Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Neil Buggy v Weathertex Pty Ltd [2002] NSWIRComm 160 PROSECUTOR Inspector Neil Buggy PARTIES : WorkCover Authority of New South Wales DEFENDANT Weathertex Pty Ltd FILE NUMBER: IRC 3805 of 2001 CORAM: Marks J CATCHWORDS : Occupational health and safety - Plea of guilty to breach of s 16 - Experienced contractor solely in charge of unloading of logs on defendant's premises fatally injured when failed to secure the load - Failure of defendant to carry out relevant induction and to monitor compliance with safety procedures - Defendant had established health and safety procedures - Held not a serious breach in all the circumstances - Discount for plea of guilty, contrition and cooperation - Penalty imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 16(1) HEARING DATES: 07/01/2002 DATE OF JUDGMENT: 07/26/2002 PROSECUTOR Mr D Chin of Counsel SOLICITORS Phillips Fox Lawyers LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson SC of counsel SOLICITORS Fisher Cartwright Berriman JUDGMENT: INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Friday 26 July 2002 Matter No IRC 4406 of 2001 INSPECTOR NEIL BUGGY v WEATHERTEX PTY LTD Prosecution pursuant to s 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 The prosecutor Inspector Neil Buggy of the WorkCover Authority of New South Wales has charged the defendant Weathertex Pty Ltd with a breach of s 16(1) of the Occupational Health and Safety Act 1983 ("the Act"). The defendant has pleaded guilty and this judgment deals only with the question of penalty. 2 The parties prepared an agreed statement of facts, the relevant parts of which are as follows: 4. At all material times Weathertex Pty Limited: (a) Was an incorporated company with its registered address at Level 18, Tower Building, Australia Square, Sydney in the State of New South Wales; (b) Carried out hardboard production at premises located at Masonite Road, Raymond Terrace in the State of New South Wales; (c) Employed Mark William Giles, James Edward Smith, Richard Osborne and John Bennett as manufacturing support manager, manufacturing support officer, loader operator, boiler attendant and plant manager respectively; (d) Contracted with K P & C J Barry Pty Limited and others to deliver timber to the premises. 5. Kenneth Barry, 50 years of age, was managing director of and was employed as a truck driver by K P and C J Barry Pty Limited. Mr Barry was not employed by the defendant. KP and CJ Barry Pty Limited was engaged in the business of timber haulage. The company had three trucks. One of the trucks is self-loading which has been used to deliver timber to the premises for the past seventeen years. Mr Barry was the principal driver of this truck. 6. On 18 June 1999 at approximately 3.30pm, Kenneth Barry was removing chains which secured a load of timber logs on the trailer of a truck driven by him and operated by K P and C J Barry Pty Limited which was parked in the log yard area of the premises. A timber log weighing approximately 680kg fell from the trailer and fatally crushed Mr Barry. 7. On 18 June 1999 Inspector Forster made the following observations at the premises: (a) An area at the rear of the premises where deliveries of logs were unloaded ("the log yard area"). (b) The ground was rough compacted dirt with numerous pieces of timber and bark lying on the ground. (c) Parked near the stacks of logs was a 'Mack Tabletop' truck with a 'Dog' trailer attached. On the truck and trailer were stacked a number of timber logs, with a vehicle loading crane fitted to the rear of the truck. The vehicle registration number of the truck was FQL-826 and of the trailer K-49910. (d) At the right hand side of the trailer, looking from the rear, there was a timber log on the ground. This log had apparently fallen from the top of the trailer. It was approximately 1000mm from the trailer at the rear and lying across the back of the deceased approximately 500mm from the front of the trailer. The fallen log was at right angles to and jammed against a stack of logs at the front of the fallen log. (e) The deceased was lying face into the ground with his head against the front wheel of the trailer and his legs doubled up underneath him. (f) The following measurements were taken: Width of 'Dog' Trailer: 2500mm Length of Tray on Truck 6840mm Length of 'Dog' Trailer 6300mm Distance between Tray and Trailer 2100mm Height of Trailer from Ground 1370mm Height of Load from Trailer 1450mm Height of Holding Bars 870mm Height of extension holding bars 570mm Overall height of holding bars 1440mm Approximate height log fell to ground 2350mm 8. On 21 June 1999 I attended the premises and observed as follows: (a) A prime mover and attached dog trailer of a log haulage vehicle parked in a north to south direction, with NSW registration number plates reading FQL-826 affixed to the prime mover and K-49910 affixed to the dog trailer respectively adjacent a stack of logs. (b) A stack of timber logs positioned perpendicular to, and adjacent the front side support wheel of this dog trailer, identified as stack No. 71 by a sign laying on the ground at the west extremity of this stack of logs. (c) One log positioned on general ground level, positioned parallel to and at a distance of approximately 3m from this dog trailer. (d) This log had an overall length of approximately 6530mm with an average diameter of approximately 360mm. (e) Rub marks on this log similar to chain indents, located approximately 1150mm from its south end and approximately 1270mm from its north end. Further rub marks similar to stanchion indents, located 860mm from it south end and 940mm from its north end. (f) Steel stanchions affixed to this dog trailer with outside dimensions of 87mm x 63mm. Steel extension pins located within the upper section of these stanchions, with an outside diameter of 50mm and 5mm wall thickness. The extension pins had been removed from the side of the truck from which the log fell. (g) A vehicle loading crane fitted to the rear of the above prime mover, positioned with its boom extended and resting on the logs loaded upon this prime mover. (h) This vehicle loading crane was identified as a: 'JONSERED 1000' serial number 68062, M/Year 03911', by a name plate affixed in a location adjacent the operator's control station, with a safe working loads of 2379kg, 1630kg and 330kg at reach distances of 4m, 6.2m and 7.6m respectively as displayed on the boom arm of the appliance. (i) A log grab device fitted to the extremity of this boom arm, identified as a '365 Cranab', by lettering on its upper support section. 9. On 21 June 1999 the Prosecutor issued an Improvement Notice number 213937 requiring the Defendant to provide and maintain such systems of information, instruction, training and supervision to eliminate or minimise risk of persons being exposed to crush injury due to the manner of unloading logs from log haulage vehicles within the log yard area of the premises. 10. As a result of the Prosecutor's investigations in this matter, the Prosecutor made the following findings: (a) Mr Barry was managing director and an employee of K P & C J Barry Pty Limited. (b) K P & C J Barry Pty Limited operated the prime mover registration number FQL-826 ("the Truck") and attached dog trailer registration number K-49910 ("the Trailer") from which the log that caused the fatal injuries to Mr Barry fell. (c) Mr Barry had driven the Truck to a property located at 270 Wattley Road, Wootton on the morning of 18 June 1999 and loaded the Trailer with approximately 50 tonnes of timber logs. At approximately 12.30pm Mr Barry drove the Truck and loaded Trailer to the premises. (d) Mr Barry weighed the load present on the Trailer at a weighbridge at the premises at approximately 2.37pm which is within the normal operating hours at the premises. Mr Barry then drove from the weighbridge to a log pile located in the log yard area of the premises. (e) Mr Barry commenced preparing the logs on the Trailer for unloading with the vehicle loading crane in the log yard area ("the unloading procedure"). A copy of a document containing some procedures for unloading logs was available at the weighbridge of the premises. Mr Barry was required to visit the weighbridge to enter details of each delivery into a computer by use of a magnetic identification card supplied by the defendant. (f) A contractor to the Defendant noticed at approximately 3.30pm that the Truck motor was on "fast idle" as it would normally be if the vehicle loading crane was being used. (g) The contractor commented to another contractor after the truck engine had been fast idling approximately one hour that this was "strange". (h) Mr Barry's body was discovered shortly afterwards beneath a log by the two contractors at approximately 4.30pm. (i) The Defendant had not provided Mr Barry with adequate assistance, training, instruction and/or supervision in safe procedures to be employed in unloading timber logs from vehicles in the log yard area of the premises. Mr Barry had attended industry training courses conducted by Training Education and Management Services ("TEMS"). State's Forests required that all contractors attend the TEMS course. (j) No assessment had been carried out by the Defendant concerning the safety and suitability of the plant and machinery used by contractors and/or their employees (including Mr Barry) in carrying out the unloading procedure. Mr Barry was re-inducted into the Defendant's site in March 1999. The induction process required Mr Barry to follow industry standards and codes and its unloading procedure, to maintain equipment in a safe working order and not to use equipment if it would result in risk to himself or others. (k) The Defendant did not properly assess the training and qualifications of contractors and/or their employees carrying out the unloading procedure at the premises. (l) There was no adequate protection or protective equipment provided to Mr Barry while carrying out the unloading procedure (such as a log restraining cage). There is no requirement for protective equipment such as a log restraining cage to be used under the industry code of practice, provided that the load is restrained by an unloading machine or by any other positive form of restraint. (m) The Defendant required contractors to hold appropriate machinery certificates and demonstrate capability in self unloading. Not all contractors demonstrated the capability to self unload to a standard satisfactory to the Defendant. Where the standard was not demonstrated contractors were prevented from self unloading by the Defendant. (n) The Defendant allowed the unloading procedure by contractors and/or their employees to take place without any supervision or assistance, where the contractor had demonstrated capability in self unloading satisfactorily to the Defendant. (o) The Defendant's emergency procedures had been successfully audited under the National Safety Council of Australia 5 Star Safety audit program. (p) The Defendant failed to ensure that its contractors and/or its employees carried out unloading procedures in accordance with the Industry Code of Practice 'Safe Loading and Unloading of Logs'. In particular, the Defendant failed to ensure that Mr Barry restrained the load by the use of some positive form of restraint prior to releasing the load security chains, and that Mr Barry was at a safe distance from the vehicle during the unloading procedure. (q) The stanchion extender pins which were in place when Mr Barry initially loaded the vehicle had been removed at the time of the accident on the premises. The absence of the said pins during the unloading procedure, and the absence of any other positive form of restraint of the load, allowed the log to fall resulting in Mr Barry's death. Unloading logs in the absence of the said pins was not in accordance with Mr Barry's usual practice. (r) The Defendant permitted contractors and/or their employees who had been satisfactorily assessed and approved by the Defendant to enter the premises after usual business hours to carry out the unloading procedure unsupervised and/or without assistance. (s) The Defendant provided contractors and/or their employees when it was requested with machinery (a front-end loader) that may have been used for the safe conduct of the unloading procedure consistent with industry codes of practice. (t) The Defendant engaged experienced and professional contractors and engaged the contractor through an induction process. The Defendant relied upon contractors in instituting safe unloading procedures. 11. In the premises, the Defendant, Weathertex Pty Limited, an employer, breached section 16(1) of the Occupational Health and Safety Act 1983 on 19 June 1999 at premises located at Masonite Road, Raymond Terrace in the State of New South Wales, in that it failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work. In particular, the Defendant failed to provide a system of work that was safe and without risks to health for the unloading of logs from vehicles (including the preparations for unloading) at the log yard of the premises. 3 The WorkCover Authority of New South Wales released a Code of Practice dealing with the safe loading and unloading of logs on 16 January 1995. This became an approved Industry Code of Practice as contemplated by s44A of the Act. Breach of the Code of Practice does not of itself constitute an offence, although the failure to observe the Code of Practice may be used as evidence that the Act has been breached. 4 In dealing with the unloading of logs the Code of Practice provided, relevantly, for the following: "3.5 Load security chains are to be released from within a log restraining cage. 3.6 If no log restraining cage is available, load security chains are to be released only when the load is restrained by an unloading machine on the load binder side, or by any other positive form of restraint. 3.7 It is possible for a top log of a load to fall off when the freed securing chain is pulled from the jinker. Top logs may shift during transit and as a result they can be unstable. The driver can lessen the risk of injury if this should happen by: (a) walking away from the jinker, pulling the freed chain over the load, onto the ground; (b) pulling the chain from under the jinker so that the chain travels away from the driver. Both methods will ensure that the driver is away from the danger areas (approximately 2 metres from both sides of the jinker) should a log fall." 5 In addition to the agreed statement of facts and photographs tendered in the proceedings, the defendant also tendered affidavits of Paul Michael, Reginald Robert Anderson, James Edward Smith and David Simpson. 6 Paul Michael is the General Manager and a director and shareholder of the defendant. He acquired the business operated by the defendant from CSR Ltd on 1 November 1998. Prior to the accident giving rise to these proceedings there had been displayed in the weighbridge which all drivers transporting logs had to pass through two safety documents entitled "Log yard Procedure" and Front End Loader Operation in the Log yard". The log yard procedure document covered a number of areas. In connection with the unloading of logs the procedures seem to be confined to unloading operations where a front-end loader is utilised. 7 When the business was acquired from CSR, existing occupational health and safety policies together with related manuals and procedure documentation continued to be utilised. In addition the National Safety Council of Australia had conducted annual safety audits of the operations for many years. At the time of the acquisition Mr Michael satisfied himself that appropriate safety procedures were in place. After acquisition the National Safety Council of Australia continued to conduct safety audits and the operations received the highest rating achievable from that organisation. 8 Mr Michael's affidavit also contained some additional information concerning the deceased driver, Mr Barry and his company. That company provided similar transport services to a number of other organisations. Mr Barry was considered to be a very experienced contractor who had been delivering and unloading logs at the Weathertex site for at least 17 years. It was estimated by Mr Michael that he had delivered approximately 2,200 loads to the Weathertex site without serious incident during this period. 9 After the accident occurred Mr Michael arranged for two internal inquiries to be undertaken into both the causes of the accident and into what steps the defendant needed to take to ensure that an accident of this kind did not reoccur. The results of these investigations both came to the same view that Mr Barry was solely involved in the unloading process and that the log fell because he had removed the two driver's side stanchion extension pins on the trailer before removing the chain which held the load. Once the chain had been removed there was nothing to hold the logs in place. The members of the investigating teams speculated that the only reason why the deceased would have removed the extension pins was to reduce the amount of unloading time because the travel time of the crane would have been lessened without the extension pins being in place. 10 James Smith is the defendant's Safety Manager commencing employment in 1998. He had previously been employed by CSR since 1987. 11 On 19 March 1999 Mr Smith had conducted a safety induction programme for contractors who delivered logs to the defendant's log yard. Mr Barry attended that induction. Mr Barry was given a document entitled "Contractors' Safety and Insurance Requirements" which he was required to read and to discuss. Mr Barry signed a document acknowledging receipt of the booklet and agreeing to comply with its contents. That booklet dealt with a number of subjects, predominantly related to the factory operations carried out by the defendant. It did not contain any reference to the unloading of log trucks. 12 Following the accident and the production of the reports of the two internal inquiries initiated by the defendant a number of recommendations were made which were adopted by the defendant. Specifically there is now included within the Contractor's Safety and Insurance Requirements booklet a reference to unloading log trucks. This requires the positive restraining of logs with a front-end loader before a chain is loosened, and other similar matters. It also requires adherence to the Industry Code of Practice. Since the accident the annual induction of contractors including drivers of vehicles delivering logs has been changed by explaining and providing a copy of the Code of Practice to each contractor, setting out the details of new procedures for the unloading of logs and imposing a requirement for drivers to sign in prior to unloading and signing out at the completion of the unloading operation. The induction also entails the giving of much more detail to contract drivers of a number of matters pertaining to the unloading operations as well as the requirement to complete a theoretical examination and to unload a fully loaded truck in accordance with the provisions of the Code and the company's procedures to the satisfaction of the Safety Manager. 13 The evidence tendered on behalf of the defendant is to the effect that the defendant has at all times maintained a strong commitment to a comprehensive occupational and safety programme backed up by annual audits. The defendant has, in my opinion, reacted appropriately to the circumstances of the accident which has given rise to these proceedings in that it has caused extensive inquiries to be carried out as to why the accident occurred and has taken a number of measures designed to minimise the risk of any further accidents of this kind occurring in the future. 14 The defendant through its counsel Mr Hodgkinson SC indicated that it pleaded guilty solely because of the absolute nature of the obligation imposed by s 16 of the Act. In essence, Mr Barry was able to attend to the unloading of the logs from his company's vehicle in a safe manner without the assistance of any other person or equipment. This is because the unloading could be undertaken by using the crane attached to the vehicle. Accordingly, in a pragmatic sense Mr Barry was solely in charge of the operation and on the basis of the evidence I infer was the only person involved in attempting to unload the vehicle at the time of the accident. Mr Barry was an experienced and long-standing driver familiar with the defendant's operations and site who had performed the same operation on many occasions. The defendant at the date of the accident had an induction procedure in place and was conscious of its occupational health and safety obligations. On one view of it, the defendant was entitled to assume that Mr Barry was able to carry out the unloading operation safely and without any supervision or assistance of any kind. 15 Mr Chin of counsel who appeared for the prosecutor articulated the failure of the defendant to comply with the provisions of s 16(1) of the Act relevantly in the circumstances as being a failure to provide to Mr Barry an express instruction through an induction programme that he should not have removed the chain without the extension bars remaining in place or otherwise securing the load through the use of the crane attached to the truck or through the services of a front-end loader. Furthermore the defendant should have monitored adherence to this express instruction by observation and supervision from time to time. In effect, this represented the nature and extent of the breach by the defendant which was the subject of these proceedings and with respect to which the defendant pleaded guilty. 16 The first question for determination in all the circumstances is the objective seriousness of the breach. On one view of it, every breach of an obligation imposed by the Act is serious given the potential result of injury or death within a work environment. However, having regard to the induction programme which the defendant did have in place which admittedly did not cover specifically the unloading operation and given the fact that Mr Barry had long experience and was overall assessed to be competent in and about the unloading operation and having regard to the fact that he had undergone an induction process as recently as March 1999, I do not regard the breach of the Act by this defendant in all the circumstances as being a serious one. 17 The prosecutor also relied on the fact that the defendant did not have in place any system of monitoring what was occurring in the log yard area because it took a considerable time, probably in excess of one hour, for the applicant's body to be located after the accident had occurred. To some extent a system of regular monitoring and supervision of the activities of the contractors might have enabled the defendant to have reacted more quickly to the accident, although there is no evidence available to indicate whether or not Mr Barry died instantly as a result of the injuries sustained by him. On the other hand, the assertion about a failure to supervise and monitor contractors was more directed to ensuring compliance with safe unloading procedures than regular surveillance of work areas. I regard this as a matter of peripheral significance central to the manner in which the defendant breached the Act. 18 In assessing penalty I take into account the fact as adduced by the prosecutor that this defendant has no prior convictions. Furthermore, it has demonstrated a positive and comprehensive commitment to its occupational health and safety responsibilities and has reacted positively and constructively to the unfortunate accident which has given rise to these proceedings. Through its actions the defendant expressed contrition for what has occurred. Accordingly, I am of the opinion that there is no particular utility in imposing a penalty which will have a specific deterrent on this defendant, although I am mindful of the need to ensure that any penalty has an appropriate general deterrent effect. 19 The prosecutor through his counsel properly conceded that the defendant had been cooperative with the WorkCover Authority in and about its investigation into the accident and that it had pleaded guilty at the earliest possible opportunity. The prosecutor sought orders for a moiety and costs which were not opposed by the defendant. 20 The prosecutor submitted that an appropriate penalty was within the mid to high range. The defendant submitted that the appropriate penalty was in the low range. 21 Having regard to all the circumstances I am of the opinion that an appropriate penalty to be imposed on the defendant in these proceedings is $25,000. The defendant is entitled to a reduction of 25 percent by reason of its early plea of guilty leaving a net penalty of $18,750. ORDERS 22 I make the following orders: 1. I find the defendant guilty of the offence charged in the summons and the defendant is convicted accordingly. 2. The defendant is fined the sum of $18,750 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant is to pay the costs of the prosecutor assessed by the Court in default of agreement. ___________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.