (iii) The defendant was at all material times an employer. (iv) At all material times the defendant operated a grain silo complex as part of its business undertaking at the Kikoria Grain Silo 80 kms west of West Wyalong. (v) Pursuant to the defendant's business undertaking it had prior to 16 November 1999 entered into an arrangement with Western Milling with respect to grain stored by it at the workplace. (vi) At all material times on and prior to 16 November 1999 Western Milling had engaged the services of Pattersons Transport Pty Limited ('the employer') to cart grain from the defendant's workplace. (vii) At all material times on 16 November 1999 Jason Patterson ("the worker") was employed by Pattersons Transport Pty Limited as a truck driver. (viii) On 16 November 1999 the worker in the course of his employment had driven to the defendant's workplace to collect a load of wheat. (ix) The worker was at all material times on 16 November 1999 driving and in control of a Ford Louieville Prime Mover L9000 with registration number NV57DQ to which was attached a trailer, registration K27862, fitted with a tipper unit owned by the employer. At all material times the Prime Mover and trailer had attached to it a triaxle aluminium tipper body which was hydraulically operated. The trailer measured approximately 11 metres in length and its sides were 2 meters high. The trailer, when the tipper unit was activated was capable of reaching a height of 9 metres when elevated at its maximum. (x) At all material times between the point of entry to the workplace and the silos from which the wheat was to be loaded there were three overhead power lines under which it was necessary for trucks to pass in order to get to the loading hopper. (xi) The aforesaid power lines were situated at a height approximately 8 metres above the roadway entrance to the grain silo and at a point in a queue of trucks awaiting loading some 5 truck lengths back from the entrance to the silo area, that being a distance of approximately 30 metres from the hopper. (xii) At all material times the overhead power lines were active and carrying 22,000 volts of electricity. (xiii) At all material times there was no sign which indicated the clearance height of the power lines. (xiv) At all material times on 16 November 1999 the worker was queuing in line with other vehicles awaiting his turn to load grain into his vehicle. The worker's vehicle had carried canola in the tipper tray on its previous load. Prior to loading the wheat the worker, in attempting to clear the residue of canola from his tipper at about 9.30am on 16 November 1999, then operated the lifting mechanism and walked to the back of his tip tray to open the back door to see if all the residue grain was going to come out. As he was leaning on the door of the trailer the tray of the tipper came into contact with the power lines and, as a consequence of doing so, caused the worker to receive an electric shock. (xv) The worker sustained injuries as a consequence of the electric shock, namely third degree burns to both heels and to his left palm, and was unable to work for a period of in excess of seven days immediately following the incident. (xvi) On 16 November 1999 the defendant, contrary to section 16(1) of the Occupational Health & Safety Act, 1983 failed to ensure that persons not in its employment, and in particular, the worker, were not exposed to risks to their health and safety arising from the conduct of its undertaking, to wit the operation of the workplace which involved the entry of delivery trucks to collect grain therefrom, during the course of which undertaking a tip truck driven and operated by the worker elevated its tipper tray which, in doing so, contacted overhead power lines by reason that the defendant: (a) Failed to warn of the existence and precise position of the power lines. (b) Failed to provide advance warning signs highlighting the existence of the power lines well before vehicles reached the risk area directly beneath them. (c) Failed to provide proper supervision of the activities of such vehicles entering the workplace to ensure that activities of such vehicles did not involve a risk from the overhead power lines. (d) Failed to provide appropriate warning signs immediately underneath the power lines warning drivers not to elevate their tip trucks in that position because of the overhead power line danger. (e) Failed to identify risks associated with the existence of the overhead power lines and implement the necessary control measures to eliminate such risk. (f) Failed to provide any proper induction training to the worker in relation to hazards associated with the workplace prior to his entering it. (g) Failed to include any instruction or notice relating to power line awareness in its driver-visitor induction/instruction notice. 6 It was also agreed that the driver looked up prior to executing the lifting of his tray. There was no further evidence going to his actions beyond that. It may be inferred either that he did not see the power lines, or that, having seen them, he thought they were no threat to him. 7 Mr Taber's affidavit included the following matters. Graincorp currently employs some 700 permanent staff in New South Wales and Victoria and some 2,500 casual staff during the harvesting season, 500 permanent staff and 1,200 to 1,500 casual staff being employed in New South Wales. 8 The Kikoria Silo was constructed in approximately 1934 by Graincorp's predecessor and the site has been operating continuously. The power lines in question were constructed in the mid-1960's. Patterson's Transport, the contract company which employed the injured worker, had been attending Graincorp sites including the Kikoria Silo for approximately 20 years. 9 Since the accident a number of steps have been taken by Graincorp: (a) A Safety Bulletin was circulated in November 1999 to reinforce the danger of overhead electrical power lines. (b) All site managers were advised that growers and contractors were not to clean or dump their trucks on Graincorp premises other than at authorised dumping sites (which are well away from overhead power lines). (c) It was agreed that signs would be erected to warn all staff of the dangers of overhead power lines. In January 2002 the existing warning signs were altered by the addition of a notice calling on drivers to beware of overhead power lines. The telegraph pole from which the power lines were suspended also had a large notice attached to it calling for Caution - Overhead Power Lines. This sign was supplied by Great Southern Energy (now Country Energy). (d) After discussions with Country Energy, arrangements were made to install "pig tails" on the overhead power lines to assist with ease of identification of the power lines. This practice was extended to a number of other sites in the central division following ongoing risk assessments. "Pig tails" are flexible plastic covered wire coils with either an orange or hot pink colouring which are wound by the Energy Authority onto the power lines at different points increasing the visibility of the power lines. (e) The site induction documentation was amended to include a warning that all truck drivers must watch for overhead power lines. (f) Graincorp has and will continue to monitor operations to ensure both workers and visitors to the sites are made aware of the dangers of any overhead power lines. 10 Mr Taber also deposed to the desire of Graincorp to be a good corporate citizen and the recent establishment of the Graincorp Foundation in which 1% of all after tax profits are donated to rural centres to provide and assist in those regions. 11 The charge to which the plea of guilty relates is in the following terms: On 16 November 1999 the defendant, contrary to section 16(1) of the Occupational Health & Safety Act , 1983 failed to ensure that persons not in its employment, and in particular, the worker, were not exposed to risks to their health and safety arising from the conduct of its undertaking, to wit the operation of the workplace which involved the entry of delivery trucks to collect grain therefrom, during the course of which undertaking a tip truck driven and operated by the worker elevated its tipper tray which, in doing so, contacted overhead power lines by reason that the defendant: (a) Failed to warn of the existence and precise position of the power lines. 12 The prosecutor submitted that a number of objective features in this case suggest the imposition of a substantial penalty. They include: (i) the maximum penalty (for corporations) prescribed by Parliament for the offence at the time it was committed was $550,000 for the first offence and $825,000 for subsequent offences; (ii) the need for general deterrence; (iii) the need for specific deterrence; (iv) the defendant's failure to provide a safe system of work and inform itself of safe working; (v) the nature of the offence and that there were available simple steps to remedy the defective systems of work; (vi) the nature of the offence and the injuries manifested the degree of seriousness of the relevant detriment to health and safety; (vii) there were obvious and foreseeable risks to safety against which appropriate measures were not taken. 13 Another objective feature referred to is the need to pay regard for the aspect of sentencing concerned with general deterrence and also, in the context of Graincorp which conducts a large enterprise over many sites, the factor of specific deterrence. 14 Here, it was submitted, Graincorp had a positive obligation to inform itself of circumstances of safe working (WorkCover Authority of NSW (Inspector Dawson) v Waugh & Thora Sawmilling Pty Limited (1995) 59 IR 89 at 100). It was submitted the risk of serious injury was extremely high and was also obvious and foreseeable. Simple and straightforward steps could have been implemented to avoid or minimise the risk of injury, including the posting of appropriate signs and adequate installation of the powerlines. 15 As to discount on penalty, it was submitted the principles in R v Thompson; R v Houlton (2000) 115 A Crim R 104 at 138 are applicable in relation to the plea of guilty. Here, however, the plea was entered in the face of a strong prosecution case and this would have a reducing effect upon discount (see R v Ellis (1986) 6 NSWLR 603 at 604; Regina v Carter [2001] NSWCCA 245 at par.13). 16 For Graincorp it was submitted that there had been a deal of cooperation and agreement between the prosecuting authority and Graincorp. However, the offence was not, as the prosecution had submitted, one involving a high risk of serious injury and a serious breach of the Act. It was an offence calling for a penalty at the lower end; a minor offence. Graincorp had a policy, which it should have been more proactive in enforcing, that there was to be no cleaning of trucks on site. The risk crystallised in the unfortunate accident to the driver, because of his independent actions. It was accepted that Graincorp should have foreseen this possibility. It was submitted that the actions of the driver must be looked at in the context of the agreed fact that he looked up at the wires. He either did not see them, which has been addressed by the addition of the pigtails to the wires or he saw the wires and took an action with the calculation that was in fact a miscalculation. The wires cannot be insulated. There needs to be some physical intervention to create a risk 8 metres above the ground. 17 It was submitted that the particulars of the offence overlapped somewhat. Graincorp accepted its failures to lie in not elevating awareness of the powerlines. Here, the accident occurred on a clear day. The lines were clearly visible. It was submitted that in the context of occupational health and safety more had to be done and has been done but it should be looked at in the context of 40 years of operation with no prior occurrence of a similar nature. 18 Counsel referred to the penalties imposed on Graincorp by the Commission (Glynn J at first instance and the Full Bench on appeal [2001] NSWIRComm 127, 8 June 2001 and [2002] NSWIRComm 49, 15 February 2002 respectively) in Inspector Batty v Graincorp Operations Limited. The offence in that matter involved a nip point injury arising from the operation of an electrically-powered tarpaulin rolling machine. The operator's gloved hand was drawn into the nip point causing him to suffer a fractured right forearm. He was absent from work for 12 days and returned on selected duties for eight weeks. The incident in that matter occurred on 18 August 1998 and followed an earlier incident involving the same type of machine on 17 April 1997. In assessing penalty Glynn J had accepted that Graincorp had recognised the failures in its reactions to the original tarpaulin rolling accident in 1997 and recognised deficiencies as to the steps it had taken after that accident. It appears, from the prior convictions sheet, that the 1997 incident attracted a fine of $2,500 in proceedings before the Chief Industrial Magistrate. Her Honour assessed an appropriate fine at $40,000 which, after applying appropriate discounts, led to a penalty of $26,000. 19 The Full Bench found that penalty to be manifestly inadequate and not reflective of the objective seriousness of the factual circumstances of the offence. Insufficient weight had been given to the fact there had occurred a recent prior risk to safety comparable to the incident giving rise to the prosecution. After taking into account other matters not here relevant but accepting her Honour's conclusions as to subjective factors and the assessment of reduction in penalty on that account, the first instance penalty was set aside and Graincorp was fined the sum of $65,000. 20 Here, it was submitted that the level of penalty imposed on Graincorp by the Full Bench set a ceiling in the present matter, taking into account the failure, as the Full Bench observed, of Graincorp to properly deal with a risk which had produced a similar incident some 16 months earlier, a matter which would have affected the objective seriousness of the particular offence before the Full Bench. 21 In the present matter the maximum penalty is $825,000 by operation of s51A of the Act. The level of penalty must be assessed within that range. As is now well recognised, the principal indicator of penalty is the nature and quality of the offence involved (Independent Cargo Services Pty Limited v Inspector Mingare (Fisher CJ, Glynn and Peterson JJ - CT92/1041, 10 March 1994, unreported and Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 475). 22 The driver suffered burn injuries to his feet and a hand. However, I also accept the prosecutor's submission that the driver was extremely fortunate that he was not more seriously injured. The seriousness of the risk to safety may be manifested by the results of the circumstances (see Inspector Hannah v Wonar Pty Limited (1992) 34 AILR 377 - cited in WorkCover Authority v Waugh (1995) 59 IR 89 at 97). Despite this, I do not consider that the risk of injury present at the work site to have been an extremely high one. In substance, the failure of the respondent lies in the absence of direction, by the avenue of appropriate signage, to truck drivers not to raise their trays within the vicinity, at least, of the electrical wires. I accept the proposition advanced for Graincorp that the observation of the wires by the truck driver removed visibility or lack thereof as an issue, but the absence of direction left the possibility that he could attempt his manoeuvre in the erroneous expectation that he could do it without contacting the wires. 23 In the circumstances I consider that it would be inappropriate to view the Full Bench decision in the earlier Graincorp matter as setting a ceiling on penalty. The circumstances of the offence involved in that matter were very different and seem to me to have little, if any, directing effect in the assessment of penalty for the offence involved here. 24 I consider that a penalty in the lower range would be appropriate. I would assess penalty at $125,000. To that level of penalty I would apply a discount of 30% in relation to the plea of guilty entered at a recognised early stage, cooperation and the steps taken to remedy the latent risk. 25 Graincorp is convicted of the offence charged and fined the sum of $87,500 with a moiety of penalty to the WorkCover Authority of New South Wales. I also order that Graincorp pay the prosecutor's costs in an amount as may be agreed or in the absence of agreement, assessed by the Court. Liberty to apply if necessary in that regard. 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.