Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Grant Vosu v Tyre Marketers (Australia) Limited [2004] NSWIRComm 118 PROSECUTOR: Inspector Grant Vosu PARTIES : DEFENDANT: Tyre Marketers (Australia) Limited ACN 004 098 346 FILE NUMBER: IRC 2622 of 2003 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - prosecution under section 15(1) of the Occupational Health and Safety Act 1983 - early plea - person struck by a falling truck tyre - general and specific deterrence - contrition - mitigation - good record - discount - defendant guilty of charge - defendant ordered to pay a fine with a moiety to prosecutor - costs LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 05/03/2004 DATE OF JUDGMENT: 05/13/2004 PROSECUTOR: Mr PM Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Ms WG Thompson of counsel SOLICITORS: Freehills JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 13 May 2004 MATTER NUMBER IRC 2622 OF 2002 INSPECTOR GRANT VOSU v TYRE MARKETERS (AUSTRALIA) LIMITED Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 The defendant pleaded guilty to the amended charges brought under s15 of the Occupational Health and Safety Act 1983 ('the Act'). The charges arose out of an accident which occurred on 16 May 2001, when a tyre struck the head of an employee of the defendant, when it had been dropped from a mezzanine level storage area, to the ground below. 2 The amended charge was: DID FAIL To ensure the health, safety and welfare at work of its employees and in particular Ian Henry Suthern ("the worker") contrary to s.15(1) of the Occupational Health & Safety Act 1983 in that the said worker was walking from the tyre fitting bay to the tyre storage mezzanine area of the premises in order to pick up a tyre when he was struck by a heavy truck tyre which was dropped from the mezzanine level of the storage area above him by Brett Hayes, the defendant's Store Manager ("the manager") and the worker sustained serious injury as a consequence of being struck by the tyre about the head and neck, by reason that: (a) The defendant failed to provide and maintain a system of work that was safe and without risk to health in relation to the work of retrieval and handling of truck tyres from the mezzanine storage area of the premises in: (i) The process of dropping a truck tyre from the mezzanine storage area to the floor area below when the worker was proceeding there to collect a tyre was unsafe. (ii) The conduct of such work of dropping truck tyres from the mezzanine level when there had been no proper risk assessment conducted in relation to such work, was unsafe. (iii) The dropping of the truck tyre in the circumstances when the Manager's assistant in conducting that work, Wayne Edwards was not in position on the floor level below to act as a lookout was contrary to the defendant's own requirements for the conduct of that work. (iv) The conduct of the work of dropping a truck tyre from the mezzanine level when there was no barricading of the floor area below the mezzanine level to prevent access by persons such as the worker, was unsafe. (v) The conduct, of the work of dropping the truck tyre when there was no oral warning given or any warning sign provided of this impending event, was unsafe. (vi) It did not ensure all construction work of the mezzanine level, including installation of a tyre drop chute, was completed prior to use of the mezzanine level for tyre storage. (b) The defendant failed to provide or maintain a means of access to and egress from a place of work under its control namely the floor area below the mezzanine level in the truck tyre storage area of the premises in a condition that was safe and without risk in that: (i) Access to the area could be obtained through several different doorways. (ii) It was impossible for a person such as the Manager working on the mezzanine level to see persons such as the worker entering the floor area below unless such persons proceeded through the roller shutter door at the front. (iii) The access and egress from the area where the worker was proceeding to retrieve a tyre was unsafe by reason that a truck tyre was dropped without warning from the mezzanine level to the floor area where the worker was proceeding. (c) The defendant failed to provide such information, instruction, training and supervision in relation to the work of dropping truck tyres from the mezzanine level in that: (i) There was no documented procedure contained in any of the defendant's safety manuals which specified the manner in which the work could be conducted safely. (ii) The risks associated with the work of dropping truck tyres from the mezzanine level was not adequately explained to the defendant's employees at the premises. (iii) There was no specific instruction provided to Wayne Edwards not to leave the area below the mezzanine whilst the Manager was dropping tyres from it. (iv) There was no supervision of the work of dropping tyres to ensure that employees accessing the storage area at the time of the accident were not at risk whilst tyres were being dropped from the mezzanine level. (v) The instruction to the employees to use common sense in relation to the work of dropping the tyres was inadequate without the specific risks in relation to such work being advised. 3 The agreed statement of facts provided: 1. The Inspector prosecuting this matter is duly appointed under Division 1 Part 5 of the Occupational Health & Safety Act , 2000 and empowered under section 106(1)(c) of the said Act to institute proceedings in the within matter. 2. TYRE MARKETERS (AUSTRALIA) LIMITED [ACN 004 098 346] ("the Defendant") is a company duly incorporated and having its registered office at 170-180 Hume Highway, Somerton in the State of Victoria. 3. The Defendant at all material times conducted its business of tyre retailing, fitting and services from numerous outlets in New South Wales and in Australia, including premises at 60 Captain Cook Drive, Caringbah in the State of New South Wales ("the Premises"). The business there carried on at all material times by the Defendant was known by its trading name - Beaurepaires for Tyres, Caringbah. 4. At all material times the Defendant was an employer in New South Wales. 5. At all material times the Defendant employed Ian Henry Suthern ("Mr Suthern") as a road service truck tyre fitter. 6. The worker had been engaged on a full-time basis at the Premises by the Defendant since October 1994. 7. At an inspection of the premises by Senior Inspector Robert Egan on 23 July 2001, the following features were noted: (i) The area, where the incident occurred, was located approximately 20 to 30 metres towards the south perimeter of the Premises. (ii) The area inspected was accessed from a 3.5 metre high by 4 metre wide opening doorway with a roller door retained above the floor area. (iii) Inside this area, truck and heavy duty tyres were stored on the floor level and on a mezzanine platform located along the south and west walls of the building at this point. (iv) A metal framed handrailed staircase accessed the mezzanine platform approximately 2.4 metres above ground floor level with wooden steps retained by bolts onto metal brackets. (v) At the south side of the mezzanine level was a fence of square tube metal construction with a double swinging gate, the opening measuring approximately 1.61 metres wide by 1 metre high. The total length of the fencing including the opening was approximately 4.3 metres. (vi) The mezzanine platform covered an access area of approximately 6.5 metres over stored tyres and an access doorway to another storage area. (vii) Underneath the mezzanine floor at the rear of the tyre storage area was a doorway that was not visible to a person standing on the mezzanine floor. This door was used as one means of travelling between different areas of the Premises. (viii) Located at the north side of the fencing around the mezzanine area was a blue metal constructed box measuring approximately 2.4 metres in height by 0.28 metres in width by 1.04 metres in depth. 8. At all material times on and prior to 16 May 2001, employees of the Defendant were authorised to collect tyres themselves from the tyre storage area, on either the mezzanine level or the ground floor level of the storage area. 9. On and prior to 16 May 2001 truck tyres would have to be retrieved from the storage area on a daily basis. 10. At all material times it was common practice for employees who needed to obtain tyres from the mezzanine level of the storage area to drop the tyres from the mezzanine level to the ground floor. When this activity was being undertaken, it was the Defendant's requirement, communicated verbally by the store manager, to have two people to be in attendance, with one person collecting and dropping the tyres, and the other person acting as a lookout to ensure others who may have entered the area did not come into a position of danger. The success of this procedure was incumbent upon the requisite number of staff levels in the area and operational demands, and as a result it was not always adhered to. 11. The dropping of tyres from the mezzanine level was an everyday practice for employees at the site and this practice had been in place since 1998. 12. There was no adequate system of work in place to ensure that the work of retrieving and handling tyres was being carried out in a safe manner. 13. On and prior to 16 May 2001 there had been no instruction given to employees preventing the dropping of tyres from the mezzanine level. 14. Prior to 16 May 2001 no risk assessment had been carried out to assess risks relating to the storing and removal of tyres on the mezzanine and ground levels. 15. The Store Manager, Brett Hayes ("Mr Hayes"), did not consider the practice of dropping tyres from the mezzanine level to be dangerous. 16. At all material times on and prior to 16 May 2001, the Defendant's Safety Policy or its safety manuals "Working Safely" and "Still Working Safely" did not specifically address a safe work procedure for the work of dropping tyres from the mezzanine storage level. 17. Prior to 11.00 a.m. on 16 May 2001, Mr Hayes, and Wayne Edwards ("Mr Edwards"), a tyre fitter employed by the Defendant, went to the storage area and commenced to obtain truck tyres from the mezzanine level. Mr Hayes retrieved the tyres from the mezzanine level and dropped them through the gate in the mezzanine railing to the ground floor where Mr Edwards retrieved them and took them to the workshop. 18. On 16 May 2001 at about 11.00 a.m., Mr Edwards, having received a drop of the first two tyres from Mr Hayes, was proceeding to wheel them out of the roller door to the storage area, to the tyre fitting workshop. While doing so he had his back turned on the area where Mr Hayes remained, retrieving tyres from the mezzanine level. 19. At about 11.00 a.m. Mr Suthern accessed the truck tyre storage area through the ground level doorway under the mezzanine level which was not visible from the area above on the mezzanine level where Mr Hayes was retrieving truck tyres. 20. As Mr Suthern walked out from under the mezzanine area he was struck on the head by a truck tyre which had been dropped from the mezzanine storage area by Mr Hayes. 21. The tyre weighed 61 kilograms. 22. The tyre struck Mr Suthern on the head and neck area, causing serious injuries including fractures to the cervical 1 and cervical 2 neck vertebrae. 23. The injuries sustained by Mr Suthern as a result of the incident prevented him from resuming his normal duties with the Defendant after 16 May 2001. 24. The day after the incident the Defendant sent a written notice to all its outlets banning the dropping of tyres from any outlet which had a mezzanine storage level and indicating any contravention of that notice would result in instant dismissal. 25. Work practices were immediately changed at the Premises following the accident. Whilst a permanent solution was being devised, employees were required to use a forklift to raise or lower tyres between the ground and mezzanine floors. 26. Subsequent to the incident on 16 May 2001 and prior to the Inspector's inspection on 23 July 2001 a tyre drop chute was installed within the storage area of the Premises, in order to provide a safe method of lowering tyres from the mezzanine level to the ground floor level. 27. It was demonstrated to Inspector Egan at the time of his inspection that a large vehicle tyre could be inserted into the drop chute and restrained until it reached floor level. Access was provided by a swinging, lockable type door at the mezzanine level, the door was opened and the tyre manually rolled in and it then fell to the ground level where it was restrained. A swing open door in the chute at ground level opened enabling removal of the tyre. 4 Various other documents were tendered and in the defendant's case, evidence was called from the defendant's National Sales Manager, Mr Hylton Taylor and from its Manager, Health and Safety Strategy, Ms Elizabeth MacWhirter, who were not required for cross examination. It was common ground that the maximum penalty was $825,000. The parties' respective cases 5 The case put for the prosecutor by Mr Skinner of counsel was that while the defendant was not one which generally ignored matters of safety and the circumstances of the accident which had occurred were relatively simple, the risks here in question were, nevertheless, obvious and readily foreseeable. On the evidence the offence was a serious one. 6 The defendant had in place a flimsy procedure for dealing safely with the work in question. The risk which had materialised had not been foreseen and while the steps taken by the defendant after the accident were to be applauded, they were simple, demonstrating the ready foreseeability of what had occurred. There had simply been a blindness to an obvious risk. The consequences of the accident highlighted the seriousness of that risk. 7 It was accepted that there had been an early plea to the charge, as well as co-operation and other mitigating factors appropriate to taken into account in determining penalty. 8 The case for the defendant, put by Ms Thompson of counsel, was that its deficiencies were accepted by its plea of guilty to the charge pressed. It was submitted, nevertheless, to be pertinent in determining penalty to take into account the defendant's record in the context of its operations, as well as its approach to its obligations under the Act, both before and after the accident in question. 9 Reliance was placed upon the evidence of the defendant's well documented safety systems, training and management of its obligations under the Act, as well as the various physical steps taken to deal with the risk which the accident had highlighted, both at the store in question and at other locations. Reference was also made to the vigorous steps taken by the defendant to assist the injured worker's recuperation and return to work, as well as its sincere contrition for what had occurred. 10 It was argued to be relevant in assessing foreseeability, to note that the defendant had not ignored any forewarnings that its existing system was unsafe and that the nature of the work performed by its employees was such that its safety record was a good one, with only one prior conviction in the Chief Industrial Magistrate's Court, in respect of an incident in another division of the company, where tyre retreading was dealt with. 11 It was accepted that general deterrence had a role to play in the fine to be imposed, but it was argued that specific deterrence had a limited role, given the evidence of the defendant's approach prior to the accident and the steps taken afterwards. It was also submitted that the maximum available discount should flow to the defendant, in the circumstances revealed on the evidence. Consideration 12 The proper approach to the determination of penalty is well settled. The objective seriousness of the offence in question is the primary consideration. In this case, the defendant accepted by its plea and in its submissions that the offence was a serious one. This was amply clear on the evidence. 13 The system of work in place had obvious deficiencies. The risk of injury to someone struck by a falling truck tyre, while being dropped to the ground from the mezzanine level in the storage area was obvious. It was a matter of good fortune that the injury sustained was not more serious than it in fact was. 14 The system involved one person dropping the tyre and another receiving it below. That latter person was to keep a lookout, to ensure that no one walked into the area. It was not blocked off in any way, indeed, access to it was available through a door not visible to the person on the mezzanine level. The person receiving the tyre was also responsible for moving it away. This involved turning away from the access doorway. It was in this way that the worker injured in the accident walked into the storeroom below where the tyre was being dropped, unseen by either person involved in that work. The system established and operating on a daily basis at this store, did not even seem to require a simple step such as the person dropping the tyre, to sound a warning that he was about to do so. The system was plainly inadequate and unsafe, from a number of obvious perspectives. 15 After the accident the system was swiftly altered, with dropping of a tyre from the mezzanine level being entirely prohibited; use of a forklift introduced on an interim basis and a consultant quickly engaged, who devised a tyre chute, which was promptly installed at this and other of the defendant's stores, where similar risks had been identified as existing. The doorway which had given access to the storage area at this store was locked and arrangements made for the secure location of the key. The area was also later reconfigured. 16 The evidence undoubtedly demonstrated the defendant's thorough and prompt reaction to the risks which the accident had revealed. It also showed, however, as the prosecutor submitted, that exclusion of the risks in question was relatively straightforward, once the defendant gave proper consideration to the way in which the work in question was performed. That consideration resulted from the accident, not any proactive forethought from the safety of the work in question. It was obviously unsafe. 17 Disappointingly, yet again this evidence showed that even in the case of an employer with relatively well developed safety systems and a real commitment to training and observation of its obligations under the Act, obvious and serious risks to safety are not identified and addressed prior to an accident occurring. The agreed statement of facts made this abundantly clear. 18 It plainly follows that both general and specific deterrence have a role to play in the penalty here imposed, although I accept the defendant's submission that in the latter case, it is appropriate to have regard to the evidence of a commitment to safety existing prior to the accident and the steps taken afterwards, to completely remove the risks identified and to revisit the defendant's obligations under the Act on a wider basis. Nevertheless, I am satisfied that specific deterrence must have a role to play in this penalty. The fact that this system had not earlier resulted in an accident, was plainly a matter of good luck, not good management. 19 I take note of the defendant's submissions as to various subjective facts relevant to penalty. 20 On the evidence, it cannot but be concluded that the offence here in question was a relatively serious one, which must be reflected in the penalty imposed. Having in mind all of the evidence and the submissions, I have concluded that the appropriate penalty for this offence is $95,000. 21 In determining final penalty, it is also necessary to have regard to the defendant's record, which I accept in the context of its operations was a good one, as well as the evidence as to the other mitigating factors relied upon. This included the acknowledged early plea and co-operation with the prosecutor; as well as the speedy attention payed to the risks in question, the substantial assistance provided to the injured worker and the defendant's real contrition for what occurred. I am satisfied that these matters must lead to a discount of the penalty by 35%, reflecting both the utilitarian savings achieved by the plea, as well as the other mitigating factors I have mentioned. This results in a final penalty of $61,750. Orders 22 For the reasons given, I find the defendant guilty of the charge pressed and enter a conviction accordingly. The defendant is ordered to pay a fine of $61,750, with a moiety to the prosecutor. The defendant is also ordered to pay the prosecutor's costs, as agreed or assessed in accordance with the Court's Rules. ------------------------ 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.