Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Tyler) v P & D Coachworks Pty Limited [2000] NSWIRComm 80 PROSECUTOR PARTIES : WorkCover Authority of New South Wales (Inspector Tyler) DEFENDANT P & D Coachworks Pty Limited FILE NUMBER: IRC 312 and 313 of 1999 CORAM: Glynn J CATCHWORDS : Plea of guilty - Penalty - Deterrence - Foreseeability - Totality - Parity LEGISLATION CITED : Occupational Health and Safety Act 1983 s18(2)(a) & (b) s49(4) Motor Traffic Amendment (Bus Safety) Regulation 1997 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Hannah v Ricegrowers Co-operative Ltd (unreported, Fisher P, 90/88, 20/11/90) Haynes v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 CASES CITED : Robins v CT Plumbing Pty Ltd (unreported, Fisher P, 91/522, 16/12/91) Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 The Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal & Coke Pty Ltd (unreported, Walton J VP, 98/142, 16/8/99) WorkCover Authority of New South Wales (Inspector Barber) v Softwood Holdings Limited t/a CSR Timber Products (1999) 89 IR 40 WorkCover Authority of New South Wales v The University of Sydney (unreported, Hill J, CT95/1280, 2/4/97) WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 HEARING DATES: 11/24/1999 DATE OF JUDGMENT: 05/19/2000 PROSECUTOR Ms W Thompson of Counsel WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr M Scott of Counsel Mr B Hedges Solicitor Curwood & Partners JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: GLYNN J 19 MAY 2000 MATTER NO IRC312 OF 1999 INSPECTOR TYLER (WORKCOVER AUTHORITY OF NEW SOUTH WALES) v P & D COACHWORKS PTY LIMITED Prosecution under sections 18(2)(a) and 49(4) of the Occupational Health and Safety Act 1983 MATTER NO IRC313 OF 1999 INSPECTOR TYLER (WORKCOVER AUTHORITY OF NEW SOUTH WALES) v P & D COACHWORKS PTY LIMITED Prosecution under sections 18(2)(b) and 49(4) of the Occupational Health and Safety Act 1983 JUDGMENT 1 These matters are prosecutions by Ian Frederick Tyler (the prosecutor) as an inspector of the WorkCover Authority of New South Wales (WorkCover), of P & D Coachworks Pty Limited (the defendant) for breaches of s18(2)(a) and of s18(2)(b) of the Occupational Health and Safety Act 1983 (the Act/OH & S Act). 2 Ms Thompson of counsel appeared on behalf of the prosecutor and Mr Scott of counsel on behalf of the defendant. 3 The summons in Matter No 99/312 alleges that on 29 January 1996 at 37 Lundberg Drive, Murwillumbah in New South Wales, the defendant, being a supplier, did fail to ensure that plant provided for use at work was safe and without risks to health when properly used, contrary to s18(2)(a) of the Act, in that the defendant failed to ensure a Hino Model BD186 bus with Registration Number MO3342 supplied to Alan Roland Kerr and Linda Maree Kerr was safe and free from risk when properly used. 4 The particulars of the charge are: The defendant failed to ensure that the pressure regulator for the door opening/closing mechanism was adjusted to a level which did not pose a risk to safety or health whilst the said vehicle was used at work. 5 The summons in Matter No 99/313 alleges that on 29 January 1996, at 37 Lundberg Drive, Murwillumbah in New South Wales, the defendant, being a supplier of plant for use at work and in particular a supplier of a Hino Model BD186 bus Registration Number MO3342 to Alan Roland Kerr and Linda Maree Kerr, did fail to carry out or arrange for the carrying out of such research, testing, and examination as may be necessary for the purpose of the discovery and elimination or minimisation of any risks to health or safety to which the said vehicle gave rise, contrary to s18(2)(b) of the Act, in that the defendant failed to carry out or arrange for the carrying out of adequate tests, research or examination of the linkage mechanism which operated the door of the said vehicle. 6 The particulars of the charge are: The defendant failed to carry out or arrange for the carrying out of adequate tests, research or examination of the linkage mechanism which operated the door of the said vehicle. Had such tests been carried out the defendant would have discovered a) the excessive and dangerous force created when the said door linkage system operated to close the door to the vehicle; b) the risks associated with the uncontrolled movement of the door; and c) the potential for entrapment by the said door. Further, had research, testing and examination been carried out by the defendant it would have been apparent that the external buttons were inaccessible if a person became entrapped and attempted to manually operate the said system to open the door. 7 The defendant, which has no prior convictions, pleaded guilty to the charges. 8 The Court had before it a number of agreed documents: Agreed Statement of Facts. Coroner's Report by Inspector William Keenan (WorkCover): investigated the accident. Report by Inspector Hugh Corner, WorkCover Engineering Services Technical Unit: Examination of the pneumatic controlled door of the bus involved in the accident. Statement of Alan Kerr, co-owner/driver of the bus, husband of Mrs Kerr. Statement of Paul Thomas McGavin, managing director of the defendant. 97 colour photographs. Statement of Peter Goudie, mechanical engineer employed by the Roads and Traffic Authority of New South Wales (RTA). Statement of Colin Holmes, currently working on secondment from the State Transit Authority of New South Wales with the New South Wales Department of Transport as Manager Passenger Safety Vehicles in the Transport Safety Bureau. Statement of John Boon, Chief Engineer employed by Custom Coaches for 20 years, whose responsibilities cover all technical aspects of the design and construction of bus bodies and modification of chassis to make them suitable for a particular application. He is further responsible for the legal compliance and certification of the Company's vehicles with the numerous state and federal regulations and laws. Memo from M Bentley of the RTA. Report of Michael Henderson dated August 1996: Door Safety on Single-Door Buses prepared for the Department of Transport, New South Wales. Letter from Paul McGavin to RTA dated 18 March 1996. Motor Traffic Amendment (Bus Safety) Regulation 1997: commenced 1 August 1997. Roads and Traffic Authority Letter with Technical Specification 146: Bus Door Safety Systems. Issued 16 July 1997. 9 Oral evidence was given by Inspector William Kevin Keenan, currently employed as district co-ordinator at the Lismore Office of the WorkCover Authority. Inspector Keenan headed the investigation into the accident. 10 The prosecutor did not proceed to adduce evidence from Christopher John Turner, employed by WorkCover, after he had been called and sworn, in relation to a report he had prepared into the accident. Until it was tendered, the defendant had not seen the full document and had seen only a few extracted pages in the previous 3 days. 11 Paul Thomas McGavin, the managing director of the defendant, was the only witness called on its behalf. 12 Each of the prosecutions was brought pursuant to s49(4) of the Act. That sub-section provides: (4) If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be. 13 The prosecutions were filed on 29 January 1999. I do not have the date of the inquest before me, but Mr Scott of counsel on behalf of the defendant did not demur that the prosecutions were instituted within time pursuant to s49(4). 14 The circumstances leading to the invocation of s49(4) by the prosecutor are explained by brief reference to the Agreed Statement of Facts: 3. On 19 February 1996 Linda Maree Kerr a 32 year old self employed school bus operator sustained fatal injuries when she became trapped in the front access door of a school bus. Mrs Kerr died of Hypoxic Cerebro Encephalapathy, resulting from asphyxiation due to accidental neck compression sustained when the door of a bus closed without warning pinning her by the neck between the edge of the door and the door frame. 4. The deceased and her husband Alan Roland Kerr had recently taken over a school bus run having entered into a partnership. … 5. The bus involved in the accident was newly acquired vehicle purchased through a Toyota dealer, Cardiff Truck and Bus City located at Cardiff. The truck had been purchased on 15 January 1996. Mr and Mrs Kerr collected the vehicle on 29 January from the Defendant at 37 Lundberg Drive, Murwillumbah. The Defendant was subcontracted by Cardiff Truck and Bus City to complete the coachwork on the 45 seater vehicle. The work carried out by the Defendant included the fitting of the mechanism to open and close the door of the vehicle. It was understood by the Defendant that the bus was being purchased to be used on a school bus run and Mr and Mrs Kerr expended additional money on an automatic transmission, racks for bags and a higher quality cloth for the seats. An oral description of the operation of the bus was given by a representative from Cardiff Truck and Bus City as well as Paul McGavin from the Defendant on 29 January to both Mr and Mrs Kerr. 15 I have read and taken into account the Agreed Statement of Facts and other agreed documents tendered. I set out extracts from the Agreed Statement of Facts: 7. Mr Kerr states that the normal start up procedure for the bus prior to departing the Nardi Dairy farm to commence the run was to conduct an external examination of the bus. The door would be opened and the children [of Mr and Mrs Kerr] aged four years and twenty-one months placed on the bus and the engine started approximately 5 minutes prior to departure. The engine was warmed by turning on the idle control to 1,000 R.P.M's while waiting for the air pressure light to indicate the engine had reached the maximum pressure. The idle control would then be turned back to 550 R.P.M's. Once the bus was started and while pressure was building up it was normal practice for Mrs Kerr to perform any tasks necessary such as opening the windows roof hatch or attending to any other details. However, this was the first occasion the bus floor had been mopped up by Mrs Kerr. 8. Mrs Kerr had commenced driving school buses in October 1995 with a 37 seater school bus in Mudgee doing two to three trips a week on the run. She obtained her license on the 5 December 1995. At the time of her death she had driven the said vehicle approximately ten times. Mr Kerr had experience with buses dating back to 1982 when he had commenced driving. However the vehicle involved in the accident was the first large bus he had driven. According to Mr Kerr the door closed without warning every morning and afternoon that the bus was started. Both he and his wife had assumed this was how the door was supposed to operate. According to the Defendant at the time the vehicle was collected by the Kerr's, Paul McGavin spent approximately one hour explaining the workings of the bus including the working of the pneumatic controlled entry door. The door was controlled by open and close buttons located next to the drivers seat with a further emergency button inside the bus above the door in the stairwell area (photo 10). In addition external open and close buttons were located under the front corner of the bus. The Kerrs were allegedly * shown how to turn off the air so that the door could be operated manually. Manual operations were only necessary if the door was to be continually opened and closed within a short period of time or alternatively when mechanical repairs were needed. Mr McGavin of the defendant explained to Mr and Mrs Kerr the operation of the pneumatic controlled entry door to the bus, pulled open the cover to the air ram and showed her [sic] to turn of the air so as to operate the door manually. He showed them the external open and close buttons which operate the entry/exit door of the bus but it was not working. Repairs were then made to the filter and the door then operated correctly. According to Mr Little of Cardiff Truck and Bus City, Mr Lustmann was also present at the time of delivery and gave instructions to the Kerrs as to the operation of the bus on behalf of Cardiff Truck and Bus City. 9. The normal procedure of the Kerr's at the end of the bus run was to turn the motor off, exit the bus and close the door using the external button. Unless the air ram was isolated it was not possible to close the door manually. However, given small leaks within the system by the next day the air pressure would be depleted. The door could therefore only be opened manually and it was the Kerr's habit to enter the bus in the morning by simply pushing open the door. Once the engine had been started and the air pressure had built up sufficiently the door would obey the last command given by the operator when the close button, was pressed the previous day when the bus was exited. 10. On the said day Mrs Kerr took a mop bucket and detergent with the intent to mop the floor of the bus. It appears she had started the engine of the bus and while it was idling had moped [sic] the floor and was in the process of mopping the stairs when the door closed without warning pinning her by the neck. The force was such that she was unable to free herself. From the position in which she was trapped it was not possible for her to reach the external buttons to operate the door. Mrs Kerr had driven the bus on ten occasions prior to the accident. … 11. On the said day Inspector Keenan attended Nardi Dairy Farm at approximately 11:00 am. He observed that the vehicle involved in the accident was registered on 28 January 1996. The vehicle was a 45 seater bus with registration number MO3342. The keys were located in the ignition with the gear selection lever to the right of the drivers seat in the neutral position and the airbrake lever in the 'on' or 'park' position. Measurements and photographs were taken by Inspector Keenan of the console and the buttons that operated the opening and closing of the doors. 12. Two inspection panels were removed from the section of the dashboard to the left-hand side of the stairwell. This area had a pneumatically operated double acting cylinder with a control block and tubing attached. A pressure switch was fitted to the rod end of the cylinder with each inlet port of the cylinder fitted with a flow control valve. Also connected to the system was a shut off valve upstream of a pressure regulator, the pressure reading on the regulator was observed to be zero. To the rod end of the cylinder a clevis connection was fitted which in turn was pinned to the linkage connected to the access door. Air to the pneumatic system and brakes was found to be provided by a receiver tank, which was located on the drivers side of the bus behind the front wheel. The tank was fitted with three relief valves. Also observed by Inspector Keenan located between the air receiver tank and shut off valve for the pneumatic system was an airline filter, which was located under the bus at the front right hand side. 13. The access door to the bus measured approximately 2 metres in height, 890 mm wide at the bottom section of the door and tapering to 730 mm wide at the top. Secured to the access door framework in a vertical position was a section of stainless steel sheet metal, a lip of the sheet metal protruded 15 mm from the edge and 87 mm in from the door edge at a distance of 1 metre from the first step. Observing the access door of the bus from the outside the door pivoted centrally into the stairwell and concertinaed into the left-hand side of the opening. With the door in the fully closed position the distance between the frame and the edge of the door was measured at 38 to 40 mm variation along its length. When the door was in the open position the distance between the frame and the edge of the door measured approximately 640 mm. Installed centrally to the bus access door approximately 2.45 mm from the bottom of the door was a deadlock. The bus was started and the dash speedometer had a reading of 1767km, the pressure gauge on the dash board for the front and rear maxi brakes read 7.5 to 8 kilos - CM2 when they had reached maximum pressure and the pneumatic pressure regulator for the door control cylinder read between 97 to 100 P.S.I./6.8 to 7 BAR. The door control buttons at the consol next to the drivers seat were both operated and were found to be satisfactory. Air leaks were checked for the said vehicle. With the door closed and the engine off, no leak could be detected in the system near the cylinder. With the door open an air leak was detected at the valve block where the airline from the rod end of the cylinder was connected. 14. The closing operation of the access door was timed at approximately 1.5 to 2 seconds. With the door in the closed position, force was applied to the centre of the door by Inspector Keenan in an attempt to push the door open from outside the bus. It was found that the resistance was too great and that the door could not be opened. … 20. The door opening kit consisting of valve and control systems had been purchased by the Defendant from a New Zealand supplier known as John Gilbert and Co. No modification of the said kit was carried out by the defendant prior to fitting to the said vehicle. The linkage system was designed by the defendant, having been modelled off another manufacturer. The force by which the door closed was excessive at the time of testing by Mr Bentley and Mr Fisher. The tests carried out by WorkCover revealed that the force exerted by the door closing on objects varied from 214 Newtons on an object 340 mm wide to 860 Newtons on an object 90 mm wide where the door was held in line. If the door was allowed to push out and straighten which is the power of least resistance the force on an object of 90 mm was 1,580 Newtons. The equivalent of about 150 kilograms. This force is sufficient to cause significant injury to an adult. A child would be even more vulnerable. Prior to the accident the bus had been serviced by Jim Lumsden [sic][Lustmann], a complaint having been made by Mr Kerr about the operation of the door. 21. The Defendant failed to carry out adequate testing of the door opening/closing mechanism prior to supplying the said vehicle to Alan and Linda Kerr so as to ensure that the force by which the door closed would not affect the health and safety of persons when properly used. Prior to manufacturing the mechanism the Defendant had inspected a bus which had been manufactured by Rogers & Sons Bus Division which had a same or very similar door mechanism installed therein. The Defendant then made inquiries of the bus operator as to the satisfactory working of that mechanism. The mechanism installed in the bus purchased by the Kerrs was modelled on this mechanism. 22. Investigation by the Department of Transport after the incident occurred determined that the door opening and closing mechanism manufactured and supplied by the defendant met all regulations required by the Roads and Traffic Authority of New South Wales. * This is an Agreed Statement of Facts. There is no place in it for an item described as "allegedly", without some further explanation as to why the parties accepted that approach. It does not assist the Court. Submissions - Prosecutor 16 The offences are under s18, which imposes a positive duty on manufacturers and suppliers, to take what steps are necessary to ensure that equipment and plant that are provided to persons to use at work are safe and free from risk. 17 On 29 January 1996 the Kerrs (both teachers), took possession of this bus to be used on a school run. The Kerrs had taken a contract from the Department of Transport. The Kerrs purchased that bus from a company in Newcastle, Cardiff Truck and Bus City. That company only supplied the chassis. The rest of the bus, the seats, the windows, and in particular the door opening and closing mechanism was manufactured and supplied by the defendant company. 18 When the Kerrs took possession of the bus, there was a representative of Cardiff Truck and Bus City present. That representative explained various operations such as the dash controls and the operation of the tacograph. The Kerrs were then handed over to Mr Paul McGavin as a representative of P & D Coach Works to continue explaining the operation of that bus. 19 There was no evidence as to what pressure actually existed on the day that the bus was handed over. Mr McGavin said that the regulators normally were preset by John Gilbert & Co at 6 bar or 7 bar. He did not adjust them as a normal practice and he did not carry out any further tests after the regulator was actually installed. From that evidence there is a strong inference that at the time the bus was delivered to the Kerrs the regulator remained at 6 or 7 bar, which is up near the maximum reading of pressure. 20 That reading at 6 or 7 bar as shown by the tests that Inspector Keenan observed carried out by Mr Turner, meant that the force with which the door closed at that bar was 158 kilos, when it reached the edge of the door. The new regulations introduced by the Roads and Traffic Authority suggest a force of no more than 15 kilos to 30 kilos. To have a force that closed at 158 kilos is of clear potential risk. 21 Mr McGavin did not provide any warning about entrapment. Foreseeability of the risk was high. This is a school bus that has been operating daily, the school run taking about an hour and a half, according to Mr Kerr, to complete. It stops at numerous stops, children alight and enter that bus twice a day. They faced the possibility of entrapment. 22 Being entrapped was one risk that was simply not sufficiently addressed by the defendant company, nor was sufficient consideration given to how a person who became entrapped was going to release himself/herself. One of the modifications made to the bus was to place an emergency open button down on the right-hand side of the door. The position of the external buttons at the time Mrs Kerr became entrapped made it impossible for anyone to release themselves without assistance once they were caught. 23 In the statement of facts there is a number of references to the system that the Kerrs utilised on the day. They noticed and were aware of the fact that the door would close after the pressure had been built up, after 4 or 5 minutes. It is clear that both Mr and Mrs Kerr accepted this as a normal operation of the bus, and indeed that is how the system was set up. There were only two commands the door would respond to: open or close. The bus knobs that operated the opening and closing were located in the driver's console; they were located underneath the front bumper bar, and there was one emergency one. That was the set up because the door opening and closing mechanism depended on the air pressure supplied to the cylinder, the silver arm attached to the linkage mechanism that pulled the door open and closed. It only operated when the motor had been started and pressure had entered the system. Other than that the operators had to rely on the manual system. When the door was fully pressurised it was impossible to manually open and close it unless air was removed from the system. 24 The Kerrs may have been aware that the door closed automatically once the pressure was fully charged. What they were not aware of was the force with which it closed or of the danger if one is entrapped and the difficulty of being able to release themselves without assistance. 25 The tests that Inspector Keenan carried out showed there was no malfunction on that bus. The bus operated as it was set up to operate. It always responded to the last command it heard the night before, that being by the Kerrs when they left the bus, pressing the green button under the bumper bar to close the doors. When it was started the next day it would automatically close. 26 A possible alternative system put to Inspector Keenan by Mr Scott was not the system used by the Kerrs and it is not a system that appears to have been explained to them anywhere, either, in the statement produced by Mr Kerr or in the statement given by Mr McGavin. 27 Inspector Keenan has said that there were two possible scenarios as to how the door closed on that day. There is simply insufficient evidence to form a conclusive view one way or the other on that point. In many respects it does not matter how the door closed. The fact of the matter was it was able to be closed with such force as to cause injury, and it always had that potential from the day it was supplied. 28 It is the day of supply that is the relevant date, and although the nature and circumstances of the accident to Mrs Kerr are relevant in terms of any assessment of the penalty, they are not relevant in terms of assessment of the actual offence itself. 29 It was the omissions of the defendant that are admitted in the plea of guilty, that created this risk that resulted in a most tragic accident. Some very simple steps could have been taken to avoid this accident. Mr McGavin gave evidence about the cost and the ease with which the modifications were made to the system. 30 Turning to other matters, a plea of guilty was entered early and the defendant is entitled to the benefit of entering that plea. There are no prior convictions by the defendant company. 31 The maximum penalty that applied at the time was $250,000. When considering the financial means of the defendant there has been no evidence put before the Court as to the actual income of the company and its profitability, but it is a business that employs 15 people, has been in operation since 1990, supplies between 13 and 15 buses a year, and in Mr McGavin's statement he notes that there were nine buses supplied between October '95 and February '96. 32 The defendant company is of a size that ought not attract the benefit that was given in Robins v CT Plumbing Pty Ltd (unreported; Fisher P; 91/522; 16/12/91). In that particular case a plumber and his wife had incorporated a company and operated their business as a small company. Fisher P chose in that particular case when considering penalty to regard the business entity as if it were an individual. WorkCover relied upon the consideration of that issue by the Full Bench of the New South Wales Industrial Court in Haynes v CI & D Manufacturing Pty Ltd (No 2) [(1995) 60 IR 455 at 457] where the Court accepted there are two strands to the consideration of fines under the OH & S Act. 33 As to foreseeability, the prosecutor relied upon the decision of Walton J, VP in Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (unreported; 98/142;16/8/99). 34 The evidence shows that it is quite clear that at the time this vehicle was delivered on 29 January 1996 it had a system that was a two phase system, the door opened or closed. There was no neutral system provided. At the time it was supplied Mr McGavin is unsure of the force of the door closure. It was not checked. 35 There was evidence about the door increasing speed as it closed. The potential for being caught is one thing. The potential for being caught and not able to free oneself is another. If the door did close with force so it did not rattle or open in transit, there were no other safety features or components built into that door that would have assisted a person who became caught in that mechanism and prevented them from being injured. 36 It was the omission of the defendant to carry out tests at the time it was designed and installed and before it was supplied on 29 January 1996, that was the cause of this regrettable accident some months later. Submissions - Defendant 37 The first point made is that the defendant is one of three bodies that could have been charged in this matter. The first body that could have been charged was Mr Kerr, and the provisions of s19 clearly are applicable in that regard. 38 The second body that could have been charged is Cardiff Truck and Bus City. They supplied the bus to the Kerrs. P&D Coachworks was the subcontractor. The latter put the coach body together, erected it, designed parts of it, but then delivered it to Cardiff Truck and Bus. The delivery at this time did take place, according to the evidence of Mr McGavin, at the premises of P&D Coachworks, but there was pre delivery by Cardiff Truck and Bus City. 39 That pre delivery was not undertaken by P&D Coachworks at all. It was a pre delivery by the supplier of the bus, prior to supplying the bus to Mr and Mrs Kerr. Clearly that means that s18, if it applies to P&D Coachworks Pty Limited, would equally apply to Cardiff Truck and Bus City. The relevance of that is that it is unfair that P&D Coachworks only have been charged. On that issue, the defendant relied upon the principles enunciated by the Commission in Court Session in Nesmat Pty Limited v WorkCover Authority of New South Wales [(1998) 87 IR 312 at 322ff]. In that case, on appeal, it was held that one of the relevant factors in determining penalty was that the absence of prosecution of other parties on whom the then appellant had reasonably relied, underlined the cogency of the argument presented on appeal that the sentence gave rise to a justifiable sense of injustice. That principle applies in this case. P&D Coachworks had designed and supplied a bus in accordance with then existing regulations and design requirements. 40 Mr McGavin did not adjust the pressure and it was not his practice to do so. The defendant took delivery of this kit from New Zealand, installed it, but did not adjust the pressure. The difficulty that arises in this case is that it is not known as a matter of certainly, and certainly not known beyond reasonable doubt, what the pressure was. It was known that it had the potential to have the pressure which was that when it was tested. Other persons had dealt with the bus from the time of supply to the time of the accident. 41 It had been dealt with by the mechanic, Mr Lustmann, who did a 1000 kilometre service on it, and the leaking of air had been raised with him. It was not known what he did to the bus. It was not known with certainty what the operator did with the bus. The operator Mr Kerr, did have an awareness of the operation of the (red) neutralising tap. He gave details of a particular incident. That information ties in with what Mr McGavin says was said to Mr Kerr. When one is dealing with the red tap or switch there is, within one or two inches of it, a pressure gauge with a black knob on top. The Court would be entitled to draw an inference if the person who was taking delivery is shown the operation of the red switch and where it is placed, right beside a black knob with a dial on it, it is more than possible that the person taking delivery would ask for and would receive an explanation of its use. Mr McGavin say that he does not recall what he said when he delivered this bus four years ago as to the operation of that knob. 42 In an incident mentioned by Mr Kerr, there was concern that Mr Kerr thought the bus door was shutting very quickly and he was glad nobody was there when the door shut, but it would have been obviously quite open for him to do something about that concern. He did not raise it either with the mechanic as to warranty or with the defendant. 43 Mr McGavin said that he explained the operation of the pneumatic mechanism. Mr Kerr does, in his statement, say that he and his wife were aware that after starting in the morning the door would just spontaneously shut. 44 Whilst the prosecutor says the end cause of the tragic accident is not really relevant, the defendant says that it is quite relevant. If the operators of the bus were aware, as according to Mr McGavin they were, that the door would go back to the place it was last at, without pushing any of the relevant buttons, when the engine recharged the pneumatic system, the system of work then put in place by the operators is not something that falls at the feet of P&D Coachworks. There is no suggestion that P&D Coachworks advised Mr and Mrs Kerr as to its view of the best way to operate the door. The system of work was one which was developed by Mr and Mrs Kerr. 45 The system of opening and shutting the door was one that was common. The statement of Mr Boon shows that the system that was put in place by P&D Coachworks was not a unique, unusual or even first time system which had a feature relating to the automatic closing of the door. 46 Inspector Keenan agreed in cross-examination that within the industry there was an almost universal response of surprise that the Occupational Health and Safety Act applies to the components being constructed for buses. The industry seemed to be of the view, prior to this matter, that the regulations propounded by the Department of Transport and also the Australian Design Rules were what they had to comply with. Whilst ignorance is not an answer on the question of guilt or otherwise, it is relevant on the issue of culpability. 47 It is not until after this accident has occurred that a focus of attention seems to have been developed with regard to safety on front door only buses. After this, as part of the agreed documents, there was a report of Professor Henderson dated August 1996. The Professor seems to be able to find seven cases of front door incidents. Apart from this fatal accident the other incidents would appear to have been of a far less serious nature. For Mr McGavin, who has been in the industry for 28 years, this is the first occasion the defendant was aware of where an injury of this severity has occurred as a result of a front door only bus. That goes to the issue of foreseeability. 48 The question of foreseeability is also affected by how the accident finally happened. There is no way that a conclusive determination can be made as to how this accident happened. There are one or two ways it could have happened and one of them does not relate to the feature of the door mechanism when charged and automatically shut. That is significant in trying to foresee whether or not a person could find themselves in the position or anything like the position that the deceased found herself in and the injury that occurred to her. 49 On the question of design, the summons is very specific. It deals with the testing of the design of the linkage. Mr McGavin says photograph 91 may well be a photograph of a bus linkage but it is not the bus linkage that his employees copied. He says the linkage shown in photograph 62 is the linkage that was copied, not similar or modified, but he says copied from the bus that he inspected with a similar opening door mechanism when he started to build these types of buses. There had been no complaint from any of the operators of the seven buses built by the defendant as to the operation of this linkage and the mechanism of opening and shutting the door. 50 It is relevant in looking at s18 that the Court would have regard to the resources of a company that employed 15 people manufacturing roughly 15 buses a year. The Court will have regard to whether or not they have done adequate testing in, firstly, going to another established bus and copying what that bus had in it and producing seven buses, having no complaint in relation to any of those buses. Therefore that would constitute in anybody's mind a form of testing of the system: seven operational systems and no complaints. 51 This is not a situation in which P & D Coachworks had developed a linkage from scratch and then placed it without further testing in its buses. This is the end of a chain, not the beginning of a chain. 52 With regard to mitigation, the existing principle of the nature and quality of the particular offence is still the cornerstone on the issue of penalty. Mitigation looks to matters such as an early plea of guilty. This is not a case where this defendant is bending to the inevitable and there should be some real benefit given to the early plea. 53 The defendant has co-operated quite considerably with WorkCover post accident and recalled buses of a similar kind and modified them. They have been redesigned again and the defendant put more features into new buses from that point onwards. 54 The defendant, through Mr McGavin, has shown real contrition and sorrow with regard to the events that occurred. 55 At the end of the day this is a matter which, with all its features, falls within the lower range of culpability with regard to s18 and the potential penalty that can be handed down by the Court. Submissions - Prosecution - In Reply 56 On the day that the Kerrs took possession of this bus there were a large number of things discussed. As new owners it would be very difficult for them to absorb all the information that was given to them on that day by Mr McGavin and again they were aware from operating that bus for three weeks that the door did shut quickly. That is not to say or infer that they were aware of the force with which the door closed and the consequences if a person became entrapped by the door closing with that force. 57 In terms of the unfairness of the charging only of P&D Coachworks as opposed to any other defendant, the prosecutor asked the Court to consider this: it was the door closing mechanism that posed the potential risk to both the operators and the children or other persons who were using this vehicle; it posed a risk in that the door closed with an uncontrolled movement; it posed a risk because of the pressure and the speed and the multiplier effect of it as it approached the end of the closure which resulted in increased force. The speed was 1.7 seconds to close. 58 Part of that system had been imported from New Zealand but the design, the fitting of this particular bus with that linkage system was all carried out by P&D Coachworks. It was not carried out by Cardiff Truck and Bus City, it was carried out by this defendant. It was this defendant who designed, configured, assembled and put in place the door lever mechanism, the door itself and all of the configuration around that door opening and closing. It was this defendant who devised the on and off switches and their placement on this particular vehicle. Consideration 59 The Act, in s18 dealing with the responsibility of manufacturers, suppliers etc to ensure health and safety as regards plant and substances for use at work, provided, as at the time of the accident that resulted in these prosecutions, insofar as is now relevant, as follows: (1) In this section: … manufacture includes design. plant for use at work means any plant designed for use or operation (whether exclusively or not) by persons at work, and includes any article designed for use as a component in, or an accessory to, any such plant. … supply , in relation to any plant or substance, means supply the plant or substance by way of sale, transfer, lease or hire, whether as principal or agent for another. (2) A person who manufactures or supplies any plant for use at work or any substance for use at work shall: (a) ensure that the plant or substance is safe and without risks to health when properly used, (b) carry out or arrange for the carrying out of such research, testing and examination as may be necessary for the purpose of the discovery and the elimination or minimisation of any risks to health or safety to which the plant or substance may give rise, and (c) take such steps as are necessary to make available in connection with the use of the plant or substance at 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 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. … (4) Nothing in this section shall be taken to require a person to repeat any research, testing or examination which has been carried out otherwise than by him or at his instance, in so far as it is reasonable for him to rely on the results thereof for the purposes of this section. (5) A requirement imposed on any person by any of the provisions of this section shall extend only to things done in the course of a trade, business or other undertaking carried on by him (whether for profit or not). (6) Where a person manufactures or supplies any plant for or to another on the basis of a written undertaking by that other to take specified steps sufficient to ensure, so far as is reasonably practicable, that the plant will be safe and without risks to health when properly used, the undertaking shall have the effect of relieving the first-mentioned person from the requirements, in relation to the plant, of subsection (2) (a) to such extent as is reasonable having regard to the terms of the undertaking. 60 The defendant pleaded guilty to the two charges. Having reviewed the agreed facts I am satisfied, after some consideration, that the pleas of guilty were properly made. I now turn to the question of penalty. 61 The defendant was a sub-contractor to Cardiff Truck and Bus City (Cardiff). Cardiff supplied the running gear, chassis, wheels, and engine. The defendant built the external shell of the bus and installed the fittings eg seats, doors including the door opening mechanisms. The defendant's usual practice as to the delivery of a new bus, was that Cardiff would send up a representative and Cardiff would take the vehicle and usually get the bus pre-delivered in its own workshop and take it out to the customer. 62 On this occasion Mr Kerr wanted a vehicle for school, but because Mr Kerr did not have time to go back down to Newcastle to be pre-delivered, it was pre-delivered in the defendant's workshop by a specialist serviceman from Cardiff. Cardiff sent up a representative to hand over the vehicle to Mr Kerr at that workshop. The defendant did not have anything to do with the pre-delivery in which Cardiff checks the oil, puts water in it, makes sure everything is running properly as far as the chassis is concerned and usually taking the vehicle for a drive. 63 The defendant makes between 13 and 15 buses per year. Those buses range in size from 40/45 seats to 51/61 seats. It employed around 15 employees in 1995, when the Kerr's bus was made. 64 Inspector Keenan said that the nature of the risk that presented itself on 19 February 1996 to Mrs Kerr was a combination of factors: the pressure or force of the door closure, the speed of the door closure, the possibility of being trapped between the door and the point where the door closed on to, and the inability to reach a button to release the door when so trapped. 65 His evidence was that the closing speed was somewhere between 1.5 and 2 seconds, the average being roughly about 1.7 seconds over a distance of 640 millimetres (around two feet). That was the time it took for the door to commence to shut to the time it completed shutting. It probably started off a little bit slowly and sped up towards the end of the closure. He considered that speed to be fairly quick compared with later reductions in pressure which brought the speed down. 66 The defendant bought the components that made up the door closing mechanism from a New Zealand firm, John Gilbert & Co, for each of the 13 to 15 buses it made each year. In each case when that pneumatic system was delivered the pressure regulator was set at 6 to 7 bar. The defendant had not changed that setting. 67 Some 6 to 12 months earlier, at the time when the first of seven similar vehicles was built, P & D Coachworks Pty Ltd had required a linkage to operate a jack-knife door from the front side of the door, and the Parsons and Barry bus, which had been manufactured by another manufacturer, had a similar linkage to that which was required. Mr McGavin had enquired from the owner of this vehicle how reliable and trouble free the door was and was told that, in their opinion, the door had caused no problems. (That company's pneumatic system was not identical to that installed in the Kerr's bus, though no point was made as to that difference in these proceedings.) 68 That linkage mechanism, though similar, was not the same as that in photograph 91, that being the Rogers mechanism examined by Inspector Keenan in Brisbane. I do not see Inspector Keenan's evidence as being relevant on that point, in that the actual model for the defendant's door closing mechanism was not examined nor was it subject to any evidence from WorkCover. Examination of the copied linkage may have been relevant to ascertain just how reasonable it was for the defendant to rely on the experience of the Parsons & Barry Bus Service in using that particular linkage. 69 The same type of door mechanism used in the Kerr's bus had been used in seven buses made previously. No complaints as to its operation had been received. 70 Mr McGavin described the linkage as being a very basic linkage which, to his knowledge, had been trouble free in the past. The defendant had not conducted tests of the door forces because under the then current Australian Design Rules such testing was not required. The design of the door closing pneumatic system as it operated in the Kerr's bus was also acceptable under those Rules. He said that as far as he knew, the mechanism of the door coming back to its last command position was a feature of most doors. He had explained that aspect of the operation to Mr and Mrs Kerr. 71 Prior to this accident, he had not, in 20 years in the industry, heard of anyone being caught in the front door, although he was aware of incidents involving the rear door. 72 In an interview with Inspector Keenan the following exchange occurred: Q. Was the company aware that if the bus door were to close on part of a person's body the door could not be pushed open by hand? A. Being a front entry and exit door, I was of the opinion that the driver would have control of the door from the driver's position to control the opening and closing should the door close onto a person's body. 73 In answer to Mr Scott, Mr McGavin said: Did you in your 28 years of experience see any difference between the risks of a central and rear door to that of a front door for passengers? A. The driver has full control of a front door, they are right in front of their eyes. It is a huge difference, they have to look in a mirror. Q. To see the other doors? A. To see the other doors, yes. 74 Mr McGavin said that the main thing brought to his attention as to doors by operators over the years was "that they didn't whistle and didn't rattle and didn't open up". 75 Mr Goudie said the force of 1500 Newtons when the door was in a closed position was high, but he also said that it is important to ensure the force is at such a level that the door would not blow in when the vehicle is in motion or from wind pressure. 76 Mr Boon said that the effect of door linkage [as shown to him in the bus in question] "would create extreme force, the linkage as designed has a multiplying effect and the amount of multiplication getting greater and greater the closer the door was to being fully closed." He said the reason why linkage of that design would have been used was: Yes, the industry has long had problems with doors that rattle and vibrate whilst the vehicle is travelling and doors that are affected by side winds. This linkage would certainly overcome all of those problems, remembering that a bus spends most of its time travelling with door closed and that door problems have been a major source of annoyance over the years. 77 Mr Boon said, in relation to a door closing pneumatic system which allowed a door to close by itself, that "Recent history tends to suggest that this is not a safe system, however, ever since I have been in the industry I have heard stories where drivers have first thing in the morning started their vehicles and whilst the engine is warming up left the vehicle to undertake other chores, only to find on their return to the vehicle that they are locked out of their own vehicle and the controls to re-open the door are inside. This has been an industry problem for more than 25 years, whilst it has been a problem for 25 years I've never heard of it or considered it a safety problem". He said that Custom Coaches has found it extremely difficult to develop a door system that closes with limited force and will operate on all terrains, which includes uphill and down dale and which is reliable and failsafe. 78 Mr McGavin talked with WorkCover about modifications and suggested what could possibly be done straightaway for those buses already operating, because the defendant's main objective was to make sure it did not happen again. In relation to the modifications the defendant firstly sent a letter out straightaway to all the bus operators supplied by it which had a similar door system to notify them to operate the door differently when they got out of the vehicle. Then it went round to each bus and modified each one. The modifications that were made were not costly. The main difficulty was the time needed to locate the vehicles. 79 Within a week of the accident involving Mrs Kerr, the following changes were made to make the door system design safer: A neutral control switch is fitted on the drivers console to enable the driver to release the air in the door system to manually operate the door. An emergency open button is the only control fitted to the exterior, therefore to close the door from the outside can only be done manually. A sensitive nosing rubber has been fitted to the leading edge of the door so that when the door is closing on an obstruction the nosing rubber will depress and pressurise a switch connected to the pneumatic system which will automatically return the door to the open position. 80 The modifications meant that the operators had to turn the open button on before getting out of the bus, operate the dump button from outside and, the next day, after pressure built up, the door responded to the last command, that being to open, the reverse of the previous system. 81 The modifications made by the defendant were different for the 7 existing buses, (built in the previous 6 months) from those made to vehicles manufactured later. The air dump button was not placed on the driver console, but on the outside between the door and the wheel arch. The defendant reduced the pressure down to 4 bar from 6.8 or 7 bar as had been suggested to it by WorkCover in discussions. 82 Extracts from Inspector Keenan's report for the Coroner in relation to Mrs Kerr's death are set out below: The investigation which was conducted into this accident was exhaustive and highlighted many different aspects relative to the accident occurrence, as well as deficiencies with bus door safety standards throughout NSW. … Comments made by manufacturers during the investigation were that, a reasonable amount of force would be required to prevent a bus door rattling/vibrating or blowing open from wind pressure whilst travelling, these problems apparently being a constant source of annoyance to bus operators for many years. It would appear that the problem of bus doors closing by themselves and persons becoming trapped in closing doors whilst alighting from a bus has been an industry problem for the last 25 years, however, until recent times it would appear these problems have not been considered an issue until people have been killed as a result. … There are no Australian Standards that deal specifically with the closing force of bus doors. The only Austalian [sic] Standards located that deal with the closing force of doors relate to the door closing forces in fixed applications such as in lifts and automatic or revolving doors in buildings. These Standards recommend maximum door closing forces of between 110 and 130 Newtons (approx 11 to 13 kilograms). … Inspections of the bus involved in the accident by Roads and Traffic Authority Vehicle Inspectors on the 19 February 1996 and 14 March 1996, revealed that there were no breaches of their regulations or the Australian Design Rules, in relation to the construction of the vehicle. … In relation to the manufacture of the bus involved in the accident and the door closing system which inflicted the injuries to Mrs Kerr, at present it can be clearly seen that there is no uniformity within the industry or standards relating to the operating controls or systems associated with bus access doors. 83 There are two safety aspects to the open and closing mechanism of the doors. On the one hand there needs to be enough pressure to prevent the doors opening unintentionally and allowing passengers to fall out while the bus is being driven. On the other hand, there needs to be measures to counter the dangers of people being trapped in those doors because of the pressures needed to keep them closed. 84 It seems to me that there is more than one dimension in relation to deterrence to be considered in this matter. One relates to the industry generally as to the safety aspects surrounding pressures in door closing systems in buses, another goes to the knowledge of the responsibility of manufactures and suppliers for safety in accordance with s18 of the Act and a third in relation to this specific defendant. 85 The first matter has been addressed. Following this accident, the matter of maximum door closing pressures for new and existing buses, has been further considered by the relevant authorities. Inspector Keenan's report for the coroner stated that: Following the accident to Mrs Kerr a Safety Alert was issued by WorkCover NSW and a working party formed to look into bus door closing pressures, this group comprises representatives from WorkCover, Roads and Traffic Authority, Department of Transport and the Bus and Coach Association. Recommendations from this working party as well as the latest report from Dr Henderson are currently with the Bus Safety Advisory Committee for their action, this committee comprises representatives from Department of Transport, Roads and Traffic Authority, Police, Bus and Coach Association, NRMA and Sydney Buses. … At this point in time deficiencies which exist with the current Australian Design Rules and Motor Traffic Act and Regulations relate to the lack of specific requirements for the forces and pressures which may be present with bus door operation, as well as the lack of any specific requirement to have a failsafe door system which cannot trap or injure a person if they are caught. The bus door safety problem is being addressed at present by the Department of Transport and the Roads and Traffic Authority in relation to safer systems for new and older model buses. 86 As a result, the Motor Traffic Amendment (Bus Safety) Regulation 1997, which came into effect on 1 August 1997, was made under the Traffic Act 1909. One of the objects of that Regulation was to make specific provision to limit the maximum door closing force of existing registered buses in order to reduce the possibility of passenger entrapment by a door. That Regulation also contained in r136C door requirements for buses registered before 1 August 1997. 87 As to the second issue, Mr McGavin in 1995 had no knowledge that the OH&S Act had any application to the manufacturing work undertaken by the defendant. Neither Mr Goudie nor Mr Holmes, despite their extensive backgrounds in the industry, including Mr Holmes' specific involvement with passenger safety, had been aware, prior to Mrs Kerr's accident, that manufacturers and suppliers of plant were required to comply with s18. Mr Boon, the Chief Engineer of Custom Coaches, a man consulted by various bus safety advisory committees, and responsible for the legal compliance and certification of his Company's vehicles told Inspector Keenan that "until just recently [1996] I was not aware of this specific [OH&S] Act and it had not occurred to me that a vehicle had to comply with WorkCover rules in addition to the normal R.T.A. rules and ADR rules". 88 The general knowledge of manufacturers and suppliers as to their responsibility pursuant to s18 to ensure health and safety as regards plant for use at work appears sadly deficient. However, I do not see that the circumstances revealed in this case to be such that would justify making this defendant a particular example to the remainder of the bus manufacturing industry in New South Wales. On that point what was said by Schmidt J in WorkCover Authority of New South Wales (Inspector Barber) v Softwood Holdings Limited t/a CSR Timber Products [(1999) 89 IR 40, at 46] is apposite in this case: I conclude by noting that part of the purpose of penalty is deterrence. In so far as other employers are concerned however, real and effective attention will only be drawn to the type of care which they must take, in this instance in relation to the operation of forklifts, if adequate publicity is given to accidents and the results of prosecutions such as this. Such publicity properly falls to the prosecuting WorkCover Authority and it is to be encouraged. 89 The aspect of individual responsibility and deterrence insofar as the defendant is concerned does raise specific concerns in deciding penalty. 90 As was stated in WorkCover Authority of New South Wales v Waugh [(1995) 59 IR 89], the true measure of penalty lies in the nature and quality of the offence. The matters to be taken into account in imposing a criminal penalty were set out by Kirby P (as he then was) in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (Camilleri) [(1993) 32 NSWLR 683 at 698-699]. Amongst those matters was that the Court must keep in mind, not only the facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender. In Haynes and other cases it has been decided that the defendant is entitled to have taken into account subjective features which mitigate the objective seriousness of the offence including: A) an early plea of guilty B) contrition: expressed/actions C) remedial actions D) co-operation with WorkCover E) ability to pay penalty F) whether the defendant is an individual or corporation G) the defendant's previous industrial record. 91 The fact that rules or standards do not cover a certain area, does not absolve a person or organisation from liability when that person or organisation fails to address a recognised deficiency which ordinary common sense suggests could cause harm. In this case that recognised deficiency was coupled with a general lack of industry recognition that it was a safety problem, rather than simply a nuisance one. 92 Mr McGavin said he felt "terrible" when advised of Mrs Kerr's death the following day. It was the first time anything of that kind had occurred with one of the buses he had manufactured. The practical evidence of contrition was that he co-operated with both the police and WorkCover in the investigation of the accident. The defendant entered an early plea of guilty to both charges. On my review of the material before me, that plea was not one made in the face of the inevitability of conviction. 93 The defendant did not install the linkage used in the Kerr's bus recklessly. It did not independently test it, but adopted one already used in a local bus, having discussed with its owner how reliable and trouble free it had been. 94 The first charge related to the adjustment of the pressure regulator for the door opening/closing mechanism at the date of supply of the bus on 29 January 1996. WorkCover has not been put to proof that the pressure in the system at the time of delivery to the defendant was at 6-7 bar, because of the defendant's plea of guilty. To the extent that an accident may be evidence of a risk, that evidence does not exist in relation to the first charge. There was evidence that pressure at 6 - 7 bar could result in serious injury in the event of entrapment. It has not been proved that that was so on the day of the accident. 95 Inspector Keenan suggested two separate scenarios as to how the accident to Mrs Kerr occurred. I am not in a position to come to any final decision on that point. I do note that Inspector Keenan agreed that the difficulty in getting the children out through the door, experienced by Mr Nardi, the neighbour who first found Mrs Kerr, was not necessarily a difficulty relating to the pressure on the door. 96 Although M Bentley of the RTA (IVR C Lismore) in a memo to the IVR Supervisor, described the accident as a "freak" incident, and I agree that the particular circumstances of it could be so described, the risk itself of entrapment was not one that, in my view, was unforeseeable. 97 It is clear from the material before the Court that at the time of this accident there were in existence door closing mechanisms that would cause the door to reopen if some obstruction was present. Development of such mechanisms had increased following the death of 2 children in 1994 after being entrapped in centre and rear bus doors. 98 As was said in Shannon v Comalco Aluminium Ltd [(1986) 19 IR 358 at 364]: The standard of forseeability is objective, but it is not necessary to show that a reasonable man placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect involved in the happening of the defendant's accident. (See Caledonian Collieries Ltd v Speirs (1959) 97 CLR 202; Malleys Ltd v Rogers (1955) 55 SR (NSW) 390). 99 In WorkCover Authority of New South Wales v The University of Sydney (unreported; CT95/1280; 2/4/97 at 11), Hill J accepted the above statement and also said that "the test of foreseeability is, of course, not whether a lawyer or engineer could reasonably have foreseen the risk which existed but whether or not the ordinary jury person or reasonable observer could have done so". 100 What Fisher P said in Hannah v Ricegrowers Co-operative Ltd (unreported; 90/88; 20/11/90 at 7) in relation to employers can readily be adapted to apply to manufacturers: It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer [in this case, manufacturer] from a failure to [ensure that the plant manufactured by him for use at work is safe and without risks to health when properly used: s 18(2)(a), or to carry out the testing required by s18(2)(b)]. 101 The above decisions, together with other relevant decisions, were considered recently by Walton J, VP in Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (unreported; 98/142; 16/8/99). He said: Whilst the reasonable forseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng , Matter No IRC 3064 of 1997, 12 August 1999 at 39), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and The University of Sydney (at 16). 102 His finding, in that case, that "whilst the accident resulted from a coincidence of events, the occurrence of an accident of this type was reasonably foreseeable", is similarly applicable to this case. 103 In my consideration of penalty I have taken into account the principles of parity and of totality. 104 The contractual relationship with supplying the bus rested between Mr and Mrs Kerr and Cardiff Truck and Bus City. The defendant company was a subcontractor to Cardiff, that being the company that the bus had in fact been ordered from. The defendant was given the subcontract for building the body. The defendant's representative in conjunction with a representative from Cardiff Truck and Bus City jointly delivered the bus. 105 Mr Kerr told Inspector Keenan that he had an incident in Byron Bay some time before the accident about the doors shutting unexpectedly which caused him concern about the speed of the door shutting. He had not told the defendant. 106 Mr Kerr was not charged under s19 of the Act, nor was Cardiff Truck and Bus City charged under s18 of the Act. 107 Equality of treatment in terms of the relative seriousness of an offence is an obvious and well known concept in matters of this nature, otherwise a disadvantaged defendant could reasonably feel aggrieved [in cases where only one out of a number of possible defendants had been prosecuted] (see Camilleri's Stock Feeds [(1993) 32 NSWLR 683 at 689) and Nesmat v WorkCover [(1998) 87 IR 312]). 108 As was stated in WorkCover Authority of New South Wales v Waugh [(1995) 59 IR 89 at 100], the principle of totality allows a Court in sentencing to avoid a straightforward arithmetical addition of sentences appropriate to each individual offence where the offences where the offences are similar, thus avoiding doubling of the penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence. 109 The plea is at the date of supply, that is 29 January 1996. Some 3 days later, on 1 February 1996, the penalties were significantly increased from what is the maximum penalty available to this Court in this case being that of $250,000 to $500,000. 110 On the basis of the evidence, the defendant, when penalty is being considered, is properly to be seen as coming within the corporate strand as described in Haynes v CI & D Manufacturing Pty Ltd (No 2) (Haynes) [(1995) 60 IR 455 at 457]. The defendant remains in the business of manufacturing coach works for buses, including Cardiff. It employs about 15 employees making in the order of 15 buses per annum. 111 I would place these offences in the low to middle range of offences. At the time of the offences the maximum penalty available to the Court was $250,000. 112 I find the defendant guilty and enter convictions in relation to both charges. 113 Having taken into account the objective and subjective factors as to penalty discussed in cases such as Camilleri and Haynes, and applying them to the particular circumstances in this case, I fine the defendant $25,000 in relation to the first charge and $10,000 in relation to the second, with a moiety in each case to the prosecutor. 114 If the parties are unable to agree about costs, they may make further short submissions on that issue. ----------------------- 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.