Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Kenneth Vassell v Boral Construction Materials Limited [2004] NSWIRComm 201 PROSECUTOR: Inspector Kenneth Vassell PARTIES : DEFENDANT: Boral Construction Materials Limited (ACN 000 614 826) FILE NUMBER: IRC 1748 of 2001 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - prosecution under section 15(1) of the Occupational Health and Safety Act 1983 - first offence - unsafe loading operation - fatality - failure to wear seatbelt - general and specific deterrence - penalty imposed - costs ordered LEGISLATION CITED : Occupational Health and Safety Act 1983 Inspector Kenneth Vassel v Boral Construction Materials Limited [2004] NSWIRComm 29 CASES CITED : Inspector Mason v Country Energy [2003] NSWIRComm 206 Inspector Russell Webb v Nowra Truck & Farm Equipment (Holdings) Pty Limited and Ors [2004] NSWIRComm 78 Inspector Amanda Templeton v Pirelli Cables Australia Limited [2003] NSWIRComm 177 HEARING DATES: 07/09/2004 DATE OF JUDGMENT: 07/20/2004 PROSECUTOR: Ms PE McDonald of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr AL Hill of counsel SOLICITORS: Hunt & Hunt JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 20 July 2004 MATTER NUMBER IRC 1748 OF 2001 INSPECTOR KENNETH VASSEL v BORAL CONSTRUCTION MATERIALS LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 Judgment in this matter was given on 27 February 2004 (Inspector Kenneth Vassel v Boral Construction Materials Limited [2004] NSWIRComm 29). The defendant was found guilty of the offence charged under s15(1) of the Occupational Health and Safety Act 1983 ('the Act'). This judgment deals with penalty. It was common ground that the maximum penalty for this first offence was $550,000. 2 The defendant called further evidence from Mr Robert Hindley, the defendant's General Manager, Human Resources; Mr Paul Laycock, the defendant's Sydney Metro and South Coast Contracting Manager; Mr Robert Angus, General Manager for Boral Transport NSW and Overlay Manager for Boral Transport nationally and Mr Richard Coleman, Health and Safety Manager. Only Mr Coleman and Mr Laycock were required for cross examination. 3 Mr Hindley's evidence went to the defendant's co-operation with the prosecutor in its investigation. 4 Mr Laycock's evidence went to how the defendant enforced its safety policies, including the seatbelt policy, at weekly metro meetings, toolbox meetings held on site on a weekly basis and at quarterly safety meetings. 5 Mr Laycock described how managers dealt with failures to adhere to the seatbelt policy in the asphalt area, which involved a report; a warning letter and a written warning being given to the employee. After three such warnings, the employee may be dismissed or other disciplinary action taken. 6 Mr Laycock described ongoing investigations into a new type of seatbelt and safety seatbelt switches, which prevent machinery being started, without a seatbelt being done up. In 2003, an audit was conducted which resulted in all rollers which could not be operated effectively when wearing a seatbelt, being withdrawn from service. He also described work undertaken by Mr Vella, the Heavy Haulage supervisor, to develop training and assessment courses for drivers who operated low load floaters. They were implemented in 1999 and follow up courses conducted by outside trainers in 2001. In 2001, the defendant engaged external contractors to undertake its heavy haulage of large equipment. 7 Mr Laycock otherwise described the training which the defendant's employees undertake, including assessment and recording of such training. Supervision of work, in that context, was also described. 8 His evidence also went to how the defendant conducts risk assessment and hazard identification, in the context of external tenders for work. Its Site Safety Environmental Management Plan was outlined, in the context of its business of the paving of asphalt surfaces. How supervisors guide employees through a 'Hazard Identification and Site Occupational Safety & Environment Induction Checklist' was explained, as well as its operation on a daily basis. Hazard identification and removal was also explained. 9 Mr Angus' evidence also went to the Boral seatbelt policy, first launched in 1996, which was reissued in 2000, with minor wording changes. He also described how in 1998, seatbelts in the truck fleet were replaced, in order to alleviate driver discomfort. The policy was again reviewed in 2003 after the death of an agitator driver in Victoria, who had not been wearing his seatbelt. In 2003, a high visibility comfort cushion was introduced, in order to underpin the programme of seatbelt wearing and enforcement. 10 Mr Angus also described the steps taken to ensure enforcement of the policy in the transport group, which included letters sent to employees at their homes; by group meetings at depots; and by new audit reports. 11 Mr Coleman's evidence went to the diverse undertakings in which the Boral group of companies is involved, comprising some 173 controlled entities in a variety of industries. Some 3,500 people are employed nationally in two divisions, Construction Materials and Cement. Boral Asphalt has some 35 plants nationally. The defendant employs some 406 employees in New South Wales. 12 Mr Coleman described the centralised safety structure in operation at Boral prior to March 1999. Dr Maggie Goldie then headed the Central Safety Group in which some 23 health and safety professionals were employed. There was power to recommend and advise about safety matters, but not to change plant and procedures at Boral plants at that time. Safety was measured by 'lost time injury frequency rate' and by the conduct of formal audits. The group also developed detailed safety manuals. 13 At the Boral Asphalt plant at Greystanes, a safety adviser was also then employed, responsible for advising on compliance with safety legislation. The defendant's safety culture was described as being reactive at that time, with injuries driving safety measures and risk identification. A result of the accident here in question was that the defendant thereupon ceased loading and unloading steel drummed rollers onto steel ramp floats. 14 As the result of the 1998 review, management of safety was decentralised by Boral. This decision was reviewed in 2002. The review showed improved ownership of safety issues within operating divisions and businesses. Good practices had developed, as well as 'leading edge' safety activities in some areas. There was a resulting high level of awareness of safety requirements among managers and other employees and strong employee support for safety targets and measures. Mr Coleman also explained in cross examination how safety information was shared across the Boral group. 15 In cross examination, Mr Coleman explained that the 2003 review of the seatbelt policy had come about because: A number of issues not least of which was Mr Urquart accident. A dawning realisation that perhaps the most significant risk that Boral faced, the most significant fatality risk around the country is the failure particularly of heavy vehicle operators to wear seat belts. The fact that the enforcement of heavy vehicle seat belt wearing appears to have somehow slipped through the gaps in terms of authorities between the RTA and WorkCover Authority, it is not something that is heavily focused on. Most of the seat belt incidents you see in the country relate to the wearing of a passenger seat belt, the drivers of vehicles - you and I. The fact that we had a fatality in Victoria where a concrete agitator driver was killed and there is some evidence to suggest he was not wearing a seat belt, I am deliberately vague on that because we just do not know, but it certainly was an indication. Again we have a number of pieces of mobile plant, forklifts, front-end loaders, and if there is a piece of mobile plant which exists somewhere within Boral, obviously the wearing of seat belts is critical to us. Q. When you were giving the list of matters which led to the review and the dissemination of the 2003 policy, you spoke about a gap with the authorities and you spoke about the RTA and WorkCover Authority. Was that something you picked up in New South Wales when working on a revision of the policy? A. It is not just New South Wales, it is national. Absolutely when leading up to that when we were talking to various drivers about various safety procedures around the place, when going to the various transport safety information places, in Victoria the Transport Accident Commission probably leads the way in terms of the provision of information about safe driving practices. The heavy vehicle industry has not been targeted in that information provision very well in the past. 16 Mr Coleman also described his current responsibility for overview of safety issues, the reporting lines to him in relation to safety matters and how information is now disseminated. He described the proactive systems introduced to ensure hazard identification and assessment and the Guidelines issued in 2004 to managers, which contain various safety policies which remain the subject of ongoing review, including the seatbelt policy. The cases advanced 17 It was the submission of Ms McDonald, counsel for the prosecutor, that the offence was a serious one where both general and specific deterrence had a role to play in the penalty imposed. General deterrence was emphasised. The evidence showed that the issue of slippage of steel drum rollers when loading onto steel ramps was commonplace in industry, as was the problem of drivers not wearing seatbelts. The evidence led by the defendant as to the deficiency in information generally available concerning the importance of seatbelts in heavy equipment, reinforced the conclusion that general deterrence was here important. As to specific deterrence, it too had some role to play in the penalty imposed. Although the defendant had ceased the particular work which had led to Mr Urquart's accident, it continued to be an employer and its employees performed work which required the wearing of seatbelts. 18 As to the nature and quality of the offence, the evidence showed that the offence was objectively serious. The risk of rollers tilting off a ramp in the loading process was obvious and reasonably foreseeable and was likely to lead to death or serious injury. The risk arose from the system of work the defendant had devised and was exacerbated by the effect of driving over cleats, the presence of damp conditions and driver error. The high risk present was confirmed by the safety assessment conducted after the accident, which showed that the risk was known in industry and to the defendant's drivers. 19 The defendant had sought to manage the risk through training, rather than other practical precautions, directed to eliminating the risk. The evidence also showed that the defendant's seatbelt policy had not been sufficiently reinforced. Mr Shepley's evidence confirmed this. While it might be concluded that Mr Urquart's departure from safe practice was a factor relevant to be taken into account in mitigation, such a departure did not relieve the defendant of its statutory obligations. 20 The death which had here occurred manifested the seriousness of the detriment to safety in question. The evidence also showed simple remedial steps available to the defendant, which were taken after the accident. They included the risk assessment undertaken, which had identified the risks which had manifested and the matters which had exacerbated them; the reduction of the size of the cleats and the formal documented system of training then introduced. It was argued, however, that the evidence showed something of a hiatus in the response taken by the defendant after the accident in relation to the enforcement of its seatbelt policy, even though the work in question was stopped. 21 The defendant's prior record was acknowledged as a subjective matter relevant to penalty. 22 As to the range of appropriate penalty, reference was made to Inspector Russell Webb v Nowra Truck & Farm Equipment (Holdings) Pty Limited and Ors [2004] NSWIRComm 78 where a penalty of $180,000, prior to discount had been fixed, in respect of a case involving a failure to wear a seatbelt and Inspector Mason v Country Energy [2003] NSWIRComm 206 and Inspector Amanda Templeton v Pirelli Cables Australia Limited [2003] NSWIRComm 177, where a penalty of $150,000 and $135,000 had been fixed respectively in cases involving a failure to conduct a proper risk assessment. 23 The case advanced by Mr Hill of counsel was that the defendant would not be singled out and sought to be made an example of, in the penalty here imposed. Proper regard would be paid to the serious attention it had given to safety matters both before and after the accident and the ongoing attention which was particularly paid to the enforcement of the seatbelt policy, in a variety of ongoing ways, as well shown in the evidence. There was no hiatus in the attention given, as the re-issue of the seatbelt policy in 2000 and its further review in 2003, demonstrated. The defendant also had taken various action it was not required to take under legislation regulating the wearing of seatbelts and continued its endeavours to enforce and monitor compliance with the policy. 24 It was submitted that note would also be taken of the fact that it was a series of events, including inadequate set up and not wearing a seatbelt, which together had here given rise to the risk which had materialised in the context of a defendant which had never been cavalier in its approach to its safety obligations. It was relevant that this accident had occurred in circumstances where Mr Urquart was plainly an employee upon whom the defendant was entitled to rely, to adhere to its safety policies. What had led him not to wear a seatbelt would never be known, but it would be accepted that this was entirely unexpected. This was not like the Nowra Truck Case where seatbelts were not worn because it was just inconvenient. It would also not be overlooked that the defendant had thereafter acted to ensure that the work in question was no longer performed and had continued to ensure that its employees were not only trained in safety policies, but adhered to them, by a variety of practical steps taken in an ongoing way, as well as continuing its attention to matters such as driver training and conduct, to ensure that seatbelts were, in fact, worn by drivers. 25 As to range, it was argued that it would not be concluded that this was a case where a penalty of over $100,000 was warranted. The authorities referred to by the prosecutor were not helpful. Comparisons were difficult to draw, given the very different circumstances presented in the various cases to which reference had been made. It was argued that there were features of the offences there in question which, in this case, made a penalty lower than that there imposed, appropriate. Consideration 26 The circumstances in which the defendant was found guilty of the charge are set out in the earlier judgment. It is unnecessary to repeat them. The determination of penalty now requires a consideration of the nature and quality of the offence in question. 27 Disappointingly, yet again this is a case where a fatal risk to safety materialised, despite serious attention paid to safety matters beforehand, by the employer in question. The immediate cause of Mr Urquart's tragic death appears to have been his failure to wear the seatbelt which, on the evidence, would have kept him safe. Most regrettably, the defendant had a seatbelt policy which required the wearing of the seatbelt provided on the roller, when the work of loading the roller onto a floater was undertaken, yet it was not adhered to. 28 That requirement was well known to Mr Urquart. As was the defendant's case, if any employee might have been expected to adhere to that policy, it was he. Not only was he an experienced driver, who on the evidence had been trained in the work in question, he had for many years been employed in managerial positions by the defendant and other entities in the Boral Group. He had himself been a member of the committee which had developed the seatbelt policy, as well as the video which explained the policy and its importance to the defendant's employees. He had also been involved in its implementation. 29 Despite this, Mr Urquart did not wear the seatbelt on the day of the accident. The explanation for this may well have rested in the training which the defendant provided him. The evidence showed that there were drivers in this industry who preferred not to wear seatbelts when loading rollers such as this one onto floats. The person who trained Mr Urquart was himself one of those drivers. So too, it seems, was Mr Urquart, as well as other drivers working for the defendant. This no doubt explains the steps taken by the defendant in the years following this accident, in its ongoing endeavours to ensure that its employees wear their seatbelts. Nowadays, employees who fail to do so ultimately put their continued employment with the defendant at risk. 30 Mr Shepley also gave evidence that the way in which the float had been set up for the loading operation required on the day of the accident, was entirely inadequate and inconsistent with the training which the defendant gave its drivers. Notably, Mr Shepley did not give such evidence in relation to the failure to wear a seatbelt. 31 The risk of a steel drum loader slipping during the loading operation, given the steel on steel nature of the operation, was obvious and well known to the defendant. On the evidence, at the time of the accident, that risk was sought to be managed by the defendant, by the training it gave drivers in set up, rather than by removing the risk. Driver error in that context, coupled with a failure to wear a seatbelt, had tragic and readily foreseeable consequences. The Act obliged the defendant to ensure that this did not occur. The evidence amply showed that training alone could not do so. The risk assessments conducted by the defendant prior to the accident were entirely inadequate in identifying the risks, which the work in question gave rise to. They were clearly identified by the risk assessment conducted subsequently. 32 It must be concluded on the evidence that the risk in question was entirely foreseeable. Training in set up could not ensure safety, given the work required and the risks it involved. That was why adherence to the seatbelt policy was particularly important in the context of this operation, if the defendant was going to meet its obligations under the Act. The defendant failed to ensure that the seatbelt policy was observed, when the work of loading a steel drum roller was performed. 33 The evidence showed that the person in charge of the training the defendant provided, himself adopted an approach which involved a complete failure to adhere to the defendant's seatbelt policy. This was because he believed wearing a seatbelt made the operation of loading the roller onto the float more difficult and dangerous. He believed that he needed to stand up in order to see, so that the work could be performed safely. He could not wear the seatbelt while doing so. Other drivers gave similar evidence. The absence of the risk assessment which the defendant conducted after the accident was, in that context, important in this case. The information it revealed was plainly important for the defendant's employees to be made aware of, given their attitude to the wearing of seatbelts. 34 This attitude was one of which the defendant was obliged to be aware and to deal with, so that its employees' safety was ensured while loading work was being performed. Its failure to do so was a particularly serious one, given the risk which arose from that approach and how the risk materialised, when Mr Urquart also adopted it on the day of the accident. On Mr Senz's evidence, almost every step which Mr Urquart might then have taken to arrest the slipping roller's progress, would only have exacerbated the slippage. There was no realistic prospect that he could have jumped free when the roller then fell. Tragically, the absence of the protection which the seatbelt would have provided him in that situation, had fatal consequences. 35 It is also relevant to penalty however, to consider the evidence of the considerable steps taken by the defendant to investigate safety issues and to address them, prior to this accident, including with the 1996 introduction of a seatbelt policy, which applied even to vehicles which could lawfully be driven under the statutes governing road use, without a seatbelt being worn. That was no doubt consistent with the obligations which the Act imposed on the defendant. The evidence fell short, however, of establishing that the defendant had thereby met the obligation imposed upon it by this legislation. This has oft been discussed in the authorities as necessitating that employers act proactively, so that their statutory obligation to ensure safety will be met, particularly while an obviously dangerous task is undertaken. The evidence of Mr Coleman indicated that after the accident, a variety of further steps were taken by the defendant, in order to ensure that this obligation is met. Those steps are entirely commendable, but also highlight in part what should have been done beforehand. 36 On the evidence the conclusion that this first offence was a serious one, which must be reflected in the penalty imposed cannot be avoided. This follows from the obvious and foreseeable consequences which flowed from the failures which here arise for consideration. Yet again, the Court has to consider circumstances where there is considerable expenditure and effort made by a defendant and those whom it employs prior to an accident, in order to ensure that necessary safety systems and policies are developed and put in place. Despite this, what is developed is not then enforced by the defendant in the necessary practical and ongoing way, day to day on the job, to ensure that the risks to which these measures are directed do not materialise. The result of that failure is the avoidable death of an employee. This, undoubtedly, exacerbates the seriousness of the offence which arises for consideration. 37 The evidence was that the risks inherent in work such as that being undertaken are well known in this industry and despite this, there is a continuing reluctance to wear seatbelts, which persists amongst some drivers, even when dangerous work such as that here in question is undertaken. The need for general deterrence to form a part of the penalty imposed, has thereby been put beyond doubt. This is not to make an example of the defendant, but rather to draw attention to the risk in question and the need for employers to act to remove it, in a necessary way. 38 The evidence was that the prosecutor removed the prohibition notice it had put in place after the accident. Why this occurred was not explained. Despite this, and consistently with its obligations under the Act, the defendant did not resume its former operation. At the sentencing hearing, however, the prosecutor then relied upon evidence called by the defendant about deficiencies in information provided to industry, by the RTA and the WorkCover Authority, about the wearing of seatbelts on heavy equipment such as here in question, in order to provide a foundation for the submission that general deterrence had a significant role to play in the penalty to be imposed. The prosecutor also sought a moiety of the penalty imposed. As a result of that approach, I am satisfied that this is one of those cases where this Court must draw to the attention of the prosecuting authority, the need for it to publicise this prosecution. There can be no doubt at all about the need for the WorkCover Authority to now take active steps to give proper publicity to this prosecution, in the industry concerned. 39 The judgment should be drawn to the attention of both the WorkCover Authority and to the RTA for that purpose. I propose to ask the Registrar of the Court to take the necessary steps to ensure that this occurs. 40 I am also satisfied that the evidence as to the extensive steps taken by the defendant, in relation to safety matters generally and to the seatbelt policy in particular, both before and after the accident in question, reduces the role which specific deterrence has to play in that penalty. This conclusion was also reinforced by the decision taken by the defendant to entirely cease performing this kind of loading work, using a steel ramp float, after the accident. 41 I am satisfied, however, that specific deterrence still has some role to play, given that the defendant continues to employ drivers of its vehicles and equipment and that it has engaged external contractors, to have its heavier equipment moved. The evidence led from such contractors in these proceedings, confirms that conclusion. The defendant, undoubtedly, has its own continuing obligations under the Act in that context too. 42 In assessing penalty I have also taken account of the evidence as to the defendant's record and its co-operation in the investigation into the accident. 43 Having considered the evidence which I dealt with in the earlier judgment and the matters I have here outlined, I am satisfied that an appropriate penalty in the circumstances of this case is $200,000. 44 No question of any discount arises in this case, given that the charge was defended. Orders 45 For all of the reasons given, the defendant is ordered to pay a penalty of $200,000 with a moiety to the prosecutor. The defendant is also ordered to pay the prosecutor's costs of the proceedings, as agreed or as determined in accordance with the Court's Rules. In the absence of agreement, the parties have liberty to approach. 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