Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Maurice Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 273 PROSECUTOR: Inspector Maurice Vierow PARTIES : DEFENDANT: Rail Infrastructure Corporation FILE NUMBER: IRC305 of 2001 and IRC306 of 2001 CORAM: Glynn J CATCHWORDS : Occupational Health and Safety Act 1983 - s 15(1) - work involved working on multiple running railway lines - no work procedure to cover digression from routine - fatality - very simple instruction would have filled the gap in safe working procedures - number of incidents involving work on tracks in previous seven months - discount on penalty for plea and mitigating factors. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) Crimes (Sentencing Procedure) Act 1999 s 22 Capral Aluminium Limited v WorkCover Authority (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Limited (1998) 82 IR 384 Fletcher Constructions Aust v WorkCover Authority (1999) 91 IR 66 Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107 Inspector Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255 Inspector Belley v Rail Infrastructure Corporation [2001] NSWIRComm 323 Inspector Graeme Maugher for the WorkCover Authority of New South Wales v P Ward Civil Engineering Pty Ltd (CT1212 of 1994, 21/12/95, Fisher CJ CASES CITED : Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80 Lawrenson Diecasting Pty Limited v WorkCover Authority (1999) 91 IR 464 R v Houlton (2000) 49 NSWLR 383 Regina v Thomson (2000) 49 NSWLR 383 Regina v Sharma [2002] NSWCCA 142 Ridge Consolidated v Mauger [2002] NSWIRComm 108 Tyler v Sydney Electricity (1993) 47 IR 1 Veen v The Queen [No 2] (1987-1988) 164 CLR 465 WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179 HEARING DATES: 06/24/2002 DATE OF JUDGMENT: 10/24/2002 PROSECUTOR: Mr R Reitano of counsel Solicitors: WorkCover Authority of New South Wasles (Mr Andrew McColm) LEGAL REPRESENTATIVES: DEFENDANT: Mr B Hodgkinson SC Solicitors: Sparke Helmore (Mr Stephen Thompson) JUDGMENT: - 29 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: GLYNN J 24 OCTOBER 2002 MATTER NO IRC 305 OF 2001 INSPECTOR MAURICE VIEROW v RAIL INFRASTRUCTURE CORPORATION Prosecution under s 15(1) of the Occupational Health and Safety Act 1983. MATTER NO IRC 306 OF 2001 INSPECTOR MAURICE VIEROW v RAIL INFRASTRUCTURE CORPORATION Prosecution under s 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2002] NSWIRComm 273 1 This prosecution is brought by Inspector Maurice Vierow of the WorkCover Authority of New South Wales (the prosecutor) under the provisions of s 15(1) of the Occupational Health and Safety Act 1983 (the Act), against Rail Infrastructure Corporation (formerly known as Rail Services Australia) (the defendant/RIC). The prosecution proceeds by way of an Amended Application for Order in matter no IRC 305 of 2001. At the commencement of the hearing, the Court was advised by Mr Reitano of counsel for the prosecutor that the second matter no IRC 306 of 2001 is discontinued with no order as to costs. The first matter is proceeding by way of plea of guilty. 2 The background to the change of the defendant from Rail Services Australia (the RSA) to the Rail Infrastructure Corporation is that following upon a train crash at Glenbrook in which several lives were lost, McInerney J was appointed to enquire into all aspects of rail safety including, among others, any safety improvements to rail operations. In November 2000 he handed down his Second Interim Report. As a result of that report, as of 1 January 2001, the Rail Access Corporation (the RAC) and RSA were dissolved as separate entities by statute and amalgamated to form a new statutory state owned corporation, Rail Infrastructure Corporation (the RIC). 3 The charge is that the defendant, being an employer failed to ensure the health, safety and welfare at work of all its employees, in particular Predrag Bojanic, in failing to provide systems of work that were safe and without risk to health in undertaking maintenance work upon running railway lines. The particulars of the charge are: a) The defendant at all material times employed personnel in maintenance work. b) The defendant at all material times undertook maintenance work upon railway lines. c) The defendant failed to provide systems of work for undertaking maintenance work upon running railway lines that were safe and without risk to health. d) The defendant failed to ensure the provision of procedures that were safe and without risk for employees working upon running railway lines. e) As a result of the said failures Predrag Bojanic suffered fatal injuries. 4 The Court had before it in evidence documentation tendered without objection. Exhibits 1 and 2 were tendered for the prosecutor and exhibit 3 by Mr B Hodgkinson SC for the defendant. That documentation comprised: (1) An Agreed Statement of Facts (Ex 1) (the "agreed statement") together with a number of annexures: (a) Inspector's preliminary report of a fatal accident with 10 photographs; (b) 2 location diagrams; (c) 2 additional photographs; (d) process control plan; (e) copies of Safe Working Units (SWUs) 900, 901, 910 and 912. (2) Prior convictions history from the WorkCover Authority of New South Wales Prior Convictions Database (Ex 2); and (3) Affidavit sworn by Ken Kelman employed since 24 September 2001 by the defendant as General Manager, Safety. (Ex 3) Annexed to that affidavit were: Annexure A (i) Memorandum dated 16 October 1998 by Terry Ogg, CEO, RSA (re Safety Bulletin) (ii) Memorandum dated 23 October 1998 by Terry Ogg, CEO, RSA (re Safety Bulletin) Annexure B Circular No 470-99: Worksite Protection Instructions for Infrastructure Works on the RAC network (as from 23/8/99) Annexure C Induction Brochure Annexure D Job Safety Analysis - OHS&R instruction Annexure E Safety Awareness Briefings (Tool Box Meetings) - OHS&R instruction Annexure F Pre Work Briefing - OHS&R instruction Annexure G Brochures from DuPont (x2) Safety and Environmental Management Services Annexure H RailSafe Rules Overview Annexure I The Protection Officer's Log 5 Upon instructions, Mr Hodgkinson advised that the date, June 2002, shown at the foot of the attachments signified the date of the latest revision. 6 Following discussions with counsel for the prosecutor in relation to Mr Kelman's affidavit, Mr Hodgkinson put two matters before the Court. 7 Mr Kelman deposed that he has been involved with the defendant only since 24 September 2001 and clearly a reading of the affidavit shows that he deals with events and facts prior to that time. Those events and facts are advanced to the Court on the basis of his opinion and belief and are not and cannot be advanced on the basis that they were drawn from his personal experience save and except as to his own curriculum vitae. The defendant advanced it because Mr Kelman was a general manager in the occupational health and safety area and it was thought that he was the most appropriate person to bring this information before the Court, but, quite properly, the prosecutor has raised that point and the defendant can make the concession just identified. 8 The second matter drawn to the Court's attention was paragraph 12. Paragraph 12 contains a reference to annexure A which is a memorandum of 16 October 1998 and it comprises a covering letter and a safety bulletin and a safety bulletin amendment which is dated 23 October 1998. The defendant is unable to establish that either of the two workers involved, including the deceased, had been made aware of the safety bulletins. It does not advance those safety bulletins as necessarily having been seen by either of the workers involved. 9 Upon the basis of the above concessions there was no requirement of the prosecution for Mr Kelman to give evidence. Mr Kelman was present in court and was prepared to give evidence. 10 The background to this prosecution are set out below in brief extracts from the agreed statement: 7 At approximately 11.00am on 27 January 1999 Predrag Bojanic sustained fatal injuries when struck by a passenger train travelling on the 'Down Suburban" railway line between Central and Redfern railway stations. Immediately preceding the incident Bojanic was walking in a northerly direction between Central and Redfern Railway Stations upon the 'Down Suburban" railway line. When at a location of approximately .767 kilometres (being a distance in kilometres from a fixed reckoning point at Central) Bojanic's attention was momentarily diverted from the direction in which he was walking and, at that time, an approaching passenger train travelling in a southerly direction on the 'Down Suburban' railway line struck him causing fatal injuries. … 9 On the date of the incident Marowan El-Kabbout and Predrag Bojanic were charged by Rail Services Australia with the task of carrying out 'Krautkramer' ultrasonic testing of various rail welds between Central and Redfern railway. 'Krautkramer' ultrasonic testing being a process whereby rail welds are examined and tested by portable pieces of ultrasonic equipment in order to detect possible defects. Two persons normally carry out this type of testing while trains are operating over the particular section of track. One person actually performs the test and the other acts as a "lookout" or "handsignaller to warn of approaching trains. In the event a train approached the men would move from the railway line to a position between adjacent railway lines. The tests were required to be carried out at pre-determined locations on a number of running railway lines provided for the travel of trains to or from Central Railway Station. 10 El-Kabbout and Bojanic carried out 6 distinct tests on 5 different railway lines between Central and Redfern without incident. Thereafter, the men walked to a location at .915 kilometres on the "Up Suburban" railway line and commenced preparing equipment for their last test. In the course of that preparation it was discovered that a particular piece of equipment necessary to effect that test was missing. The piece of equipment was believed to have been left behind at a location at .710 kilometres on the "Down Local" railway line being the location it was last used. 11 It was resolved between the two men that Bojanic return alone to the location at .710 kilometres on the "Down Local" railway line and retrieve the piece of equipment. El-Kabbout was to remain with the equipment at .915 kilometres on the "Up Suburban" railway line. El-Kabbout advised Bojanic of the direction of travel of trains on the respective lines, instructed him to be careful when walking and crossing the lines and to face the direction from which trains travelled. 12 Bojanic walked across to the adjacent "Down Suburban" railway line from the "Up Suburban" railway line, walked in a northerly direction along the "Down Suburban" railway line toward Central Railway Stationand away from El-Kabbout. … Bojanic turned his attention from the northerly direction in which he was walking and looked in a westerly direction toward a train passing on a parallel line. At that time El-Kabbout, … firstly observed an illuminated track warning light on the "Down Suburban" railway line become extinguished (indicating the approach of a train on the "Down Suburban" railway line toward Bojanic) and then observed a train emerge into view on the "Down Suburban" railway line. The warning light was not visible to Bojanic … The train was travelling at a speed of approximately 50-60 kilometres per hours in a southerly direction … and was approaching Bojanic on a level section of track. At this point Bojanic was side on to the train … was looking in a direction to the left of El-Kabbout. … 13 El-Kabbout, … shouted and waved his arms in an effort to warn Bojanic of the approaching train. The driver of the approaching train, who had no prior warning of the presence of Bojanic, first sighted Bojanic when at a distance of approximately 65 metres away. He caused the trains warning device to be sounded and applied the emergency brakes. Bojanic turned and faced the train momentarily before being struck by the train occasioning the fatal injuries. … 16 The area between Redfern and Central incorporates multiple running railway lines (12) with a high density of train operations in both directions. Because of the number of lines and the density of train operations, the areas in which persons performing work upon the railway lines can seek refuge from an approaching train are limited. Trains are authorised to travel upon the "Down Suburban" railway line at a speed not exceeding 80 kilometres per hour. 11 Summing up, it was said that: 20 The means of protection implemented by the men when working alone by taking responsibility for their own protection and "looking out for trains" themselves was prescribed by SWU 910 and 912 as an available means of protection and both men held the relevant Track Safety Awareness Certificate prescribed by SWU 901 authorising them to perform duties whereby they were responsible for their own safety and keep a lookout for trains themselves. 12 How SWU 912 was implemented in practice on the day of the fatal accident was also set out: 17 … In accordance with those procedures El-Kabbout, in his capacity as the worksite supervisor on the date of the incident, determined that the level of protection required Bojanic to perform the task of a handsignaller or lookout responsible for providing warning of the approach trains whilst he (El-Kabbout) performed the task of examining and testing the rail welds. Information regarding the times trains were scheduled to travel upon the various railway lines between Central and Redfern railway lines was not obtained prior to the commencement of work. El-Kabbout briefed Bojanic regarding the implementation of SWU 912 prior to the commencement of work on that date. 18 Whilst the process of testing of welds was carried out the means of protection by providing a handsignaller or lookout person as prescribed by SWU 912 was implemented. However, from the point in time Bojanic made his way alone along the running railway lines such protection was no longer provided. Bojanic was provided with no means of protection against the risk of approaching trains other than taking responsibility for his own protection and "looking out for trains" himself. Bojanic was required to locate the previous work site and the missing piece of equipment whilst also "looking out for trains". 19 Throughout the period in which Bojanic made his way to the previous work site, the relative positions of El-Kabbout and Bojanic were such that El-Kabbout was not in a position to competently act as Bojanic's lookout and provide adequate warning of approaching trains. … … Submissions - Prosecutor 13 The prosecutor, in his written submissions, drew the Court's attention to the relevant principles as to penalty as expounded in the authorities, including: The penalty must compel attention to occupational health and safety (see Fisher v Samaras Industries Pty Limited (1998) 82 IR 384; Capral Aluminium Limited v WorkCover Authority (2000) 49 NSWLR 610). The primary factor to be considered in determining an appropriate penalty is the objective seriousness of the offence (see Lawrenson Diecasting Pty Limited v WorkCover Authority (1999) 91 IR 464 at 474; Fletcher Constructions Aust v WorkCover Authority (1999) 91 IR 66 at 77-81). The seriousness of an injury does not dictate the size of any penalty but it does demonstrate the seriousness of the detriment to safety occasioned by the offence (see Inspector Tyler v Sydney Electricity (1993) 47 IR 1 at 5). 14 With specific reference to the circumstances giving rise to this prosecution, Mr Reitano contended that the Court should have regard to the foreseeability of the risk which is the subject of the charge. There are a number of factors that are relevant to this aspect of the matter. First the fact that the two workers in question were working on and around live railway lines where trains were moving at speed. The hazard presented by the very nature of the work in question was not only foreseeable but obvious. 15 Further, the relevant danger should have been well known as a result of earlier incidents. On 15 October 1998 there was a fatality involving the defendant. That fatality concerned the same risk that is at issue here (see Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80). Only four months earlier on 14 June 1998 a worker had been seriously injured when struck by a moving train while walking across live rail lines (see Inspector Barnard v Rail Infrastructure Corporation (Barnard No 1) [2001] NSWIRComm 255). On 27 October 1998 an employee of the defendant was involved in a fatal incident at Trangie rail yard when the worker was crushed between a moving train and a stationary train whilst carrying out shunting duties (Inspector Belley v Rail Infrastructure Corporation (Belley) [2001] NSWIRComm 323). In three of these cases the very same systems of work and procedures were in issue. 16 When the Court looks at the penalty in this matter the Court will see that in a relatively short period of time, in the latter part of 1998 all these incidents occurred. The defendant was placed on notice, if anyone needed notice of the risks posed by having workers working in or near or around live railway lines. 17 In respect of foreseeability, there were the previous incidents noted above. One of them relates to 15 October 1998 and in Mr Kelman's affidavit he refers to the issue of a memorandum on 16 October 1998. It was issued the day following the Belley incident that is dealt with by Haylen J in Inspector Vierow v RIC on [2002] NSWIRComm 80. 18 It is against that background that the Court comes to consider sentence in this matter and those matters are relevant as to deterrence and to the question of how foreseeable the incident was. 19 An ex post facto consideration of what would have occurred if the new system was in place as set out in paragraph 40(c) of Ex 3 shows that they are relatively simple steps that could have been taken to avoid a fatality of the kind that occurred here. The use of a handsignaller where a worker was performing work in and about live rail lines would readily have eliminated the risk. Nothing appears to have been done to ensure such a system was in place or maintained. 20 The circumstances of this case, like that considered by Haylen J in Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80 at par 68, involved a risk that was "entirely foreseeable and could have been avoided by a simple application of the existing Safe Working Units". 21 In each of those cases the defendant in one way or another had a system of work in place. Safe working units were stated in each of these cases to reflect the system of work that was in place. Using it only as an example, in Barnard No 1, the first of the cases and the only one that was defended, Haylen J found that the system provided for a "skeletal system of work". His Honour found that that was a better system than no system at all. 22 The objective seriousness of the offence in the present circumstances is to be placed at the higher end of the scale having regard to both the obvious nature of the risk, the forewarning that the defendant had as a result of several earlier incidents of a similar or related kind and the simple remedial steps that could have been taken to ensure against the detriment to safety created by the circumstances. 23 The issue of specific deterrence and general deterrence assume some importance in this case. Obviously the imposition of a significant fine will operate as a general deterrent. 24 As to specific deterrence the fact of a series of similar incidents occurring in the months preceding this incident are significant. This incident cannot in the light of the earlier matters be regarded as some isolated aberration. The same history highlights the need for any penalty to have regard to the need for specific deterrence (see Veen v The Queen [No 2] (1987-1988) 164 CLR 465 at 477-478; Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107 at pars 30-31). 25 In Inspector Barnard v Rail Infrastructure Corporation (No 2) (Barnard (No2)) [2002] NSWIRComm 107 at par 29 Haylen J concluded that although the system had been changed there was (and remained) in the circumstances a particular role for deterrence in that case. 26 In imposing a penalty on the defendant the Commission would have regard to the substantial fines imposed in those four cases cited earlier which involved similar circumstances, the same system of work and the same defendant. Of the four offences, three were in circumstances where workers were working in or near or about railway lines and were struck by trains. To the extent that Trangie is different it dealt with a worker who was working in shunting duties and was, in effect, sandwiched between a stationary train and a moving train. The Commission would be guided by those cases as to the seriousness of the instant case. 27 Further, consistency in sentencing requires the Commission to consider the earlier sentences not only because they involve the same defendant, but also because they involve offences of a similar kind. At least in terms of the Barnard cases and in terms of Belley there is some degree of similarity that is more apparent than might otherwise be because of the attack upon a system of work, because of the presence of trains moving along live railway lines and because of the fact that the type of work being done is maintenance work. 28 As to the charge and the relevant particulars to the charge, there are two points to be made. Firstly, the incident now being dealt with occurred on 27 January 1999 and, secondly, it is a system of work for undertaking maintenance work which the Court will see from the other judgments involved exactly the same particularity, that is, systems of work in the context of maintenance work. 29 The three factors that are significant in this matter in considering the objective seriousness of the offence are the foreseeability of the risk involved. Secondly, the steps that could have been taken in order to deal with the risk or the detriment to safety. Thirdly, the practical consequences of the commission of the offence. 30 It is one thing for the defendant to come before the Court and say, apparently some years after the accident, it has responded by developing new and appropriate training systems of work and the like. It is another thing for the Court to be satisfied so comfortably that those systems will be properly complied with and applied in a way that is much different from the SWUs. 31 There are a number of matters that need to be dealt with from the previous decisions that the Court should be alerted to. The evidence of Mr Kelman put forward is evidence of one kind or another that was considered by Haylen J in the other cases, the best example of which is Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80. Putting aside the differences in the factual matters that were relevant to the circumstances of that matter, paragraphs [6] to [33] deal with the affidavit of a Mr McDonald. Mr McDonald there talks about such things as the role of DuPont, the Special Commission of Inquiry, the issue of the memorandum of 16 October 1998, the amendment of the safe working units and the like. Mr McDonald did not deal with the NWTs to the extent that Mr Kelman has dealt with them. There certainly was some reference to them but it is not readily apparent, from the judgment at least, that the matters were explained in perhaps as much detail as they have been in Mr Kelman's affidavit. 32 In that case, in dealing with the same defendant, Haylen J allowed a 20 per cent discount for the early plea and a five per cent discount for other subjective factors. 33 In Barnard No 2 his Honour dealt with the evidence of Mr McDonald and once again that evidence appears to be relevantly the same as Mr Kelman's in substance. There is obviously no reference to any discount for a plea in that case because it was defended but his Honour does not give any indication as to the discount his Honour considered appropriate for the subjective factors in that judgment. 34 In Belley his Honour did not identify any specific percentage that his Honour considered appropriate for subjective factors or the utilitarian value of the plea. 35 The prosecutor seeks a moiety of the fine and costs. That much is not opposed. Submissions - Defendant 36 The relevant corporate organisational structure is important in considering the entity that the Court is dealing with and the approach to be taken with that entity in the course of the sentencing procedures. 37 Until July 1996, the rail network was owned by the State Rail Authority (SRA). There was, thereafter, a legislative initiative which divided it into four divisions: Citylink, Countrylink, Freightlink and Property Division. They reported to a single chief executive officer but they were separate legislatively identified divisions. At the time of this particular incident in January 1999 the Rail Access Corporation, or RAC, was the owner of the New South Wales Government Rail infrastructure and the Rail Services Authority, or RSA, was one contractor that contracted to the RAC. 38 The prosecutor says the organisation with its systems, if it had systems, were not operating. It is said by the prosecutor that there were a number of incidents in a small period of time, including a number of fatalities and that those fatalities were foreseeable in the circumstances of the incident as was this one. What one does see in terms of the defendant's record is that in about late 1998 there was clearly a spate of incidents, each of them involving very, very serious consequences. For instance, there were a number of them involving deaths and the defendant did not seek to downgrade that. 39 The defendant says that this was a very unusual circumstance and followed a very unfortunate experiment by the legislature. What it says is this: there is a statutory organisation divided into divisions as identified. Almost immediately thereafter, one starts to see the record upon which the prosecutor relies develop. These are the developments that are reflected in these circumstances making up the factual basis for each of the prosecutions in 1998 and in 1999. Almost for the first time in the history of these organisations one starts to have this spate of very serious incidents and deaths arising from the interface between working people and moving trains on the rail system. 40 What one is dealing with here is a consequence of that structural re-organisation. But over the very period in which this accident occurred and the recognition of that situation, steps were being taken to address that situation which ultimately resulted in the legislature changing the structure again as of 1 January 2002 so that the organisation was put back together, so that the divisions are now working together instead of separately. 41 It is not therefore just a case where one has the same organisation that has continued to act the same way as it had in the past. It really is a new organisation with a very significant new approach to its discharge of obligation in this area of occupational health and safety and that is what it asks the Court to have regard to. Indeed, the Court will be comfortably satisfied that the learning from that past experience has not only been taken on board, but has been acted upon in a way as the remarks of Mr Kelman identified. 42 The safe working units (SWUs) were managed by the SRA having come relevantly to trackwork from the SRA area, it being the predecessor to these divisions, and they applied to all users and operators of the rail network. They also applied to other contractors and the like who were working within the rail system. 43 Safe working units 910 and 912 were long-standing procedures in terms of how one goes about this interface of working people and train movements. The operation of the rail network and the interface between working people and moving machinery is a very complex and detailed undertaking, its dynamics being that there are significantly thousands and thousands of movements on a daily basis around the network of trains and other pieces of equipment together with the need to balance at all times the public interest in keeping the rail network operating to provide a service to the people of New South Wales. It is not simply a matter of turning the system off at one time and doing the maintenance work because the rail network provides a 365 days a year service to New South Wales. 44 It is clear from the statement of facts that in this case the deceased worker was, at the time that the work was being carried out, acting as the lookout for the other worker so that he could carry out testing of welds. 45 Whilst the work was being performed this lookout system acted effectively and ultimately the Court would take into account that the operation was not completely devoid of appropriate safety consideration. The respondent, of course, does not canvass the plea. However, the deceased worker was acting to retrieve a piece of equipment that had been left behind. It accepts that in those circumstances there was a responsibility under the Act and there has been a failure in terms of the system. 46 Prior to the incident there was a comprehensive system of training in place. Mr Kelman puts this into three areas of training: general induction, safety induction and site specific safety induction training. Importantly, in the statement of facts it is noted that the two employees had been trained in track awareness, had their track awareness certificate and that is, of course, safety training for people involved or who might be in the vicinity of active trains on rail lines. 47 The difficulty, of course, is that no job safety analysis had been undertaken for the task of retreating from the last position, that last position in relation to the job to be undertaken to the previous position as a consequence of having left a piece of equipment back at the last one. 48 After the incident all employee training courses for the SWUs were reviewed by RSA to incorporate a risk management perspective. RSA personnel were trained in risk management and analysis. That is a fundamental change. 49 In March 1999, the RSA after recognising that real difficulty was happening, engaged the international consultants DuPont Safety and Environmental Management Services (DuPont). 50 There have been significant developments since 1999 but not in the sense of just throwing out that which was good. Safety management committees previously met on a monthly basis and they have certain responsibilities. Safety committees are recognised in the new 2000 Regulations as not only being worthwhile but an essential part of any properly managed safety system within any organisation. That system continued one that has been in place for some time. 51 The new organisation really is moving forward with a different approach and in a way that is addressing the very problems that are at the basis of this prosecution. The defendant accepted that it had had a system problem. So what has been addressed is the system not just the particular work, but the system, so as to fundamentally change it. 52 The Government has also established the Office of Co-ordinator General of Rail as a Department of the Public Service responsible to the Minister of Transport and appointed Mr Ron Christie as Co-ordinator General of Rail on 7 June 2000. There were also certain recommendations made by McInerney J which were acted on. McInerney J had identified that the SWUs were no longer operating in the way intended and the result has been rail safety rules overview. 53 Justice McInerney recommended that the rewriting of the SWUs be given the highest priority. On 4 November 2001 "Network Rules" (referred to as NWTs) for users and operators of the rail network were introduced. NWTs 300-328 replaced the SWU 900 series and extended the SWU formerly known as SWU 912. (NWT stands for network work on track.) 54 There was a fundamental change of focus within RIC in its approach to the rules to apply to the rail network system. This approach changed from having a focus on the application of the rules to one of risk assessment. The NWTs are based on established risk management principles that encourage continuous assessment of safety. This is the core principle around which all of the NWTs are based (i.e., a system of risk assessment). 55 The NWTs and Network Procedures contain diagrams and illustrations; they are written in plain English and are designed to be concise and easy to read. Further, the NWTs and Network Procedures were developed in consultation with all users and operators of the rail network and considered engineering, human factors, operational activities and training. 56 The NWTs and Network Procedures are interrelated and contain cross-references to each other. 57 The difficulty for a system that is as dynamic as the rail system is that lots of standards and systems of work can be published but unless publication is accompanied by significant training, management can never be certain that the people to whom these systems are addressed are actually aware of them or aware of their operation or their proper operation. So that rather than do that within the new structure, training has been introduced to tell people what is going on, why it is going on, how it operates and then the new standard follows the training and in that way the message has been not only conveyed but reinforced and its real operational aspect has been identified to the people most necessary, the workers themselves. 58 There is no point in just introducing NWTs. No matter how well one designs them, one has to train people in their operation and their purpose and that is done in a 16 to 20-week block. It is an ongoing process. Further training in further developments of this process is to be undertaken this year, commencing in August and running through for the three or four months that it will take. 59 The 16 to 20-week block is the training process necessary to cover everybody within the organisation. Various people will receive training; they will be taken out of work for the time required to train them in those rules and some training will be general, some of it will be very specific as to that which impacts upon their work. It is not necessary, for instance, to train all staff in rules that are necessary for a train driver. Different training is required for a person who is part of a gang of people who has a large part of, say, north-western New South Wales and its track to look after, and a person who is working in an area being worked that has multiple tracks for instance, for Central Station say to Redfern tracks back to Central, where the risks are going to be different for a person who works where there are only one or two tracks, one going in each direction. The training will be tailored to the individual gang or group and what they need to understand out of the totality of the system. 60 The 16-20 week block training is done to ensure that there is an understanding of the new system generally at the same time throughout the organisation so that if an employee moves from one gang to another that employee is not moving in terms of one gang having had a series of training and knowledge and the next gang having a completely different system. The whole organisation is being brought up to speed in operating on the same system. 61 That is quite a massive undertaking. It is not just a case of getting a couple of halls and having a few people speak. For a 16 to 20 week block, there are roster considerations and annual leave to be taken into account so that people are not missed out. 62 The toolbox meeting process was introduced. Bombarding people with written information does not always have any effect, apart from the fact that they have papers. Generally, toolbox meetings, on the other hand, are more focused on small groups and allows conveying of information on safety issues and the like relevant to that group and its actual operation. 63 Pre-work briefings is a complementary type system to the toolbox type of system but in terms that it is aimed at leaders so that they know what standard is required and what operational standards have to be met and how to meet them and therefore how to convey the information to the toolbox sessions. 64 The Court is, of course, confined, in determining what is before it in terms of the nature and seriousness of this offence, not of other offences which have been committed by the same defendant. There are three things that the Court may draw from Mr Kelman's affidavit. There has been a change and that change is ongoing and that change is directed at occupational health and safety standards so as to raise the level if one looks to that which is required by the legislation. What the defendant hopes to establish for the Court is that it has addressed the system and has moved to the risk assessment basis for the system, so whereas Haylen J might be saying that the SWU had become a paper system or was not enforced, he was speculating when he was talking about the need for deterrence to make the new system work. The defendant is able to show the Court it was working. 65 Certainly the Court deals with the record, but in the material the defendant has put forward to the Court it has discharged these further propositions, that it has created for the Court a proper factual basis for determining the implementation that is being undertaken; that implementation is being undertaken at the very grass roots level, that is, at the work force level itself, and that the system provides an extensive training program. It is an operable system and an operating system. That is the inference the defendant hopes the Court is able to draw from the material. 66 The Court will consider deterrence but, when it considers it, in the light of the information in this case and the nature and quality of this offence, it will see that specific deterrence is not the significant factor here. 67 General deterrence will be involved in the ultimate determination of the penalty applied. It would be limited factually because most people are never going to be in the circumstances where they are running an organisation operating rail tracks and the interface between those operations and working people. 68 There has to be a penalty that reflects the nature and quality of the offence. When one weighs up the nature and quality it is not going to be a penalty that is at the aggravated level of the occupational health and safety jurisprudence. It is not one where the Court is going to say they are doing nothing, or they have just got another paper system, or they are not as a management implementing appropriate processes or that even in a legislative sense they have not addressed the great difficulties that were becoming clear as a consequence of these various incidents. It would be on the basis of the material that is before the Court, for the Court to accede to the proposition that there was no doubt as to the implementation of these new systems. 69 As to foreseeability and the simple steps proposition advanced on behalf of the prosecutor, it may be that one level one is talking about simple steps. That is in isolation to absolutely everything else. There is a great deal of very complicated work that goes behind the proper introduction of what are described as the simple steps and that would be weighed and balanced. That would be a factor that the Court would have regard to when looking at this area. That is a legitimate area for the process of sentencing and determination of penalty. What the Court needs to appreciate is that in order to get to these simple measures is that there needed to be legislative change, there needed to be management change, there needed to be a complete cultural reassessment as to the approach to be taken to safe working units and the approach to working safely within a rail system and in that sense the steps that are taken are far, far from simple so that they really operate at two levels. 70 One of the factors that the Court will have regard to in the sentencing process is to ensure that a justifiable sense of grievance is not created in the defendant as a consequence of the penalty. Equally, the Court will have regard to the fact that if the penalty is manifestly inadequate, then the prosecutor is entitled to, in the more wider public interest, to seek to have that approach reviewed. The Barnard decisions, will not provide the Court with a great deal of assistance in that weighing-up as to penalty, because the first is a test of liability, and so provides little of assistance in the particular area of discounts for the Court. 71 In Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80 Haylen J provided a discount of 20 per cent in respect of the plea of guilty and five per cent for other subjective factors. He clearly identifies factors but does not then necessarily set out the impact of those factors other than through the result which is the percentages. Haylen J did not have the assistance of the Full Bench as now provided in Ridge Consolidated v Mauger [2002] NSWIRComm 108. 72 Consistent with Ridge, in this case the Court would apply for the utilitarian benefit of the plea in this matter the maximum or very near to it applicable under the Thomson guidelines and the Court would, thereafter, weigh in the balance and in favour of the defendant the other factors to which reference has been made in mitigation of penalty. Submissions - Prosecutor - Reply 73 Counsel for the defendant said that there is no evidence available to the Court that would make the Court have any doubt about the new systems of work that are being implemented. The fact is there were systems of work reflected in the safe working units that appear to have dissolved or to become nothing more than paper systems in the past. The Court will have some concern about the efficacy about new paper systems and whether they are going to be implemented or not. That is where the doubt is. The Court would want to reinforce in the sentencing process the importance of those systems not suffering the same fate as the safe working units. 74 The defendant said that here are circumstances where the defendants deserve the very top of the range of discount for the utilitarian value of the plea because the plea was entered at the earliest opportunity. 75 That is not the approach that cases such as Regina v Thomson (Thomson) (2000) 49 NSWLR 383 suggest the Court should take. The complexity involved in proof and the timing of the plea are the two factors that the Court needs to be aware of in establishing a discount for that element. There are two extremes which are really exceptional. One is where the range hits the top end of the scale at 25 per cent. The other is where one hits the bottom end of the scale at zero per cent for the utilitarian value of the plea and both of those appear to establish a range within which the sentencing discretion needs to be exercised (see Thomson pars [154] to [156]). 76 In this case, the prosecutor through his counsel properly conceded that here it is true that the defendant entered an early plea, perhaps not at the earliest available opportunity but it was an early plea and that has assisted in the progress, but that is not the end of the matter. The Court needs to consider other aspects of the matter and that is the question of proof and the complexity of bringing witnesses to Court and demonstrating the matter by relevant evidence. It is ultimately a matter for the Court's discretion as to what discount is allowed. Legislation 77 The Occupational Health and Safety Act 1983 provided as follows: Part 3 General provisions relating to health, safety and welfare at work Division 1 General duties 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all his employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if he fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of his employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for his employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section. Consideration 78 The principles proper to be applied in the Court's consideration of penalty in this matter are well known. Relevant principles have been taken into account and include the following: (1) Principal and particular purposes of the Occupational Health & Safety Act 1983 are: (a) The protection of workers from breaches of safety, health and welfare; and (b) To compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. [See: WorkCover Authority of NSW v Air Express International (Australia) Pty Ltd (1996) 83 IR 64; Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388; and Alcatel Australia Ltd v WorkCover Authority of NSW (1996) 70 IR 99 at 106. See also WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Ltd & Anor [2000] NSWIRComm 277 at 47] (2) The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence. The maximum penalty is available to be utilized in a "worst case scenario". However, that does not mean that the maximum is only applicable in circumstances where the Court can not envisage a worse case or that some lesser penalty is apposite because the sentencing court can envisage a more heinous factural scenario (see Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 at 698). (3) The primary factor to be considered in determining the sentence to be imposed is " … the objective seriousness of the offence charge" [ WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd NSWIRComm 39 at p 31 per Wright and the case cited therein.] (4) The existence of a reasonably foreseeable risk to safety is a significant aggravating factor to be taken into account in assessing of the gravity of an offence. [See: Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) Kembla Coal and Coke Pty Ltd IRC 142 of 1998 Unreported per Walton J [VP] @ 37-38] (5) The gravity of the risk to safety is relevant as a measure of the seriousness of an offence [See: Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476] (6) Neglect of simple well known precautions to deal with an evident and grave risk of injury, of which the defendant was fully cognisant, take a matter towards the "worst case" category on the continuum between zero and the maximum. [See: Inspector Roy Thomas Milligan v Roads and Traffic Authority Ind. Ct of NSW Unreported 29 August 1996 per Fisher CJ. 79 In my consideration of penalty, I have had regard to what was said by a Full Bench of this Commission (Wright J President, Walton J Vice-President and Hungerford J) in Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 at [37] ): 37 The appropriate use of guideline judgments has received some attention recently following the judgment of the High Court in Wong v The Queen and the subsequent judgment in Cameron v The Queen (2002) 76 ALJR 382. However, any uncertainty has been removed by the judgment of a five member Bench of the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142 which was determined after this matter was heard. In R v Sharma , Spigelman CJ, with whom Mason P, Barr, Bell and McClellan JJ agreed, considered that the construction of s 22 of the Crimes (Sentencing Procedure) Act 1999, having regard to its statutory and legislative history, including the Minister's second reading speech, resulted in the High Court's observations in Cameron v The Queen not being applicable in New South Wales; see also R v Cook [2002] NSWCCA 140. The Court also confirmed the continuing applicability of R v Thomson and Houlton . Whilst not having had the opportunity of submissions from the parties as to R v Sharma , we consider it appropriate to apply that judgment in these proceedings. We confirm the applicability and binding nature of the guideline judgment in R v Thomson and Houlton to sentencing proceedings for offences under the Occupational Health and Safety Act . 80 The guideline applicable to offences against State laws as decided in R v Thomson; R v Houlton [(2000) 49 NSWLR 383 at 419] is in the following terms: 160 The Court should adopt the following guideline applicable to offences against State laws: (i) 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. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. … 162 … In so far as existing sentencing practice has been to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, such a practice remains appropriate. 81 Earlier, (at 418), Spigelman CJ had said: 152 In my opinion, the appropriate range for a discount is from 10-25 per cent. 153 The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. 154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 156 Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options. … 159 It is also pertinent to state that a discount of 10-25 per cent is not a range within which trial judges may exercise a discretion that will not be subject to appellate review. Appeals against severity or leniency of sentence focus on the range which is appropriate for the particular case, not on the range appropriate for pleas in the full variety of circumstances. 82 In relation to the earlier reference to Regina v Sharma [2002] NSWCCA 142, I set out some extracts from the judgment, with which Mason P, Barr, Bell and McClennan JJ agreed, of Spigelman CJ: 21 … This Court's decision in Thomson indicated that the utilitarian value of the plea "should generally be assessed in the range of ten to twenty-five percent discount on sentence" (at [160]). … 35 In the present case, Woods DCJ referred to "the utilitarian component of avoiding the necessity for a trial". In doing so his Honour adopted terminology which has long been accepted in this State and which was reaffirmed in Thomson , which not only identified the utilitarian value of a plea in objective terms, but provided for a distinct quantification for the utilitarian value in circumstances where it rejected the submissions of the crown, and of the intervening Attorney General, that a discount be given for the whole of the value of a plea, incorporating all relevant elements including both the utilitarian element and other elements such as remorse. (See e.g. at [115], [116] and [160].) … 37 The discount range of ten to twenty-five percent established by Thomson , was based on the utilitarian value of the plea understood in an objective sense. There is no reason to accept that a discount of this order of magnitude would be appropriate as a separate element, if the courts' consideration were confined to the subjective factor of preparedness to facilitate the administration of justice. The size of the discount identified as appropriate in Thomson was determined by pragmatic considerations. If such considerations are not permitted to be taken into account, then the size of the discount identified in Thomson , which is reflected in the size of the discount given by his Honour, would no longer be appropriate. … 50 The New South Wales Act [ Crimes (Sentencing Procedure) Act 1999] states that a Court "must", not "may", take into account a plea. Furthermore, what is required to be taken into account is both " the fact " of the plea and " when " it was made. If a lesser penalty is not to be imposed then the Court must give reasons. 51 The statutory reference to "the fact " of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor, in my opinion, is the element of timing, reflected in the reference to "when" a plea was made, a reference only to subjective elements. … 62 On the proper construction of s22 of the New South Wales Act, courts in this State are, in my opinion, permitted to take into account the objective utilitarian value of the plea. … 83 Insofar as is relevant, s 22 of the Crimes (Sentencing Procedure) Act 1999 provides that: 22 (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty and may accordingly impose a lesser penalty than it would otherwise have imposed. (My emphasis) (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decision. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. 84 As already noted s 22 of the Crimes (Sentencing Procedure) Act 1999 makes it mandatory that a sentencing judge take into account both "the fact" of the plea of guilty and "when" it was made. 85 The two Applications for Order were filed on 23 January 2001, the defendant being named as Rail Services Australia. A plea of not guilty to each prosecution was later entered. They were referred for allocation by the Deputy Industrial Registrar on 20 September 2001, following five mentions and a successful application by the prosecutor to change the name of the defendant to Rail Infrastructure Corporation (RIC). The matters were allocated to me on 25 October 2001 and at the consequent mention on 5 November 2001, I was advised by Mr S Thompson, solicitor, on behalf of the defendant that although the defendant was maintaining its plea of not guilty in both matters, that plea was now not certain in the light of a recent decision of this Court which was said to be not entirely in the defendant's favour. He was seeking further instructions. On 14 December 2001, Mr Thompson further advised that although the not guilty plea still stood, the parties had made considerable progress and had come close to agreement on an amended summons. On 4 February 2002 the Court was told by Mr A McColm, solicitor, on behalf of the prosecutor that an amended application for summons had been filed that morning. The charge in matter no IRC306 of 2001 was to be withdrawn. Mr Thompson immediately entered a plea of guilty to the amended summons in matter no IRC305 of 2001. As a consequence, the three day hearing forecast for the defended matters was amended to a half day hearing on penalty. 86 If the defendant had pleaded guilty on 4 February 2002 to the two prosecutions unaltered in terms from the time they had been filed on 23 January 2001, then that would have been a factor that would have been likely to lead to a lesser discount being allowed in relation to the plea of guilty. However, in the light of the history of the two matters, it is my view that the plea of guilty was entered at the first reasonable opportunity. 87 In taking that plea of guilty into account, I allow a discount of 20%. 88 In relation to the place of deterrence in fixing the penalty to be imposed, it was said in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (Capral Aluminium) [(2000) 49 NSWLR 610 at [75] [76] [77] ], as part of a detailed consideration of that matter: 75 … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) SASR 417 at 422 … 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence … 77 In sentencing a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. … However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive: WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at [46]. 89 The relevant safe working procedures of the defendant as at 27 January 1999 are set out in detail in the agreed statement. I repeat some of them only: 14 As at 27 January 1999 the work of 'Krautkramer' ultrasonic testing of rail welds by Rail Services Australia employees was governed by a document published by Rail Services Australia and entitled "Process Control Plan (PCPCIV 11)". The document, inter alia, … identified "potential hazards" in carrying out the process as "Rail Safety - Staff hit by Train". The document did not itself prescribe specific measures to control the risks associated with trains travelling on railway lines but did refer to "control procedure(s)" as "Comply with Safeworking procedures (Ref SWU Eng)" and "Conduct Pre-Work Safety Briefing (Ref OH-C-12). 15 As at 27 January 1999 Rail Services Australia's procedures for work on or about railway lines was governed by a written manual entitled "Safe working procedures for Engineering Work" - the 900 series. The manual set out the procedures to be adopted when any type of engineering work was carried out on or about railway infrastructure. … The manual comprised a significant number of individual safe working units identified and distinguished by numbers. The individual safe working units were not intended to be implemented in isolation but considered as forming part of the 900 series such that, depending on the prevailing circumstances, individual safe working units could be implemented in concert in any one work situation. … 17 As at the date of the incident it was the ordinary practice of RSA to implement the provisions of SWU 912 whilst carrying out 'Krautkramer' ultrasonic testing of railway welds. … … Safe working unit 912 is entitled "Protecting employees working on or about the line when trains are not required to slow down or stop" SWU 912 provided two methods of protection where employees can work on or about the line when trains are not required to slow down or stop: the first method of protection is where employees are responsible for their own protection by looking out for trains themselves - 912[b] & [c]; and the second method is where a handsignaller(s) provides protection as determined by a worksite supervisor - 912[d] & [e]; SWU 912 further provides: when either of these methods is used all employees must ensure that they move to a safe place with their equipment and acknowledge the drivers locomotive whistle in sufficient time so that the driver does not need to reduce the speed of the train; when employees working on or about the line can safely look out for themselves and move to a safe place with their equipment without trains being required to slow down or stop, no other protection is necessary; when employees consider that they cannot safely look out for themselves, they must request a worksite supervisor to determine the level of protection required. When employees working on or about the line cannot safely look out for themselves, a handsignaller must be provided to act as a lookout. The handsignaller must be provided to act as a lookout. The handsignaller acting as a lookout must warn all employees in the working party when a train is approaching. The warning may be given verbally or by a hooter, whistle or other approved warning device; there is no need to obtain train running information; employees may use light equipment or light machinery if required. However, the machinery or equipment must be light enough to be physically removed clear of the line by the employee(s) present; to determine how employees will be protected depends on a number of factors including the location, the reason for being on or about the line and the equipment being used. 90 Safe working unit 910 entitled "general protection requirements" was also relevant to the situation. It provided inter alia, that when employees are working on or about the line and can safely look out for themselves, no other protection is necessary and when employees cannot look out for themselves, protection will be required. The level of protection must be determined by a worksite supervisor. When employees working on or about the line become aware of the approach of a train, they must move with any equipment to a safe place. [SWU 910[a]). 91 The objective seriousness of the risks to the employees involved in this matter is demonstrated by the presence of many of the same elements set out by Haylen J in Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80 at pars 66 to 70 and repeated by him in Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107. In this case however, those elements were magnified in effect by the location of the work site. The work was performed on live railway lines, in this case in the midst of multiple (12) running railway lines with a high density of train operations in both directions between Redfern and Central; the areas in which the employees could seek refuge from an approaching train were limited; the work practice was that the two employees would look after their own safety; the work system did not require train drivers to be advised that work was being performed on the line and there was no requirement (SWU 912 said "need") for the employees to obtain train running information. 92 It would seem from my reading of SWU 912 that its chief objective, although it is entitled "protecting employees", was to keep the trains running to schedule ie by not being required to slow down or stop because of work being undertaken on the lines. 93 In relation to foreseeability, the incident that led to this prosecution was the fourth, and last, within a period of six or seven months involving employees on rail lines, and, of those four incidents, was the third that involved maintenance work on running train lines. 94 I find that the offence was a serious one. 95 The objective seriousness of the offence, without more, calls for the imposition of "a very substantial penalty … to vindicate the social and industrial policies of the [1983] Act and its regime of penalties" (Inspector Graeme Mauger for the WorkCover Authority of New South Wales v P Ward Civil Engineering Pty Ltd (CT1212 of 1994, 21 December 1995, Fisher CJ at p 10). 96 Mr Kelman, in his affidavit, discussed the defendant's relevant corporate background and organizational structure, the circumstances surrounding this incident and the strategies implemented by RSA both prior to and after the incident, the RSA's system prior to the incident as to training and its OH&S policies and procedures at the time of the incident consequent upon a review of the RSA's business management systems by Brown & Root (a UK division of the Haliburton Group) and the secondment of executives capable of reorganizing and restructuring the RSA business from that company to Australia. The restructure was achieved by December 1999. 97 He stated that at the time of the incident the main policies, procedures and instructions that applied to ensure the safety of RSA employees on track were the SWUs, together with specific policies in place with regards to the safety of employees and others carrying out maintenance work, including job safety analysis, safety awareness briefings (tool box meetings) and pre-work briefings. There were also safety management committees who met monthly and liaised with each other. He noted that those committees continue to operate under the RIC. 98 He detailed the systems that were put in place after the RSA in March 1999 engaged DuPont Safety and Environment Management Inc, described as an internationally recognized risk management consulting company, to review its current safety systems and safety behaviours in the organisation and to recommend any changes. 99 DuPont proposed an eleven step Safety Improvement Plan which was implemented for the purpose of preventing injuries and incidents; to improve overall safety awareness; to build a stronger safety culture and to continuously and significantly improve safety performance each year. 100 The DuPont System relied on "safety observation" training which requires a manager or supervisor trained in the IMS to observe what is happening in the field in terms of safety. Safety officers were to implement safety policy and strategy, audit safety procedures and to ensure the consistency of safety policy throughout RSA. Observers were required to perform at least two safety observations per month. There was a database system which recorded the safety observation data. Each month a report was prepared and sent to managers. These reports were then distributed to the teams under the controls of the various managers. Where any follow up tasks had not been completed, the managers were to ensure that these were completed. 101 The Safety Management Committees in each area would analyse the safety observation reports and make recommendations for improvement. The Safety Manager reported directly to the General Manager of Safety and Standards who in turn reported to the CEO. 102 Both the DuPont System and the Safety Management Committees still operate within RIC. 103 The main features of the new safeworking system are as follows: (a) The Network Rules - these provide requirements for the safe operation on the RIC network and for ensuring workers' safety. They apply to all users of the rail network. In addition the NWTs contain a Glossary of terms. (b) Network Procedures - these give detailed instructions on how to perform safety-related tasks to meet the requirements of the NWTs. (c) Operator Specific Procedures (OSP) - these give detailed instructions for the carrying out of particular tasks or responding to certain situations. They are applicable to individual groups. The OSPs are entirely new procedures not found under the former SWUs system. 104 Mr Kelman, in his affidavit, described the effect of applying the NWTs and Network Procedures to this incident: (c) To protect a worksite, with the features of the worksite at which Mr Bojanic was working at the time of the incident, would, in my view, require under the NWT's [sic] a combination of the following safety measures: (i) Mr Bojanic would have acted as the lookout for Mr El-Kabbout, the "Krautkramer" operator, whilst he undertook the ultrasonic testing; (ii) Mr El-Kabbout would have been appointed to accompany a person in Mr Bojanic's position whilst he 'walked the line' to recover the piece of equipment he was seeking, as this activity would still be seen to be occurring on a worksite. 105 He discussed the training of employees on the contents of NWTs: 41 Prior to the introduction of the NWT's [sic] on 4 November 2001 an extensive training program on the content of the NWT's [sic] was commenced for all users of the rail network including the employees of RIC. The training was provided by Australia Rail Training, Belmore College and Southern Cross Rail. 42 The introduction of the NWT's [sic] is the first stage of the development and review of the Safety Network Rules. 43 The second stage will involve release of new Working Rules that will cover signaling infrastructure and safe working systems that are currently found in SWU series 100-800. RIC resources allocated to the new rules 44 The project team has been allocated a budget of $5 million over a period of three years for resources and funding. 106 My concern in relation to the most recent changes is that, despite the change of focus from the application of the rules to one of risk assessment, there still appears to be an emphasis on documentation, which is, of course, necessary but it would also seem that employees have to access three sources, the NWTs, the Network Procedures and the OSPs, to ensure full coverage of all safety requirements. I mention that concern but it has not affected the discount that I believe is properly available to the defendant in the light of the comprehensive steps it has taken since this accident, and in particular those steps that emphasise risk assessment and risk management. 107 It was claimed on behalf of the defendant that, although the remedial steps to obviate another such incident in the future might seem to be simple steps, the legislature first had to address the organisational changes it had imposed on the rail structure. I do not accept that remedial measures, such as those that eventually were put in place, or one very simple instruction given that no employee should walk alone when working on multiple running lines, could not have been pressed in the absence of the reorganisation of the administration of the railway system. In that respect, I note that on 11 April 2001, McInerney J handed down his Final Report and one of his findings was that the desegregation of the State Rail Authority in July 1996 had failed to work in practice. 108 This is not a case where no attention had been paid by the defendant to safety. The title of the Safe Working Units themselves indicate that it had. However, it does seem that that system had degenerated to the point that it had become more of a paper system, than an effective system to ensure safety. The new focus on risk assessment to be undertaken by all employees and the initial training of all employees is a big step forward. 109 I see no particular significance in the fact that in the hearings before Haylen J involving the same defendant as in this case, that similar information as to the structure, operations and past events affecting the defendant, as at the dates of the hearings, was presented by different officers of the defendant. One would expect such evidence to be a simple and uncontentious recounting of facts, a supposition supported by the fact that Mr Kelman, once proper concessions had been made by counsel for the defendant, was not required for cross-examination. Penalty 110 The defendant accepted that the Court will have regard to the past history of the Rail Infrastructure Corporation. It did not seek to re-agitate the issue agitated in an earlier decision, that being the introduction of the new legislative scheme in some way restricted the Court in having regard to the prior convictions. The defendant did not seek to rely upon such a proposition. 111 The maximum penalty under the Act for a breach of s 15 is $550,000 for a corporation which is a first offender and $825,000 for a corporation which is a repeat offender (see s 51A). 112 The history of prior convictions listed 8 convictions recorded in the period 10 December 1999 to 22 May 2002. The last four of them related to incidents which I was advised had occurred in the second half of 1998 and early 1999 and showed that the defendant had been fined $100,000, $150,000, $250,000 and $225,000 in respect of those incidents. 113 In the light of its previous convictions, the maximum penalty facing the defendant is $825,000. 114 The prosecution conceded that the defendant is entitled to a discount, having regard to its plea, and it also concedes that the defendant has co-operated with the prosecutor and its investigations into the incident. 115 I accept that in assessing the penalty it may be appropriate to take into account the size of the defendant's workforce, the number of work sites, and the nature of the work carried out by the defendant and its employees (see WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179 (6 October 2000 at [47] Wright J President) ). In January 1999, RSA employed approximately 5100 persons. Those employees were spread throughout the State of New South Wales although predominantly there were larger numbers in the metropolitan area because of the extent of the metropolitan rail system. 116 The defendant remains an employer, and an employer of a large number of people. That means, in terms of Capral Aluminium, that specific deterrence is a factor that is to be taken into account. As was accepted by the defendant, general deterrence is also a factor to be taken into account, even in circumstances where not many people will be running railways. That would merely be one of the factors that would influence penalty. 117 In all the circumstances I would assess an appropriate penalty at $250,000. The defendant is entitled to a discount by reason of its early plea of guilty, the utilitarian value of which has already been noted, which I would assess at 20%. Taking into account those matters raised by the defendant in mitigation as discussed earlier, the defendant is also entitled to a further discount of 10%. Accordingly the resultant fine should be reduced to $175,000. The prosecutor shall have a moiety of the fine. Orders 118 Leave to discontinue matter no IRC306 of 2001 is granted. 119 The Court makes the following orders: (1) The offence is proven and a verdict of guilty is entered. (2) The defendant is convicted of the offence as charged. (3) The defendant is fined an amount of $175,000 with a moiety thereof to the prosecutor. (4) The defendant shall pay the prosecutor's costs in an amount as agreed, or, failing agreement, by order of the Court. ************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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