Industrial Court of New South Wales CITATION: Inspector Mark Wright v Northern Sydney and Central Coast Area Health Service [2005] NSWIRComm 463 PROSECUTOR: Inspector Mark Wright PARTIES: DEFENDANT: Northern Sydney and Central Coast Area Health Service FILE NUMBER(S): IRC 45 of 2005 CORAM: Haylen J Occupational Health and Safety Act 2000 - s 8 (1) - guilty plea - fatal injury while repairing tray of tip truck - employee working directly under elevated tray - tray released causing crush injuries - failure to instruct employees not to repair faulty vehicles when not trained - failure to maintain adequate system for reporting and rectifying faults in operation of tip truck - failure to provide adequate information instruction and training - defendant's failures comprehensive in relation to operation of tip truck and risks involved in repair of truck - serious breach established - early plea - numerous other subjective factors - prompt compliance with improvement notices - remedial steps taken to address risk - provision of public health service and capacity of substantial fine to divert resources from important public function not accepted as grounds for reducing fine - fine imposed CATCHWORDS: Inspector Batty v the Crown in the Right of New South Wales (Department of Education and Training) [2000] NSWIRComm 81 Inspector Searle v Western Sydney Area Health Service [2001] NSWIRComm 38 CASES CITED: HEARING DATES: 12/09/2005 EXTEMPORE JUDGMENT DATE: 12/09/2005 PROSECUTOR: Mr D ONeil of counsel SOLICITORS: Legal Services Branch LEGAL REPRESENTATIVES: WorkCover Authority DEFENDANT: Mr R Buchanan QC and Mr M Shume of counsel SOLICITORS: Sparke Helmore JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 9 December 2005 Matter No IRC 45 of 2005 Inspector Mark Wright v Northern Sydney and Central Coast Area Health Service. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2005] NSWIRComm 463 1 On 23 January 2003, Mr Rodney Crawford was employed by the Central Coast Area Health Service. On that day he was attending to a maintenance task relating to a tipper truck that was not performing as required and, in providing that maintenance service, was fatally injured. 2 The circumstances surrounding that accident were investigated by the WorkCover Authority of New South Wales and ultimately Inspector Wright commenced proceedings alleging a breach of section 8(1) of the Occupational Health and Safety Act by what had then become, by way of amalgamation, the Northern Sydney and Central Coast Area Health Service. No point is taken by the defendant in relation to the amalgamation and the changed body now nominated as the defendant. 3 The charge brought by Inspector Wright alleges a failure to ensure the health, safety and welfare by the defendant of all its employees and, in particular, Mr Rodney Crawford, contrary to the provisions of s 8(1) of the Act. The particulars of the charge are as follows: a failure to ensure that the tipper mechanism of the 1988 Toyota Dyna 400 tipper truck, registration PHN 697, referred to as "the truck", provided for use by its employees at the workplace operated safely and without risk to the health of its employees; Secondly, a failure to ensure a safe system of work for the operation of the tipper on the truck in that the defendant failed to ensure a system of work for the appropriate periodic maintenance and servicing on the tipper hoist control mechanism of the truck, including the control valve linkage assembly; a failure to ensure and maintain an adequate system for the reporting and rectification of the faults on the operation of the tipper of the truck, and a failure to ensure that only properly trained persons undertook maintenance or repair on the tipper of the truck; thirdly, a failure to provide adequate information, instruction and training to ensure employees did not place themselves under the tipper of the truck when it was in the raised position; fourthly, a failure to comply with obligations imposed pursuant to clause 137(1)(d) and (e) of the Occupational Health and Safety Regulation 2001 in relation to the truck's tipper hoist controlling mechanism, including the control valve linkage assembly. 4 When the matter was first listed before the Court a plea of guilty was entered to an amended application for order, that being an order particularised in the manner to which I have just referred. It is apparent from the evidence before the Court that prior to that occasion the defendant had already determined and made known its intention to enter a plea of guilty. These proceedings therefore deal with the appropriate penalty to be imposed in the circumstances of the case. 5 For the prosecutor a number of documents and photos were tendered. I have received a factual report prepared by an Inspector, a number of photos, an expert's report prepared by Senior Constable Mason, a certificate indicating that the defendant has no prior convictions, and also an agreed statement of facts. It was also asserted during the course of the proceedings, and not contested, that the current defendant, the Northern Sydney and Central Coast Area Health Service, being an amalgamation between the Northern Sydney Area Health Service and the central coast Area Health Service, had no prior convictions when those bodies were separate entities. 6 The parties, as I have indicated, have prepared a quite detailed agreed statement of facts. I do not wish to put on the record the entirety of that document, but it describes in some detail the circumstances surrounding this accident as well as the mechanism for operating the tray of the tipper truck involved in the accident. 7 It appears from the agreed statement of facts that at the time there were works being undertaken at Wyong Hospital involving the construction of a car park. The hospital and the defendant employed people in a maintenance department to assist in the construction of this new car park. 8 At the time of the accident Mr Crawford was employed as a hospital assistant grade 3/driver. Mr John Middleton was employed as the site engineer at Wyong Hospital. Mr Dennis Foley was employed as a leading hand/labour. Mr James Welsh and Mr Rex Ingram were employed as labourers. Mr Ronald Woods was employed as a welder. Mr Mick Willis was employed as an electrician. Mr Colin Frame was employed as a manager building and infrastructure maintenance, and Mr Geoff Dunlop was employed as a transport manager. 9 It is said that Mr Crawford's statement of duties and his position included duties of general labouring as requested by the leading hand and engineers, assisting trade staff as required, driving of trucks, tractors, forklifts and plant as required, and concrete placing and finishing. Mr Crawford worked in the maintenance department at Wyong Hospital and his duties included the driving of tipper trucks, including the tipper truck involved in this accident. Mr Middleton was co-ordinating the construction of the car park at Wyong Hospital and Mr Foley was the immediate supervisor of Mr Crawford in the construction work. 10 On 22 January 2003, the day before the accident, and in the absence of Mr Foley, Mr Crawford assumed the role of leading hand. As I have indicated the agreed statement of facts sets out in some detail the manner in which the tipping mechanism worked and it is unnecessary to repeat that detail for the purposes of this sentencing hearing. 11 It is sufficient to say that it appears that Mr Crawford offered assistance to Mr Welsh, who found that the tipping mechanism on the truck was not operating and that the tray was apparently stuck in the upright position and would not lower. Although it does not appear to be part of his usual duties, Mr Crawford took some of his own tools, drove Mr Welsh back to where the truck had been left with the tray in the upright position, and tried to repair the lifting and lowering mechanism. He did so firstly by working underneath the truck which would have presented no risk in the method of work then being undertaken, but during the course of providing maintenance Mr Crawford came from under the truck, bent over its chassis and continued working immediately under the tray: when the tray released he received fatal crush injuries. 12 The nature of the problem with that tipper truck and its lifting mechanism was described by Mr Graham Tweedie, the director of Leader Hydraulics Pty Limited, who advised in a report that the hydraulic manual hoist control linkage mechanism was out of adjustment. It appears that it was something of a relatively minor task to repair it. 13 The defendant's records show that the truck had been purchased in July 1989 and prior to the day of the accident, 23 January 2003, the truck had been serviced by mechanics employed by the defendant, and external service providers had also undertaken repairs and servicing of the defendant's vehicles. There were records of repairs, maintenance and services carried out by the defendant on each of its vehicles, and there was some information available as a result of those documents. There were no entries recording service or maintenance of the truck's hydraulic manual hoist control linkage mechanism. 14 The motor vehicle log sheet from January 2002 to December 2002 relating to the truck did not record any entries in the "Details of all Repairs Required" area of the form. There were motor vehicle log sheets submitted monthly to the defendant's transport department and they were available for perusal. 15 The defendant had a system for reporting of vehicle faults and that is set out in the Agreed Statement of Facts. It was said by Mr Ingram that the mechanism for reporting vehicle faults was to report them to the leading hand or to the mechanic. Mr Ingram also stated that he had been told by Mr Foley on numerous occasions that if there was anything wrong Mr Foley was to be notified and the vehicle was not to be used until it was fixed. The defendant however, did not have a written procedure for the reporting of vehicle faults. The requirement to report vehicle faults to the transport manager/deputy manager was stipulated in the defendant's motor vehicle policy and procedures general policies dated June 2000. 16 Prior to this accident in late January 2003 there were no training records for the defendant's employees Mr Crawford, Mr Foley, Mr Welsh or Mr Ingram, requiring that only properly trained persons were to perform maintenance or repair work on the tipper of a truck and in relation to the operation of tip truck trays. Prior to the date of the accident the defendant did not have a written safe work method statement on the operation of the tipper of the truck, nor did it have a written procedure prohibiting the use of faulty vehicles. 17 After the incident there were improvement notices served on the defendant. The details of these three notices are set out in the agreed statement of facts and it is not contested that they were promptly complied with. 18 Since the accident the defendant has taken the following steps: it has provided training to all maintenance staff on the operation of trucks that included the operation of the tipper mechanism and the manner for reporting vehicle faults: all the defendant's vehicles were assessed for safety risks; a safe work method statement for tipper trucks and their tipping mechanisms was developed by the defendant that provided instructions on the operation of the tipper, including that it be operated from within the truck cabin, and also instructed persons not to attempt to repair, effect repairs and/or adjust the tipper mechanism. Further, it was provided that periodic maintenance and servicing of the defendant's vehicles with a tipper hoist control mechanism is to be undertaken by contracted external service providers. All the tender documents have been amended to require the defendant to contact external service providers in accordance with the manufacturer's specifications. 19 It was agreed that the defendant had co-operated with the WorkCover Authority during the course of the investigation. 20 Senior Constable Mason's statement as to his examination of the truck is also quite detailed and he attempts in the course of that report to ascertain what was happening at the time of the accident. While there is some conjecture about that type of material, there is a distinct possibility that Mr Crawford performed this work believing that the tray was locked into the upright position. I have been assisted in understanding the background of this matter by the report of Senior Constable Mason and also by the numerous photographs that were tendered. 21 The evidence for the defendant is constituted by an affidavit from Stephen Timothy Dennis Christley, who is the chief executive of the Northern Sydney Central Coast Area Health Service, previously being the chief executive officer of the Northern Sydney Area Health Service prior to the amalgamation. That affidavit is quite extensive and contains a number of annexures. The affidavit sets out the background to the Area Health Service, the services provided, firstly, by the Central Coast Area Health Service and then the area covered by the amalgamated Health Service, the current defendant. It is sufficient to say that there are a number of hospitals and health facilities that are provided by the defendant and catering for a significant population over a wide area. 22 Dr Christley refers to the fact that as at January 2003 the maintenance department comprised 68 staff with trade qualifications such as carpenters, electricians, plumbers, fitters and turners, welders, air conditioning engineers, painters and handymen, and noted that many of the staff had been in the employment of the Area Health Service for at least ten years. The previous Area Health Service was also the employer of apprentices in a number of trades. The type of work undertaken by the Department both before and after the accident included preventative maintenance, some small areas of refurbishment, electrical repairs, servicing of boilers, general building maintenance and other work on request. 23 The transport department comprised of ten staff with trade qualifications, of mechanic, panel beater and spray painter. The work of that department prior to and after the accident included registration, collection and regular servicing of fleet vehicles, and at the time of the accident there were approximately 58 fleet vehicles owned by the Area Health Service. It was pointed out that documents annexed to the affidavit demonstrated that all vehicles listed had been serviced within six months of the incident involving Mr Crawford. While many people were employed in the Central Coast Area Health Service, being approximately 3,000, the 68 employed in the maintenance department and the 10 employed in the transport department nevertheless constitute a significant employment in those two areas. 24 Dr Christley's affidavit sets out a number of initiatives taken by the Area Health Service in the wider health field and details a number of awards it had received. I might say that this material, as the material later set out in the affidavit as to the general system of work and occupational health and safety provided by the defendant, is quite impressive. The affidavit speaks of the involvement of the defendant in staff education and also speaks of the involvement of the Area Health Service with the consumers of those services and its community participation. That material, again without detailing it, speaks well of the good industrial citizenship of the defendant. 25 There is also detailed the system of risk management and policies and procedures in relation to occupational health and safety adopted by the defendant, the approach to safety equipment and the managing of risk in the Area Health Service. Dr Christley points to the Area Health Service being committed to assisting injured workers to return to work and how this had been facilitated by working with rehabilitation co-ordinators in accordance with the Workplace Injury Management and Workers Compensation Act. 26 Quite detailed information was also supplied in relation to the resources made available by the defendant concerning occupational health and safety and the considerable steps taken after the accident by the defendant, including counselling of employees who required it, the facilities made available to both police and the WorkCover Authority in their investigation, the disposal of the truck out of a sense of not wishing to further traumatise the workers who had lost their colleague, and also a number of procedures that had been put into operation to address the risk that had been shown to exist by this particular accident. I was provided with information also as to the means by which vehicle faults were recorded. 27 This affidavit of Dr Christley notes that it was in late December 2004 at a Premier's conference in relation to this matter that the defendant accepted full responsibility for the incident, not wishing for the employees of the defendant nor Mr Crawford's family to be involved in a defended hearing. That, in summary, deals with the nature of the evidence provided by the parties. 28 I firstly have to consider the issue of the objective seriousness of the offence. I accept the submission of the prosecutor that these elements are made out on the evidence: the defendant had no written procedure for the reporting of vehicle faults; there was no training of either Mr Crawford, Mr Foley, Mr Welsh or Mr Ingram in relation to only properly trained persons performing maintenance or repair work on the tipper of any truck and/or in relation to the operation of tip truck trays; there was no safe work method statement on the operation of the tipper of the truck; there was no written procedure prohibiting use of faulty vehicles. It was clear that there was oral information to employees to report faults but there was no adequate enforcement of and maintenance of the system so as to ensure the reporting and rectification of faults. The plea entered by the defendant to this charge as particularised accepts a comprehensive failure in relation to the operation of the maintenance and transport department. 29 I think it is appropriate for that failure, in an area that employees some 70 to 80 people, to be considered in the overall context of the Area Health Service's operation involving thousands of employees. Having no previous convictions (although I am not informed over what period of time that record relates) nevertheless for this industry indicates that before this particular incident it possessed a good safety record. 30 It was submitted on behalf of the defendant that, although it was not stepping back from its plea of guilty, the practical reality was that it had no effective control over the action of Mr Crawford. That submission was modified to the extent that it was said that the evidence did not disclose a wilful or negligent disregard for safety by the defendant. I can accept that there was no wilful or negligent disregard for safety by the defendant, but I think the practical reality was that it was well within the capacity of the defendant to control its maintenance and transport staff in relation to the work that they were to perform. 31 Here, as often happens, the defendant has spent considerable resources, has a considerable number of people on the evidence involved in providing what is otherwise a quite comprehensive and safe system of work. Yet here in this relatively small area that same attention to detail does not appear to have been in operation. The steps taken promptly and in detail after this accident certainly confirm the view that the defendant takes a serious view of its obligations under occupational health and safety legislation. 32 Considering all of those matters it seems nevertheless to me that this is a serious breach. There are other matters, however, that need to be considered. In relation to deterrence it is not contested by the defendant that general deterrence has a role to play in setting a penalty. I will have regard to that factor. In relation to specific deterrence the prosecutor accepted that, having regard to the overall record and systems of the defendant and what it has done since the accident, that specific deterrence would feature at the lower end of the range. I am not satisfied that specific deterrence should have no role to play in setting an appropriate penalty, but I agree with the submission that it has, in all the circumstances of this case, a very much more limited role to play. 33 The subjective factors are considerable. As I have already indicated, this is a sizeable employer in an industry of which the transport and maintenance section is, as it has been referred to, not part of its core undertaking. Nevertheless, it has a very good record where the employees might be thought to be in various ways at some risk. Its prior record therefore is a significant factor to be taken into account in mitigation. 34 There is no doubt on the evidence, and it is not contested by the prosecutor, that this was an early plea. The defendant is entitled to the benefit of what is referred to as the usual and maximum discount of 25 per cent on account of that aspect. It also appears to me, not only from the early plea but from the evidence as to steps taken by the defendant following this accident that it has demonstrated contrition. The early plea is evidence of that. Counselling was provided to other workers and consideration was also given to the family of Mr Crawford. They are important matters to be taken into account. 35 The steps taken to address the risk that was demonstrated to exist as a result of this accident were steps taken promptly, as were the actions of the defendant taken promptly in complying with the improvement notices. Importantly there was co-operation throughout the investigation of the WorkCover Authority and co-operation with the Police authorities. All of those matters speak highly of the defendant and are deserving to be taken into account in reaching an appropriate penalty. 36 There is one further matter that needs to be considered. The defendant submits that the imposition of a substantial penalty would inevitably divert resources from the core activity of the Area Health Service, and that a substantial penalty would not add to the keen sense of responsibility already accepted by the Area Health Service. I am unable to accept that submission. Indeed, the Court on a number of occasions has rejected a similar proposition, for example the judgment in Inspector Batty v the Crown in the Right of New South Wales (Department of Education and Training) [2000] NSWIRComm 81, and the judgment in Inspector Searle v Western Sydney Area Health Service [2001] NSWIRComm 381. 37 The legislative intent is clear. The Act applies to the Crown in all its manifestations. In my view it is not appropriate in exercising the sentencing function for the Court to reduce the appropriate penalty because the defendant is performing an essential public service and can better utilise the money in providing that service. Good citizenship, however, is a matter that may be taken into account in mitigation of the severity of a fine and in assessing the subjective factors and I have done so. There is nevertheless, in my view, no basis for treating public bodies performing important public functions such as this defendant differently from other perhaps private defendants who might also be providing important functions and services to the community. Justice should be applied equally to those who appear before the Court. 38 The penalty that is to be imposed, having regard to all of the factors that I have referred to, does fall appropriately in my view in the lower range. Having considered those matters the Court makes the following orders: 1. The defendant is found guilty of the amended charge brought under s 8(1) of The Occupational Health and Safety Act 2000 to which it pleaded guilty in matter IRC 45 of 2005. 2. The defendant is fined the sum of $95,000 with half that sum to be paid to the prosecutor by way of moiety. 3. The defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as determined by the Court. 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