Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector John Forster v Northpower [2002] NSWIRComm 92 PROSECUTOR: PARTIES : Inspector John Forster DEFENDANT: Northpower FILE NUMBER: IRC3347 of 2001 CORAM: Kavanagh J CATCHWORDS : Prosecution s15(1) of the Occupational Health and Safety Act - employees exposed to risk with use of metal tape measure near a live electrical conductor - dichotomy between the safety policy of the employer and risk assessments developed at different times by different areas of defendant's operations - anomaly created - foreseeable risk of injury - plea of guilty after amended Application for Order held to be the first reasonable opportunity to plea - full discount allowed - penalty imposed - costs as agreed LEGISLATION CITED : Occupational Health and Safety Act 1983 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Tyler v Sydney Electricity (1993) 47 IR 1 Haynes v James Glass & Aluminium Pty Limited (unreported, CT91-772-775, 20 May 1994) CASES CITED : Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 R v Thompson, R v Houlton (1999-2000) 49 NSWLR 383, and 2000 115 A Crim R 104 Cameron v The Queen [2002] HCA 6 R v Sharma [2002] NSWCCA 142 Channon v The Queen (1978) 20 ALR 1 HEARING DATES: 04/11/2002 DATE OF JUDGMENT: 05/31/2002 PROSECUTOR: Mr W.G. Roser of counsel Solicitors: Ms R. Panagoda WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr R. Warren Solicitors: Mr R. Lund Middletons Moore & Bevin JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Fri 31 May 2002 Matter No. IRC3347 of 2001 INSPECTOR JOHN FORSTER v NORTHPOWER Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2002] NSWIRComm92 1 The Prosecution is brought by Inspector John Forster of the WorkCover Authority of New South Wales under the provisions of s15(1) of the Occupational Health and Safety Act 1983. The Amended Application for Order reads: . . . NORTHPOWER a body incorporate pursuant to Schedule 1, Part 2 of the Energy Services Corporations Act 1995, whose principal office is situated at 9 Short Street, Port Macquarie, in the State of New South Wales, ("the defendant") being an employer on 27 May 1999 at a 66,000 Volt ("66KV") Substation located at Borthwick Street, Inverell DID FAIL to ensure the health, safety and welfare at work of all its employees and in particular, Michael Rennes, in that the defendant failed to provide or maintain systems of work, to wit, a system of assessing earthed steel supports for installation of work platforms to enable work to be performed on isolated and de-energised circuit breakers that was safe and without risks to health contrary to Section 15(1) of the Occupational Health and Safety Act 1983. 2 The defendant pleads guilty to the charge. 3 An amended Agreed Statement of Facts was tendered and relevantly states: 1. At all material times the Prosecutor was an Inspector duly appointed and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in the within matter. 2. At all material times NORTHPOWER was a body incorporate pursuant to Schedule 1, Part 2 of the Energy Services Corporations Act 1995, whose principal office is situated at 9 Short Street, Port Macquarie, in the State of New South Wales. 3. At all material times the defendant employed Michael Rennes, 46 years of age, as a Technical Officer. He worked within the maintenance group and had qualifications as a fitter and turner. 4. At all material times the defendant owned and operated a 66,000 Volt ("66KV") Substation located at Borthwick Street, Inverell in the State of New South Wales ("the site"). 5. At approximately 8.20 am on 27 May 1999, Michael Rennes suffered an electric shock resulting in full thickness burns to 50% of his body, right arm, right side of torso, left knee and left foot when he was undertaking work at the site. 6. At about 8:40 am an ambulance arrived. After some treatment Mr Rennes was taken to Inverell Base Hospital and thereafter transferred to the Royal North Shore Hospital. He was in hospital for about 2 months and out of work for 3 months. He returned to work in August 1999 commencing one hour one day per week for three weeks and gradually increased to full time. Currently Mr Rennes is in full time employment with the defendant company performing restricted work. He cannot attend to any heavy lifting work, nor welding, though he is a welder by trade. He is not able to work long periods on the metal laser. Currently he suffers with numbness to lower right arm and has difficulty with lifting heavy objects and grasping small objects. He suffers with lower back muscle pain and sometimes needs them to be manipulated. Mr Rennes currently needs complete cover up of his body when going in the sun. 7. At the time of the accident Mr. Rennes was attending the site to assess requirements for construction of a work platform from which maintenance could be carried out on 66KV Circuit Breakers at the site. As different circuit breakers exist throughout Northpower a visual inspection was needed. 8. Mr. Rennes was accompanied by Mr. Tony Williamson, Technical Officer, who gave him access to the site. They first went to Circuit Breaker 6B01, then moved to the 6B27 Circuit Breaker where Mr. Rennes lifted his tape measure to show the height of the work platform. Mr. Williamson, standing approximately six feet away, turned and saw the tape being held near the 'live' centre section of the circuit breaker yelled out "No" and then turned and ran from the circuit breaker. Whilst running away he heard the circuit breaker operate and turned to see Mr. Rennes lying on the ground on his back. He gave Mr. Rennes attention while calling out to Graeme Emerson to call 000. Mr. Emerson was an electrical worker who was at the site clearing tree branches. 9. Inspector Brian Parfitt and Inspector Brian Dell attended the accident site on 28 May 1999. Photographs were taken by Inspector Dell and a Factual Inspection Report was prepared by Inspector Parfitt. An inspection was undertaken on 2 September 1999 by Inspector Forster and a further Factual Inspection Report was prepared. 10. Mr. Rennes was authorised for entry into Substations in the old Northern Rivers area for which he received training and a familiarisation course. Mr. Williamson as an authorised person was to provide access to the site, explain the guidelines for access to substations and supervise Mr. Rennes while on the site. 11. The defendant's Policy document "Electrical Safety Rules, Document no. SWP 01 001" dated 17 July 1997 at page 18 states "Danger can arise when making measurements in the vicinity of High Voltage Conductors. Steel Tapes, metal reinforced linen tapes and long steel rules can be very dangerous and shall not be used in High Voltage Electrical Stations or on Transmission lines. Most linen tapes are metal reinforced and for this reason, shall not be used in the vicinity of Live Conductors or within High Voltage Electrical Stations. Fibreglass tapes shall be used in such locations." 12. A procedure document of the defendant entitled "Procedure: Worksite Hazard & Risk Control Assessment, document no. SWP 02 001, Revision 2", dated 14 January 1999 at p.19, point 6 states "Metal measuring tapes, or fabric tapes having a metal reinforcing thread woven in the fabric are conducting objects and may only be used where at least minimum safe working clearances can be maintained." 13. A further procedure document entitled "Form: Service Provided Pre-Task Risk Assessment, Safe Working Practices for Service Providers within Substations, SWF 02 012, Revision 1" dated 23 December 1998 on page 6 states "Metal measuring tapes, or fabric tapes having a metal reinforcing thread woven in the fabric are conducting objects and may only be used where at least minimum safe working clearances can be maintained." 14. The policy and risk assessment sheets were developed at different times by different groups and created an anomaly in relation to the use of measuring tapes. Mr. Williamson used the risk assessment documentation regularly and was more familiar with the minimum safety requirements of the risk assessments rather than the higher safety standard of the Policy. 15. Since the accident the defendant has totally banned the use of any conducting measuring tapes within zone substations. All the worksite risk assessments that referred to zone substations have had the clause referring to metal tapes altered to reflect the ban. A hazard alert was issued immediately after the accident to all Northpower staff advising of the circumstances of the accident and enforcing a ban on the use of conducting tapes in zone substations according to the Policy. The Safe Working Plans now reflect Policy. Training of staff and service providers has been altered to reinforce the ban. 16. Also since the accident, non-electrically qualified persons are required to conduct a full risk assessment prior to entry into any zone substation, whether accompanied by an electrically qualified person or not. All authorities for non-electrical persons to enter substations issued prior to the formation of Northpower have been reviewed and staff have been retrained and reassessed for authorisation. Policy has been altered to ensure that all staff entering zone substations must now contact system control upon entry and exit. A capital works program was commenced for a single point of entry at all zone substations including the subject site. The single point of entry allows access to be monitored and provides a final point to remind staff entering substations of the basic safety requirements for any work to be done within the enclosure, and a place for warning signs. 4 Mr W. G. Roser, of counsel, appeared for the prosecution and Mr R. Warren, of counsel, appeared for the defendant. The prosecutor relied on the amended Agreed Statement of Facts and two internal Factual Reports of the incident. Coloured photographs taken on the day of the incident were also tendered. The defendant relied upon an affidavit of Mr Trevor Charles Gilson, the Group Manager – Safety, Environment and Quality of Northpower. Attached to that affidavit were a significant number of annexures directing themselves to: authorisation of work to be done within Northpower; personal authorisations; qualifications and training records; a diagram of the involved circuit breaker and support structure that was being inspected; Northpower's guide to working in electrical sub-stations dated March 1993; the Electrical Association of New South Wales guidelines for such work at the time of the incident; Northpower's work site hazard and risk control assessment as revised after the incident; other safety rules as revised after the incident. 5 Mr Michael Rennes, a fitter and turner, entered a sub-station site accompanied by a Technical Officer and Supervisor, Mr Williamson. He was measuring for a maintenance platform to be constructed underneath a bank of electrical conductors. To demonstrate the height of the proposed platform needed to allow a maintenance task to be performed on the conductors, Mr Rennes, using a Northpower supplied metal tape measure, extended it out to 300mm up underneath the live conductors. The metal tape stretched to that height, arched over and struck a conductor. Mr Rennes suffered a severe electrocution. Arising from the incident, Mr Rennes had full thickness burns to 50% of his body, right arm, right side of torso, left knee and left foot. He continues to suffer serious incapacity related to his left side and his right arm. He is unable to perform his full pre-injury duties. He has to wear full body cover to protect himself from sun sensitivity which sensitivity is directly related to the burns inflicted in the incident. At the time of the incident Mr Rennes was 46 years of age and had worked first as a fitter and turner from 1987 with Northpower. In the last two years he had served as a Technical Officer within Northpower's maintenance group. 6 In consideration of penalty the court must first assess the nature and quality of the offence, that is, the objective seriousness of the offence. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' . . . The Full Bench further commented (at 476): . . . the proper approach is to first consider the gravity of the offence viewed objectively. 7 In consideration of the objective seriousness of this offence, the prosecution relies upon evidence to prove: the defendant's neglect of an obvious risk to safety involved where there was a devised work method for the task which was clearly defective; the obligation on the defendant to positively inform itself of safe working; and the simple remedial steps the defendant could have taken to avoid the breach. 8 The system of work in place required the employee be authorised to perform work inside electrical stations. Mr Rennes received the appropriate authorisation to enter electrical stations on 12 December 1995. I am satisfied Mr Rennes had been trained to perform this task within the ambit of Northpower's guidelines. However, there was a neglect of a basic safety procedure revealed in the work method, adopted for the performance of this task. This breach of the Occupational Health and Safety Act has exposed the unsafe feature of the work method adopted. 9 Northpower's specific work method for the task was defined in its "Safe Working Practice for Sub-Stations" policy document and two different procedural documents. The policy document relevantly reads: Danger can arise when making measurements in the vicinity of High Voltage Conductors. Steel Tapes, metal reinforced linen tapes and long steel rules can be very dangerous and shall not be used in High Voltage Electrical Stations or on Transmission lines. Most linen tapes are metal reinforced and for this reason . . . The first procedural document reads: Metal measuring tapes, or fabric tapes having a metal reinforcing thread woven in the fabric are conducting objects and may only be used where at least minimum safe working clearances can be maintained." The further procedural document reads: Metal measuring tapes, or fabric tapes having a metal reinforcing thread woven in the fabric, are conducting objects and may only be used where at least minimum safe working clearances . . . can be maintained. 10 Read together, the policy and the work methods left to the employee the responsibility to determine what was a "safe clearance" when working near a live electric current. The anomaly in the documents – the safety policy and the risk assessment documents - meant there was no true ban on the use of metal tapes in the circumstances where work near high voltage conductors was performed. The Policy and Risk Assessment documents were devised at different times by different groups within the defendant's operations. Further, at the time of the breach in 1999, employees of Northpower were only supplied with metal measuring tapes. They were not supplied with the fibreglass tapes which tapes, the employer clearly recognised, would have eliminated the risk to safety and ensured safe working. 11 Northpower pleads, at the time of the breach, metal measuring tapes were permitted to be used in electrical sub-stations under guidelines published by the Electricity Association of New South Wales which body enunciated relevant industry safety standards. They were permitted to be used, the defendant submits, if minimum safe-working clearances were maintained. The defendant submits it complied with this safety standard. However, while warning against the use of metal measuring tapes within its safe work practices procedures as at July 1997, the defendant permitted, within that work method, the use of a metal tape in an electrical sub-station. Further, at the time of this incident, it had only supplied metal tapes to its workers not the fibreglass tapes it had recognised were more suitable for the task. 12 The prosecutor submits the circumstances of this breach exposes a foreseeable risk of injury to employees. The Full Bench commented in Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [15] when addressing the submission the conduct of an injured worker effectively removed or minimised the liability of a respondent: . . . This was wrong in principle. Section 15 of the Occupational Health and Safety Act 1983 requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. 13 The circumstances in which this work was conducted persuades the court there is an obvious and foreseeable risk of injury once an employee is required to enter a highly charged electrical site to perform measuring work using a company provided metal tape. I find it relevant fibreglass tapes were not provided to employees at this time by an employer who had stated such tapes "shall be used" in particular work environments. 14 The defendant submits the employee was required to measure a platform and could have performed his work within a minimum safe-working clearance from the live conductors in accordance with the standards. The circumstances however reveal the employee was demonstrating to a supervisor the proposed height of a platform which was to be erected in relation to the height of the live conductors. It cannot be held to be improper in the circumstances for the supervisor to be shown the proposed height of the platform. While the evidence is silent on whether the demonstration was requested or volunteered, I find it was a foreseeable act. Further, allowing employees onto a highly charged electrical worksite with a metal measuring tape, itself provides an obvious and foreseeable risk of injury to an employee. 15 Given the circumstances revealed to the court as to the injuries suffered arising from this breach of the Occupational Health and Safety Act, the view of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 is relevant when considering the objective seriousness of this offence (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant. The potential risk flowing from this breach and its foreseeability is demonstrated by the injury suffered by Mr Rennes and persuades the court this incident was a serious breach of the Occupational Health and Safety Act 1983. 16 There are a number of subjective considerations placed before the court in its consideration as to the penalty. The Full Bench in Lawrenson Diecasting stated (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence. The Full Bench cited (at 474) with approval the passage of the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Limited (unreported, CT91-772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. 17 In mitigation of penalty it was submitted by the defendant Mr Rennes has been fully rehabilitated and is now employed in alternative work which the employer submits Mr Rennes finds satisfactory. The defendant submits it provided every assistance to the injured worker. 18 There must be consideration when determining penalty of a level of both general and specific deterrence to compel attention to safety. As was held in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74] the Court should take into account in relation to the question of deterrence: . . . both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare . . . In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in a consideration of breaches under the Occupational Health and Safety Act , 1983 by Hungerford J who stated: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive. 19 The defendant, in accepting the principle of deterrence, and alerted as to the risk to safety in the pre-existing work method as outlined in the two inspectors' reports of the incident, revised its system of work for all tradesmen entering any of its electrical sub-stations. To the document headed "Safe Working Practices for Sub-Stations", a relevant extra statement has been added: "Fibreglass tapes shall be used in such locations." Further amendments to Northpower's procedures now include a requirement that entry to any sub-station is controlled through one gate. A site-specific work method must also be completed and handed to the gate controller before entry to the worksite. Each sub-station is now isolated behind fencing and a sign has been erected which relevantly reads: "AUTHORISED ENTRY ONLY ENSURE COMPLIANCE WITH NORTHPOWER'S ELECTRICAL SAFETY RULES. ENSURE COMPLIANCE WITH NORTHPOWER'S SAFETY NON NEGOTIABLES CONTACT SYSTEM CONTROL ON ENTRY COMPLETE RISK ASSESSMENT MAINTAIN SAFE WORKING DISTANCES DO NOT USE METAL TAPE MEASURES METAL REINFORCED LINEN TAPES METAL LADDERS LADDERS WITH METAL REINFORCING TAKE EXTREME CAUTION WHEN CARRYING LADDERS UNLOADING EQUIPMENT USING METAL SCAFFOLDING USING CRANES AND HOISTS USING PORTABLE RADIOS USING TELEPHONE APPARATUS WITH WHIP AERIALS CARRYING EARTHING RODS IN CASE OF EMERGENCY CONTACT 132080" (Emphasis added) 20 The defendant has expended significant time, energy and thought into revising this work method. Further, the company has assured the court it now provides fibreglass tapes to all employees required to work in sub-stations. Employees have been retrained in the new on-site safety policies. 21 The industrial history of a company is also relevant in the court's consideration as to penalty. Northpower through its other identities including Country Electricity and Northern Rivers Electricity, has been a supplier of electricity to areas in the north of New South Wales since 1982. The occupational health and safety standards were first introduced in this State in 1983. Since its operation the company has had recorded against it three breaches of the Act, two under s15(1) of the Occupational Health and Safety Act and one breach under s16(1). The latter breach led to a conviction entered on 9 February 1998 and attracted a significant penalty. 22 The defendant operates in a high risk industry and while the industrial record of the company is not perfect, it has been operating in this high risk industrial environment for many years. I perceive this as a good industrial record but make this comment in the context where the court is considering a perceived serious breach of the Occupational Health and Safety Act. 23 The defendant further submits, in mitigation as to penalty, it entered an early plea of guilty to the charge. In the guideline judgment of R v Thompson; R v Houlton (1999-2000) 49 NSWLR 383; and 2000 115 A Crim R 104, the Court of Criminal Appeal held the full benefit and discount for the utilitarian value of an early plea of guilty should be restricted to pleas entered at the earliest opportunity and should rarely be given after a matter has been set down for trial. In Cameron v The Queen [2002] HCA 6, the High Court however held when a defendant accepts responsibility for a crime and shows a willingness to facilitate the course of justice, the Court in the assessment of the value of such a circumstance must consider ". . . whether the plea was entered at the first reasonable opportunity". The effect of Cameron on the guideline judgment in Thompson was considered by the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142. The court held that the reasoning in Cameron was not applicable in New South Wales because the common law principles enunciated there have been modified by statute. It held s22 of the Crimes (Sentencing Procedure) Act 1999, renders it mandatory that a sentencing judge in New South Wales take into account both "the fact" of the plea of guilty and "when" it was made. The Chief Justice for the court held in Sharma the statutory reference to "the fact" of the plea, does not direct attention to the subjective intention of the person pleading guilty nor is the reference to "when" a plea is made only a reference to subjective elements. Thus the Court must take the plea into account even if there is no subjective intention to "facilitate the administration of justice". The Chief Justice concluded that the guideline judgment of Thomson is still of full force and effect and must be followed. 24 The prosecutor submits the circumstances in which the defendant entered its plea of guilty should not be perceived by the court as an early plea of guilty such as to attract the benefit of the utilitarian value of an early plea in accordance with the guidelines in Thompson. The court record reveals an amended Application for Order was filed on 16 August 2001. This amended application replaced an initial charge against the defendant filed on 26 June 2001. When the amended Application for Order was filed, a plea of guilty was entered before the Industrial Registrar. I find the defendant entered its plea at the first reasonable opportunity and therefore should have the benefit of the full discount of 25% for the utilitarian value of the plea (see R v Garry Grant Greenhalgh [2001] NSWSC272 (published 30 March 2001)). 25 The prosecutor submits the maximum penalty under the Act for this breach is $825,000 as the prior recorded convictions bring into effect s51A of the Act which provides for the imposition of an additional penalty after a prior offence has been recorded against a defendant. 26 The community demands rigorous adherence to occupational health and safety standards from its employers. The legislature has expressly reflected the community's demand with the obligations it has imposed on employers through the Occupational Health and Safety Act 1983. The company proffers and the court accepts this corporation's commitment to safe working. That commitment is reflected in a pre-existing, now revised and fully documented, work safe procedure. The commitment to safe working is also reflected in the corporation's awareness of, and emphasis upon, safe working. However, the nature and quality of this offence was most serious and as was said by Deane J in Channon v The Queen (1978) 20 ALR 1 (at 18): In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances? 27 I find the defendant guilty. 28 I take into account the objective seriousness of the offence and the above subjective features and include the discount allowed in my consideration as to penalty. The defendant is fined in the sum of $160,000 with a moiety to the WorkCover Authority. 29 As to costs, it has been agreed between the parties the defendant will pay the prosecutor's costs in the sum of $7,000 and I so order. 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