Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Gabrielle Belley v Rail Infrastructure Corporation. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 [2001] NSWIRComm 323 PROSECUTOR: Inspector Gabrielle Belley PARTIES : DEFENDANT: Rail Infrastructure Corporation FILE NUMBER: IRC 5177 of 2000 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 17(1)(a) - plea of guilty by successor to interests of previous statutory corporation - statutory corporations amalgamated then dissolved on creation of new statutory corporation - effect of transitional provisions - operation of s 51A of Act - only one amalgamating statutory corporation having prior convictions recorded - whether record of previous corporations transferred to new statutory corporation - whether record of one of the amalgamating entities only to be considered - statutory corporation responsible for safety rules - safety rules failed to make provision for work on railway lines with narrow clearances between lines - statutory corporation given access to rail network - failure of that corporation to train and supervise its employees - contractual obligation to apply safety rules of statutory corporation owning rail network - effect on culpability of defendant - role of statutory corporation responsible for maintenance of rail network - defendant's system of work leaving discretion in hands of workers - foreseeability - contrition by a corporation CATCHWORDS : Occupational Health and Safety Act 1983 s 15(1) s 16(1) s 17(1)(a) s 17(2) s 51A Transport Administration Amendment (Rail Management) Act 2000 Sch 7 Div 3 LEGISLATION CITED : Transport Administration Act 1988 s 19D s 50 s 89(2)(b) s 89(2)(c) Rail Safety Act 1993 Ampol Ltd v Environment Protection Authority (unreported, NSW CCA 26 October 1995) Byrne v Garrisson [1965] VR 523 at 528 Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at pp 698 - 699 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at par 73, par 74 Department of Mineral Resources v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 Fletcher Constructions Aust Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR at 77 - 81 Haynes v CID Manufacturing Pty Ltd (1995) 60 IR 149 Inspector Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255 Inspector Vierow v Rail Services Australia [2001] NSW IRComm 153 (22 June 2001) CASES CITED : Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 464 at 476 R v Thomson R v Houlton (2000) 49 NSWLR 383 R v Winchester (1992) 58 A.Crim.R 345 at 350 (1992) 58 A Crim R 345 at 350 Tyler v Sydney Electricity (1993) 47 IR 1 at 5 Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 at 456 WorkCover Authority of New South Wales (Inspector Gregory Dawson) v Waugh and Thora Sawmilling Pty Ltd (1995) 59 AR 89 at 100) WorkCover Authority of New South Wales v Capral Aluminium Pty Ltd (1998) 82 IR 468 WorkCover Authority (NSW) v Atco Controls Pty Ltd (1998) 82 IR at 84 -85) WorkCover Authority (Inspector Gilbert) v Energy Australia - formerly Sydney Electricity (1998) 85 IR 99 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd, unreported Schmidt J at 12.2) WorkCover Authority (Inspector Rech) v Sydney Market Authority (1997) 82 IR 134 WorkCover Authority of New South Wales (Inspector Shepperd) v The State Rail Authority of NSW (2000) NSW IRComm 179 at par 40 HEARING DATES: 11/19/2001 EXTEMPORE JUDGMENT DATE : 12/07/2001 PROSECUTOR: Ms L M McManus of counsel SOLICITOR: Ms R Parmegiani Legal Services Branch WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr J V Murphy of counsel SOLICITOR: Ms L Uriarte Allens Arthur Robinson JUDGMENT: - 56 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 7 December 2001 Matter No. IRC 5177 of 2000 Inspector Gabrielle Belley v Rail Infrastructure Corporation. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983. JUDGMENT [2001] NSWIRComm 323 1 On 27 October 1998, Mr Stephen Hockings was fatally injured at Trangie Rail Yard while he was carrying out shunting duties for the Rail Access Corporation. Following an investigation of the circumstances surrounding this fatal accident, Inspector Belley applied for the issue of an Order requiring the Rail Access Corporation to appear before the Industrial Relations Commission in Court Session. The charge which was alleged, in substance, was in the following form: That Rail Access Corporation, a statutory corporation pursuant to the Transport Administration Act of 1988, … on 27 October 1998, at the Trangie Rail Yard at Trangie in the State of New South Wales, who had, to any extent, control of non-domestic premises, to wit, the Trangie Rail Yards, which had been made available to persons, (not being its employees) as a place of work, did fail to ensure that the premises were safe and without risk to health, contrary to s 17(1)(a) of the Occupational Health and Safety Act 1983. The particulars of the charge were stated to be as follows: (a) the defendant, at all material times, was the owner of the Trangie Rail Yard at Trangie; (b) the defendant, at all material times, entered into an agreement with Freight Rail Corporation to allow freight trains to operate on the rail networks in New South Wales; (c) the defendant failed to ensure that warning signs had been erected in all locations having narrow track clearances to advise users of the railway lines in the Trangie Rail Yard; (d) the defendant failed to advise the Freight Rail Corporation of railway lines with narrow track clearances in the Trangie Rail Yard; (e) the defendant failed to ensure that only persons who had been trained in undertaking shunting duties on railway lines with narrow track clearances were allowed access to such railway tracks; (f) the defendant failed to ensure that a safe system of work was in place for persons undertaking shunting duties on railway lines with narrow track clearances; (g) as a result of the said failures, Stephen Hockings suffered fatal injuries. 2 From 8 March 2001 the matter was stood over for further mention on six occasions until 23 August 2001 when an amended Order was filed and a plea of guilty was entered. 3 On 12 February 2001, solicitors for the defendant filed a Notice of Appearance for the Rail Infrastructure Corporation (in its capacity as successor to the interests of the Rail Access Corporation). On 23 August 2001, an amended Application for Order was filed in Court naming the defendant as the Rail Infrastructure Corporation (formerly Rail Access Corporation), a step taken in recognition of legislative amendments which had created a new statutory corporation from the functions previously performed by Rail Access Corporation and Rail Services Australia. 4 When the matter was listed for the purpose of hearing the evidence and submissions on the plea of guilty, it was stated on behalf of the defendant that the plea of guilty had been entered by the Rail Infrastructure Corporation as successor to the interests of the Rail Access Corporation and that a Statement of Facts had been agreed between the prosecutor and the Rail Infrastructure Corporation solely in its capacity as successor to the interests of Rail Access Corporation. A significant issue arose when the prosecutor tendered the record of prior convictions in relation to not only the Rail Infrastructure Corporation and the Rail Access Corporation (which at the time attested to the fact that there were no prior convictions) but also the prior convictions of Rail Services Australia, which showed that between December 1999 and May 2001 there had been three convictions under s 15(1) and one conviction under s 16(1) of the Occupational Health and Safety Act 1983. The defendant submitted that the amending legislation which brought together the Rail Access Corporation and Rail Services Australia did not disclose a legislative intent to continue the criminal record of the previous corporations. In those circumstances, it was submitted s 51A of the Act did not apply with the consequence that the maximum penalty applicable was $550,000 rather than $825,000. 5 It will therefore become necessary to deal, to a certain extent, with the intricacies of amending legislation regarding the New South Wales railways in order to determine this issue. 6 The Agreed Statement of Facts set out all of the relevant matters concerning this incident and contained a selection of relevant statutory provisions and, in particular, dealt with the effect of the Transport Administration Amendment (Rail Management) Act 2000 which had amended the Transport Administration Act 1988 as at 1 January 2001. Because of the issues which have arisen on the hearing of this plea, it is appropriate that the rather lengthy terms of the Agreed Statement of Facts be reproduced at this point: 1. At all material times, the Prosecutor was an Inspector duly appointed and empowered by s48 of the Occupational Health and Safety Act 1983 (NSW) to institute proceedings in this matter. 2. This prosecution was originally brought by Inspector Belley against Rail Access Corporation. 3. At all material times, Rail Access Corporation was a statutory State-owned corporation pursuant to the Transport Administration Act 1988 (NSW) with its head office located at 55 Market Street, Sydney, in the State of New South Wales. 4. Pursuant to the Transport Administration Amendment (Rail Management) Act 2000, which amended the Transport Administration Act 1988, as of 1 January 2001: (a) Rail Access Corporation and Rail Services Australia were amalgamated to form a new statutory corporation, Rail Infrastructure Corporation. (b) Rail Access Corporation and Rail Services Australia are dissolved as separate entities. (c) Rail Infrastructure Corporation is taken to be a continuation of, and the same legal entity as, Rail Access Corporation and Rail Services Australia. (d) The assets, rights and liabilities of Rail Access Corporation and Rail Services Australia are the assets, rights and liabilities of Rail Infrastructure Corporation. 5. Following the enactment of the Transport Administration Amendment (Rail Management) Act 2000, the Application for Order was amended to identify the defendant as "Rail Infrastructure Corporation (formerly Rail Access Corporation)". 6. A plea of guilty has been entered in this prosecution by Rail Infrastructure Corporation in its capacity as successor to the interests of Rail Access Corporation. 7. This Statement of Facts has been agreed between the Prosecutor and Rail Infrastructure Corporation solely in its capacity as successor to the interests of Rail Access Corporation. 8. At all material times, Rail Access Corporation had entered into a rail access agreement with Freight Rail Corporation granting Freight Rail Corporation the right to use certain parts of the New South Wales rail network, including the Trangie Rail Yard at Trangie in the State of New South Wales. 9. At all material times, Freight Rail Corporation employed a number of personnel in its rail freight operations, including Stephen Hockings, 45 years of age, as an assistant locomotive engine driver and Ronald Simmons, 53 years of age, as a locomotive driver. 10. On 27 October 1998, Stephen Hockings was fatally injured at the Trangie Rail Yard when he was crushed between a stationary and moving train as he was carrying out shunting duties. Overview of the NSW rail industry 11. Until July 1996, the NSW rail network was owned, managed and maintained entirely by the then State Rail Authority of NSW, a statutory body created pursuant to the Transport Administration Act 1988 (as it then was). 12. In July 1996, the New South Wales rail industry was restructured by the Transport Administration Amendment (Rail Corporatisation and Restructuring Act 1996 (NSW) which amended the Transport Administration Act 1988. Under this legislation, the then State Rail Authority was broken up into 4 separate organisations: (a) Rail Access Corporation - a new statutory State-owned corporation whose functions included: (i) holding, managing and establishing rail infrastructure facilities on behalf of the State: and (ii) providing rail operators with access to the NSW rail network. (b) State Rail Authority of NSW - a new statutory body, responsible for the operation of efficient, safe and reliable railway passenger services. (c) Railway Services Authority of NSW (renamed in 1998 to Rail Services Australia) - a new statutory State-owned corporation whose principal objectives included being an efficient, safe and reliable supplier of goods and services to the rail industry. (d) Freight Rail Corporation - a statutory State-owned corporation established to operate efficient, safe and reliable rail freight services. 13. As mentioned in paragraph 4 above, as of 1 January 2001, the NSW rail industry underwent further structural changes resulting in the dissolution of Rail Access Corporation and Rail Services Australia and the formation of a new statutory State-owned corporation, Rail Infrastructure Corporation . Role of Rail Access Corporation 14. In the Second Reading Speech to the Transport Administration Amendment (Rail Corporatisation and Restructuring) Bill on 17 April 1996, the then Minister for Transport set out the intention of the Government that the new Rail Access Corporation was to be: …a small organisation with a strict focus on negotiation of access and, while it will have management responsibility for maintenance, train control, signalling, communications, and the like, it will arrange for the work to be carried out by other rail businesses and, potentially by private sector organisations. To perform its functions effectively, the Rail Access Corporation will develop and maintain an informed customer capability; it will understand and specify its needs and verify that they are being adequately provided by its suppliers, but it will not undertake such works itself - to do so would be to distract the management of the corporation from the more important task of administering the open access regime. 15. From 1 July 1996 Rail Access Corporation was the owner of the majority of the NSW rail network. 16. Monitoring and maintenance of the rail network owned by Rail Access Corporation was contracted to maintenance contractors, mainly Rail Services Australia. The Trangie Rail Yard 17. At the time of the accident, Rail Access Corporation was the owner of the main and loop lines at the Trangie Rail Yard. 18. The main and loop lines were transferred to Rail Access Corporation on 1 July 1996 as part of the reorganisation of the railway system pursuant to the Transport Administration Amendment (Rail Corporatisation and Restructuring) Act 1996. 19. Rail Services Australia was contracted by Rail Access Corporation to monitor and maintain the Trangie Yard. 20. As at 27 October 1998, the track centre between the loop and the main line at Trangie varied from 3270mm to 3310mm. 21. The main and loop lines at the Trangie Rail Yard were installed in approximately 1882. Some work was done at the Trangie Yard in approximately 1990 and 1996 but this did not affect the body of the siding. Therefore, the track clearances remained unchanged since 1882. Track clearance standards were revised in1957, 1976, 1987 and 1994. 22. The 1957 and 1976 standards stated that the minimum track should be 3658mm and 3660mm respectively. The 1994 standard (Standard C2104-1994) states track centres for new track must be 4000mm. 23. Accordingly, the main and loop lines at Trangie failed to comply with the standard applying at the time by 350mm to 390mm for existing tracks and 690mm to 730mm for new tracks. 24. The non compliant track clearances at Trangie were identified to the former State Rail Authority in 1995. 25. Rail Access Corporation produced various standards relating to track centre clearances and track examinations: (a) C 2104 - Structure Gauge 1994 - sets out the safe profile for the passage of vehicles and loadings. It states that Structure Gauge 1994 applies to all infrastructure both new and existing. Minimum design track centres for new work are 4000 mm. (b) C 2106 - Infringement of Transit Space Standards - sets out the conditions under which reduced safety clearance margins are temporarily or permanently authorised. (c) C 2107 - Base Operating Standards for Clearances - sets out the minimum safety clearance margin to be maintained . (d) C 2110 - Transit Space Handbook Commentary - sets out the assumptions made in the Handbook. It states "all track centres less than 4000mm are now non conforming and will need to be managed". (e) C 2430 - Exceedent Control Policy - sets out the policy for the establishment, use and maintenance of an exceedent control system for track. The purpose of an exceedent control system is to provide an auditable trail for all actionable exceedents from detection/notification to investigation, assessment, repair programming, repair action and certification. (f) C 2435 - Track Examination Handbook System Overview - outlines the procedure, recording and action for track patrol and examination. The system includes examinations of clearances and track centres on passenger lines and those carrying more than 10mgt every 12 months and other lines every 2 years. Tracks at Trangie yard fall into the other category. (g) C 2437 - Track Examination: Examination of Track and Structure Clearances - details instruction for track patrol of Rail Access Corporation infrastructure. (h) C 2445 - Track Examination: Examination of Track and Structure Clearances - details the policy for examination of lateral clearance to structures, vertical clearance to overheard structure and track centres between adjacent tracks. Point 6 states 'track centre examination is required on multiple track main lines'. Trangie yard does not have multiple track main lines. 26. Rail Access Corporation contracted Rail Services Australia to conduct inspections of the railway lines of the Trangie Rail Yard. An inspection report dated 19 May 1995 prepared by the former State Rail Authority was produced by Rail Services Australia to the WorkCover Authority. This report records the track centre clearances of the relevant lines at the Trangie Rail Yard. In relation to this inspection report, the Department of Transport, in the report of its investigation into this matter, concluded that it is 'reasonable to assume' that an appropriate report was submitted to the relevant Rail Services Australia officers. 27. This assumption on the part of the Department of Transport was based upon the fact that Rail Services Australia referred to track centre clearances at the Trangie Rail Yard "as part of the 1996/97 Major Periodic Maintenance (MPM) works as detailed in Schedule 10 of the Deeds of Agreement for the South West Region". An MPM identifies the work that Rail Services Australia through its inspection program recommends to be done. 28. A copy of a schedule which formed part of an MPM program was produced by Rail Services Australia to the WorkCover Authority. The bottom of the document carries an October 1996 date. The schedule refers to 'relocation of three turnouts, extend culvert and increase track clearances'. Rail Services Australia claims that an inspection was carried out on 1 October, 1996, however no inspection document has been produced. 29. Rail Services Australia claims that its records were lost in severe flooding at Nyngan in January 1998. 30. Rail Services Australia claims that this schedule was included in the 1997/98 MPM program that was forwarded to Rail Access Corporation. The schedule refers to more than 30 other matters. Nothing was put in the MPM program which indicated that the Trangie Rail Yard should be singled out as a special risk that required priority attention. Rail Services Australia claims that a similar reference was included in the schedule to the 1996/97 MPM program submission. 31. However, there is no evidence that prior to 27 October 1998, the track clearances at Trangie were identified, categorised or alerted to Rail Access Corporation by Rail Services Australia or Freight Rail Corporation as a safety issue or hazard to shunting operations which needed additional initiatives to be taken by Rail Access Corporation to provide for a safe system of work. Access Agreement with Freight Rail Corporation 32. At all relevant times, Rail Access Corporation granted Freight Rail Corporation access to certain parts of the NSW rail network (including certain aspects of the Trangie Rail Yard) subject to the terms and conditions of an access agreement dated June 1998 between Rail Access Corporation and Freight Rail Corporation (as amended by an Agreement of Variation dated 24 June 1998). 33. Under the Freight Rail Corporation Access Agreement, Freight Rail Corporation was required to: (a) Observe and comply with the Operational Rules. The Rules included the safeworking rules and procedures developed and updated by or to be developed and updated by Rail Access Corporation. (b) Observe and comply with the conditions of its accreditation under the Rail Safety Act 1993 (NSW). (c) Ensure that each of its employees and contractors responsible for the safe working of its trains held a certificate of competency pursuant to Division 2 of Part 2 of the Rail Safety Act. Overview of Safeworking rules 34. As noted in paragraph 33 above, under its Access Agreement with Rail Access Corporation, Freight Rail Corporation was required to ensure that its employees observed and complied with the safeworking rules. 35 At the time of the accident the subject of this prosecution, the relevant sections of the safeworking rules pertaining to shunting and propelling a train within a yard were SWU 116, 135, 136, 160, 161, 162, 163 and 342(Special). 36. SWU 116 - Yard working - contains instructions about working in yards. 37. SWU 135 - Train Radio Procedures - states that positive contact must be confirmed every 5 seconds between the driver and shunter. 38. SWU 136 - Train Radio Procedures - states that if a radio is used the shunter should work, where possible, on the side of the train opposite the driver to provide safety by having both sides of the train under observation. 39. SWU 160 - Introduction to Shunting and Marshalling - states that when shunting is done by hand signals, the shunter must remain in the driver's view at all times. The Unit states that the basic Safeworking principles are accurate knowledge, effective precautions and safe operating practice. (a) Accurate knowledge - SWU 160(e) requires all qualified safeworking employees to learn the yard thoroughly, local working, holding capacity of all roads and their fouling points and learn the correct method of applying and releasing brake. (b) Effective precautions - SWU 160(e) contains instructions about not leaving obstacles lying about; not standing, sitting or leaning close to point levers; not walking between couplings; injury from air hoses; not walking between moving vehicles; precautions for walking between stationary vehicles; precautions for using tail ropes or emergency towing chains; holding vehicles on grades; precautions for trains fouling another line. (c) Safe operating practice - SWU 160(e) contains instructions about: handsignals, points, precautions when a train has a red flag or red light and precautions when moving a train; leaving the vehicles secured and clear of adjacent lines; requires that the shunter plan the shunting work to be done and the way it is intended to be done and inform the locomotive crew about the plan of work; inspecting sidings before shunting into them. 40. SWU 161 contains instructions about gravitation, loose and locomotive shunting. 41. SWU 162 - Propelling a train has been replaced by No 342 (Special). However, it was still in the Basic Safeworking Manual WorkCover was given. 42. SWU 163 - Shunting under various conditions - contains instructions for shunting over a level crossing. 43. No 342 (Special) - Propelling a train - replaced SWU 162 on 8 December 1996. It contains instructions about propelling a train (when the driver is controlling the train from the opposite end). The circular states that if a train is propelled within yard limits the shunter must ride in or on the leading vehicle in order to control the movement. The only exception is if the vehicle is not suitable, the employee controlling the movement must walk in advance of the leading vehicle. 44. Circular No 342 also states when a train is propelling the movement must be carried out safely and at a speed consistent with the terrain, sighting distances ahead, location of any stationary vehicle(s) and the weather conditions to eliminate the possibility of collisions or other incidents. 45. Following the accident, Freight Rail Corporation reissued 342 (Special) reminding employees that all shunting while propelling a train must be carried out according to the circular. 46. In relation to the accident the subject of this prosecution, Freight Rail Corporation owned the rolling stock involved in the accident. 47. Since it came into existence in 1996, Freight Rail Corporation had conducted numerous activities (including shunting) in the Trangie Rail Yard. Mr Hockings' employment history and training 48. Mr Hockings commenced employment with the former State Rail Authority in 1976 as a labourer. Positions held by Mr Hockings from December 1979 to September 1987 included fettler, trainee engineman and engineman. In October 1987, Mr Hockings obtained the position of Assistant Driver in Training. He gained Assistant Train Driver level on 27 January 1998. 49. Freight Rail Corporation employed Mr Hockings as an Assistant Locomotive Engine Driver. 50. Freight Rail Corporation's records indicate that Mr Hockings received the following training by his employer: (a) Engineman Safeworking on 4 September 1998; (b) shunting on 4 December 1981 and 10 April 1996; (c) shunting (modified) on 30 July 1991 and 6 May 1993. 51. Freight Rail Corporation's records indicate that Mr Hockings was due to be reviewed on shunting on 10 April 1998. 52. The investigation by the WorkCover Authority revealed that there was no indication that training had been provided by Freight Rail Corporation to its employee shunters on how to plan their shunting work taking into account a risk assessment of the site. 53. In the 5 months prior to the accident, Mr Hockings had worked 2 wheat trains at the Trangie Rail Yard on 16 June 1998 and 22 June 1998 respectively. It could not be determined from the records whether he carried out any shunting or engine driving duties on these occasions. 54. Generally wheat wagons have a curved outline vacant deck area space that accords protection for shunters, particularly where there are only minimal clearances to passing objects. The Department of Transport investigation states that it is less hazardous for shunters to ride on wheat wagons than on flat or open wagons. 55. Mr Simmons had worked at Trangie Rail Yard many times before the accident on 27 October 1998. The Accident 56. On 27 October 1998, Mr Stephen Hockings and Mr Ron Simmons were given instructions by the Roster Clerk at Parkes to go to Trangie to load wagons of cottonseed onto a train, take the train to Dubbo and then finish back at Parkes. 57. Mr Hockings duties were to supervise and perform the shunting and loading. Mr Simmons was to be the engine driver. Both men were experienced locomotive engine drivers. 58. The train they were working had three engines attached. Train movements at the Trangie Rail Yard are restricted because there is a highway crossing on the southern side of the yard. The container loading area is at the southern end of the yard. Only five wagons can be loaded at one time because the spur line is only long enough to accommodate five wagons. In addition with three engines on the train, the train would pass the points that set off the level crossing and disrupt traffic. As a result Mr Simmons and Mr Hockings had to bring the train backwards and forwards over the level crossing to load the train. 59. The former crew had already placed eight loaded wagons onto the loop line. Mr Simmons and Mr Hockings had loaded another seven and were propelling (reversing) the train down the main line to pick up some more empty wagons to be loaded. Mr Hockings was carrying out shunting operations and riding on the steps of the last wagon to direct the train to the empty wagons at the northern end of the yard. Mr Hockings was communicating with Mr Simmons via radio and hand signals. 60. The distance from the front locomotive to the shunter was approximately 200 metres. As the engine driver, Mr Simmons, propelled backwards he noticed that there was not much clearance between the wagons in the loop line and the train. He applied the brakes. At the same time he saw Mr Hockings spin between the wagons and drop to the ground. 61. At the time of the accident the train was travelling at approximately 12 kilometres an hour which was within the recommended speed. 62. As a result of the accident Mr Hockings suffered fatal injuries. 63. The incident was the subject of an investigation by WorkCover and an investigation by the Department of Transport. 64. Relevant to the contribution made by the defendant to the accident, the WorkCover investigation concluded that there was inadequate clearance between the stationary wagons in the loop line and the wagons passing on the main line to ensure the safe passage of a person riding on the side of the wagon. 65. The Department of Transport's report of the investigation was annexed to WorkCover's report. The Department concluded that the primary causes of the accident were: (a) the propelling movement not being conducted in accordance with established safe working procedures; and (b) the track centres did not provide an adequate safe clearance for shunters to ride on wagons when the adjacent line was occupied . 66. The Department concluded that the secondary causes of the accident were : (a) Training and assessment of the train crew did not appear to adequately cover shunting operations involving reduced track centres; (b) The hazards associated with reduced track centres do not appear to have been properly identified and mitigated; (c) Evidence that an apparent lack of communication existed between the infrastructure owner and track maintainer in regards to the on-going maintenance and inspection of the site. Initiatives implemented by Rail Access Corporation following the accident 67. Rail Access Corporation issued a Safe Telegram to Freight Rail Corporation on 3 November 1998, which prohibited riding on wagons when the adjacent line at Trangie was occupied. Freight Rail Corporation issued this telegram to all its employees. 68. Rail Access Corporation gave every assistance to WorkCover and the police in relation to their inquiries into the accident. The charge 69. It is alleged that Rail Access Corporation on 27 October 1998, at the Trangie Rail Yard at Trangie in the State of New South Wales, who had, to any extent, control of non domestic premises, to wit, the Trangie Rail Yard, which had been made available to persons, not being its employees, as a place of work, did fail to ensure that the premises were safe and without risk to health, contrary to s17(1)(a) of the Occupational Health and Safety Act 1983, in that: (a) Rail Access Corporation, at all material times, was the owner of the Trangie Rail Yard at Trangie. (b) Rail Access Corporation, at all material times, entered into an agreement with Freight Rail Corporation to allow Freight Rail Corporation's trains to operate on certain parts of the rail network in New South Wales. (c) Rail Access Corporation failed to ensure that warning signs had been erected in all locations having narrow track clearances to advise users of the railway lines in the Trangie Rail Yard. (d) Rail Access Corporation failed to ensure that a safe system of work was in place for persons undertaking shunting duties on railway lines with narrow track clearances at the Trangie Rail Yard. (e) As a result of the said failures, Mr Hockings suffered fatal injuries. (f) Rail Infrastructure Corporation is taken to be a continuation of, and the same legal entity as, Rail Access Corporation and Rail Services Australia. (g) The assets, rights and liabilities of Rail Access Corporation and Rail Services Australia are the assets, rights and liabilities of Rail Infrastructure Corporation. 7 In addition to the agreed Statement of Facts, the prosecutor also tendered the Factual Inspection Report prepared by Inspector Belley dated 3 June 1999. The Factual Inspection Report records an inspection conducted on the day of the accident. The following observations were noted: 1. Trangie Railway station, Trangie. A weatherboard station building with concrete platform extending some distance in each direction from the building. 2. The station yard had four railway tracks. The main Sydney-Cobar line is adjacent to the station platform. Next to the main line is a loop line, which is used for shunting and holding wagons or for passing of trains standing at the station. It is connected to the main line at the Sydney end and at the Cobar end of the yard. Next to the loop line is a spur line connected to the main line at the Sydney end, used for holding wagons. Next to that spur line is another longer spur line, connected to the main line at the Sydney end and adjacent to wheat silos, that is used for loading of wheat and shipping containers. 3. A goods train was standing in front of the platform on the main rail line. The train consisted of three diesel electric locomotives numbered 4899, 48102, 48104 consecutively. They each had the logo FreightCorp on the side. The locomotives were connected to seven wagons, each with one or more containers on them. The train had an overall length of approximately 200 metres. 4. Behind the goods train on the mainline were another 14 empty wagons standing separate from the goods trains. 5. Eight stationary wagons, which had been loaded with cottonseed containers were standing on the loop line adjacent to the main line. 6. The cottonseed loading area is adjacent and south of the wheat silo. Wheat is loaded into wagons from the silo. The loading area for wheat is on the eastern side of the station; furtherest away from the station platform. 7. The loading area contained three silos, a storage warehouse and a shipping container loading area. A large front-end loader is used to load the shipping containers on to the rail wagon. Numerous shipping containers were standing in this area. 8. Senior Constable Glenn Bootle showed us the last wagon of the wagons connected to the locomotives, marked NOCY 34666Y. The dimensions of NOCY 34666Y were 20.1 metres long, approximately 2,750mm from the ground to the top of the wagon; 1100mm from the ground to the bottom of the wagon; and 2,880mm wide. 9. A set of rungs, which were 4,920mm from the end of the wagon facing the loop line. A metal ladder connected to the wagon commenced 300 mm above the ground and consisted of three metal rungs connected to the bottom underside of the wagon and three round horizontal bars on the side of the wagon. The position of the bottom rungs was inside the outline of the body of the wagon. There was evidence of boot prints on the frame of the wagon below the first round bar. … 11. The distance between the main line and the loop line measured from the inside of the railhead was between 1,835mm and 1,875mm at different locations. … 13. The space between the stationary wagons on the loop line and the wagon which Hockings was riding on the main line measured 280mm at the smallest point and 400 millimetres at the largest. … 15. Measurements of the track centres (distance between mid point of one rail line to mid point of an adjacent rail line) between main line and loop line from the Sydney end to in front of the station platform varied from 3,270mm to 3,210mm. 8 The General Manager, Operations and Safety - Commercial Division of the Rail Infrastructure Corporation, Mr O.R. Henry gave evidence for the defendant. He said that his functions included support to the commercial business units of Rail Infrastructure Corporation in the area of rail and occupational health and safety, railway engineering and train operations. At the time of the accident at Trangie Rail Yard he was employed by the Rail Access Corporation (RAC) and held the position of General Manger, Operations. In that role his functions included managing engineering standards, safe working standards and relevant auditing and network control contract management. As part of his duties he supervised the incident, management and risk minimisation initiatives arising from the incident at the Trangie Rail Yard. 9 Mr Henry noted the following features about the railway system: (a) the New South Wales rail network consists of approximately 8,500 track kilometres and associated infrastructure, 1,700 kilometres of which is electrified; (b) the New South Wales rail network supports approximately 2,520 interstate and intrastate passenger and freight train movements daily, accounting for approximately 800,000 passenger journeys and approximately 220,000 tonnes of freight. In relation to this network he stated that, after disaggregation of the New South Wales rail industry in 1996, most of the knowledge and expertise with which the former State Rail Authority had monitored and maintained the rail network now resided in the Railway Services Authority (RSA). At the time of disaggregation the New South Wales rail network was divided into 12 separate geographical areas known as "bundles". In July 1996, RAC entered into 13 Deeds of Agreement with RSA (one for each of the bundles). Under the Deeds of Agreement, RSA was engaged to provide capital works, major periodic maintenance and routine maintenance works and to provide certain superintendence and project management services. 10 At this time there was a Government policy of "contestability" of all construction and maintenance contract bundles which was to be phased in over four years from 1 July 1996. By May 1998 the Minister for Transport had issued a direction to RAC immediately suspending the programme of contestability of rail maintenance until July 1999 and requiring negotiation with RSA to amend existing contracts between RAC and RSA to facilitate RSA performing rail infrastructure maintenance for RAC during the suspension period. The suspension extended until the recent restructure of the industry in which RAC and RSA were dissolved. 11 Mr Henry said that as a result of these matters and directions, the RAC had limited authority to engage maintenance and construction contractors other than the RSA. In 1996 and 1998, there were Deeds of Agreement between RAC and RSA under which RSA was to carry out routine maintenance and upgrading work in the Country West areas. That area included the main line and loop line of the Trangie Rail Yard. 12 The Deed of Agreement for the Country West area imposed certain obligations upon RSA including: (a) to provide experienced and skilled personnel to perform the obligations under the Deed; (b) to provide services under the Deed with the professional skill, care and diligence expected of a experienced professional service provider; (c) examine all information relevant to the risk, contingencies and other circumstances having an effect on RSA's obligations which is obtainable by making reasonable inquiries. 13 In relation to the legislative scheme governing RAC, Mr Henry said that, at all material times, the RAC had functions conferred and/or imposed upon it by the Transport Administration Act 1988 including: (a) holding, managing and establishing rail infrastructure facilities on behalf of the State; (b) providing persons as rail operators with access to the New South Wales rail network. Pursuant to s 19D of the Transport Administration Act (as in force at the time of the accident involving Mr Hockings), RAC's objectives included: (a) to hold, manage and establish efficient, safe and reliable rail infrastructure facilities; (b) to promote and facilitate access to the New South Wales rail network in accordance with the New South Wales Rail Access Regime; (c) to be a successful business and, to this end: (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in RAC; (d) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates; (e) where its activities effect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in s 6(2) of the Protection of the Environment Administration Act 1991; (f) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates; and (g) to maintain reasonable priority and certainty of access for passenger services; It was said that each of these objectives were of equal importance. The monitoring and maintenance of the rail network owned by RAC, it was said, was necessarily contracted to maintenance contractors but mainly RSA. The RSA had the relevant maintenance contract which covered the area, including the Trangie Rail Yard. 14 Mr Henry then made reference to the Rail Safety Act 1993. The object of the Act was to promote the safe construction, operation and maintenance of railways. This was done through a scheme of accreditation of owners and operators of railways by the Department of Transport and for the certification of the competency of railway employees performing railway safety work. The object was also to be achieved by the development and monitoring of safety performance standards with respect to the safe construction, operation and maintenance of railways and there were to be carried out regular safety compliance inspections, the reporting of notifiable occurrences and the holding of inquiries into railway accidents and other incidents and the adoption of other methods aimed at securing rail safety. 15 At all material times, it was said that RAC had interim accreditation under the Rail Safety Act. To maintain that interim accreditation RAC had to comply with the conditions of accreditation as well as the duties and responsibilities laid down by the Rail Safety Act. 16 The Freight Rail Corporation (FRC), at all material times, also had interim accreditation from the Department of Transport under the Rail Safety Act. In order to maintain its interim accreditation, FRC was required to submit to the Director-General a comprehensive safety management plan that identified any significant potential risks that may arise from the operation of the rolling stock and specify the systems, audits, expertise and resources that were to be employed to address those risks. Under the Rail Safety Act, FRC was required to revise this safety management plan annually. 17 Mr Henry noted that, since it came into operation in 1996, FRC had conducted numerous activities, including shunting, at the Trangie Rail Yards. 18 It was an offence under the Rail Safety Act for a rail operator to employ a person to perform railway safety work who was not the holder of an appropriate certificate of competency. Certification attests, amongst other things, that the person certified is considered by the Department of Transport to have sufficient responsibility and aptitude to perform the railways safety work to which the certificate relates, in accordance with the standards submitted by the accredited owner or operator of the railway on which the railway safety work is to be performed. The Rail Safety Act also makes it a condition of accreditation that each organisation, and this included FRC, must itself ensure that all railway employees employed or contracted, by the organisation to perform railway safety work were adequately trained to perform the functions for which they were certified. 19 The Department of Transport had wide-ranging powers in relation to conditions of performance of operators and as the licensing authority for the operation on the system. Under s 50, the Director-General is required, at intervals he considers to be appropriate but not less frequently than once every 12 months, to cause to be inspected the performance of railway employees to ensure that accredited persons are complying with the terms of their accreditation. The death of Mr Hockings was investigated by the Department of Transport. The investigation revealed there was no indication that training had been provided by FRC to its employee in shunting on how to plan shunting work taking into account a risk assessment of the site. 20 In June 1998, RAC entered into an agreement with FRC under which FRC was permitted to have access to certain parts of the New South Wales rail network, including the Trangie Rail Yards. Under the Access Agreement, FRC was required to: ( a) observe and comply with the operational rules including the safe working rules and procedures developed and updated by RAC; (b) observe and comply with the conditions of accreditation under the Rail Safety Act, 1993; (c) ensure that each of its employees and contractors responsible for the safe working of its trains held a certificate of competency pursuant to Division 2 of Pt 2 of the Railway Safety Act 1993. 21 The safe working rules, which form part of the operational rules, were substantially reviewed and re-issued in 1993 by the former State Rail Authority. Following disaggregation of the industry in 1996, all of the employees responsible for the administration and management of safe working rules were vested to the new State Rail Authority by way of Ministerial Order. State Rail Authority then provided safe working services, including management and administration of the Safe Working Rules to RAC under contract. 22 At the time of the accident involving Mr Hockings, there were Safe Working Units dealing with shunting and propelling of a train within a yard. These units were SWU 116, 135, 136, 160, 161, 163 and 342 (Special). At the time of the incident at Trangie, 342 (Special) replaced SWU 162. However, in August 2000, 342 (Special) was replaced by revised SWU 162. 23 At the time of this accident, 342 (Special) made the following relevant provisions: Introduction · a train is deemed to be propelling when the driver is controlling the train from the opposite end to which the train is travelling; · … · when a train is propelling within a section or within yard limits, the Safe Working employee controlling the movement must ride in or on the leading vehicle for the direction of travel in order to control the movement. If the vehicle is not suitable, the employee controlling the movement must walk in advance of the leading vehicle; General Requirements · the propelling movement must be controlled by using hand signals, two-way radio, train radio or radio telephone instructions, or by using bell signals for self-propelled passenger trains; · when employees controlling the propelling movement are riding in or on the leading vehicle of the train in the direction of travel, the speed of the train must not exceed: 15 km/h during the movement; 10 km/h when passing over a road or pedestrian level crossing. 24 According to Mr Henry, shunting operations were both commonplace and a central part of railway operations. In the railway network of New South Wales there were approximately 400 locations of rail yards or sidings at which FRC would have performed shunting duties from time to time. 25 In relation to track centres, Mr Henry said that this was the distance between the centre of a piece of railway line, that is, a point equidistant between the two rails, and the centre of the closest adjacent piece of railway track. Historically, the risk posed by narrow centres was addressed by managing the operations to be conducted upon those parts of the affected tracks. The safe working rules were part of the way in which it was sought to manage the risk associated with narrow clearance during railway operations. 26 RAC had produced a number of standards relating to transit space and the safe profile for the passage of vehicles and loading. These standards were designed to manage the potential risk caused by narrow track centre clearances specifically so as to avoid collisions involving railway stock or between rolling stock and objects adjacent to the railway line. He specified five particular standards. 27 After this accident, on 3 November 1998, RAC issued what was described as a "Safe Telegram" to FRC which prohibited riding on wagons when the adjacent line at the Trangie yard was occupied by other rolling stock. FRC informed RAC that it had sent a copy of this telegram to all of its employees. On or around 1 February 1999, RAC provided to all relevant rail operators having access to the network, including FRC, a list of other sites where track centres were narrower than 3,660mm. 28 In May 1999, the RAC issued standard C2111 which was entitled " Track centre clearance signs for yards". The standard requires that warning signs be posted where track centres within yard limits are less than 3660mm. Such signs were erected at the Trangie yard. This standard was revised in March 2001, requiring that warning signs be posted where track centres within yard limits are less than 4,000mm. 29 In June 1999, RAC issued a Safe Working Circular 459. That Safe Working Circular provides guidelines for the conduct of shunting at locations with narrow track clearances. This was said to add an additional clause to SWU 160 dealing with basic shunting and marshalling. It dealt with shunting at locations with narrow track clearances between adjacent roads and the display of the "Danger, narrow track clearances" sign. The Circular also stated: · employees performing shunting at locations where these warning signs are displayed must not at any time place themselves between a moving vehicle and a vehicle standing on an adjacent track, or if riding on a moving vehicle between that vehicle and a stationary vehicle standing on an adjacent track … · at all locations where warning signs are not displayed personnel performing shunting movements must be able to maintain a safe working distance at least 2.0 metres between themselves and a moving vehicle, or if riding on a moving vehicle, 2.0 metres from a stationary vehicle or fixed structure. 30 On 7 April 2001, Safe Working Circular 459 was superseded by Safe Working Circular 524. The terms of the new Circular was similar to the terms of the previous. Both Circulars concluded with a warning stating that, if the safe working distance cannot be maintained, then working between or riding on moving vehicles was prohibited. 31 Although these narrow track clearances had been identified and now operated with warning signs, Mr Henry stated that it was not planned that such lines would immediately be re-configured. There was a total maintenance and replacement plan under which upgradings were conducted and these lines would be brought up to standard in accordance with the priorities already established. There are a number of priorities that had been identified and it was stated that it was not justified to disrupt that programme by giving priority to the narrow clearances in light of the other steps taken to manage the risks presented by such narrow clearances. 32 In relation to the formation of the Rail Infrastructure Corporation (RIC) brought about by the Transport Administration Amendment (Rail Management) Act 2000, Mr Henry stated that the risk management and auditing systems of RAC and RAS continued although they are currently being reviewed with the intention of creating one fully integrated system. All registered standard users were notified that the existing standards could be re-packaged but that the pre-existing RAC standards would be used on the RIC network. Those standards are now published electronically over the RIC internet website which ensures that references are made to current standards. All users who register for access to the standards are automatically included on the email address list for notification regarding standard changes. 33 In Mr Henry's view, the effective amalgamation of RAC and RSA would improve safety in relation to performance of maintenance work on the network because it will allow for more direct dissemination of information and directions and will remove practical obstacles which exist when one organisation audits another. Mr Henry also gave evidence about general safety initiatives being undertaken by RIC, including the formation of a top ten safety hazards list which was established in order to assist RIC to prioritise safety initiatives across its network. Amongst the key projects underway is a re-writing of the Safe Working Rules for the RIC infrastructure, the task was considered to be extensive and was estimated to cost in the vicinity of $6 million excluding staff training. SUBMISSIONS 34 The prosecution submitted that the primary factor to consider in relation to penalty is the objective seriousness of the offence (Fletcher Constructions Aust Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77 - 81; Lawrenson Dyecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474). 35 It was said the objective features in this case which called for the imposition of a substantial penalty were as follows: (a) the maximum penalty for a corporation proscribed by Parliament for the offence at the time it was committed was $550,000 where there were no prior convictions and $825,000 where there were prior convictions; (b) the need for general deterrence; (c) the nature of the offence in that it involved obvious risks; (d) the nature of the offence in that it was readily foreseeable; (e) the nature of the offence in that there were simple steps to remedy the failures; (f) the nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety. 36 The prosecutor emphasised that the need for general deterrence was one of the main purposes of punishment. It was said that a fundamental duty of the Court was to ensure a level of penalty for a breach such as would compel attention to occupational health and safety issues so that persons are not exposed to risk of their health and safety at the workplace. It was recognised that the Court at the same time had a corresponding duty to a defendant not to impose such a penalty as would be oppressively high. It should be sufficiently high to have a deterrent quality. (Fisher v Sammara Industries Pty Ltd (1996) 82 IR 384 at 388; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at par 73, par 74). 37 It was submitted that the defendant had management responsibility for rail infrastructure facilities and there was a failure to inform itself of safe working. It was put that, when considering a statute giving expression, as a matter of public policy to the standards of safety, management had a positive obligation of informing itself of circumstances of safe working (WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh and Thora Sawmilling Pty Ltd (1995) 59 AR 89 at 100). 38 It is a serious offence, it was submitted, where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible (Lawrenson at 26). This matter also went to the objective seriousness of the offence where there were available simple and straightforward steps to remedy the defects in the system (WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Ltd 25 February 1994, unreported, Schmidt J at 12.2) 39 Here the risk was readily foreseeable. The non-compliant track clearances at Trangie were identified on a number of occasions prior to the accident. The work here involved propelling the train where the driver drives the train from the opposite end to the direction in which the train is moving. The train was to be propelled past wagons on the adjacent loop line. As part of his duties as shunter, Mr Hockings had the option of riding on the back of the last wagon to direct the driver, Mr Simmons. Mr Hockings was using both a hand-held radio and hand signals to perform the task of shunting. Whilst the use of the hand-held radio did not require the shunter to be in sight of the driver, the use of hand signals did. There was no warning of the danger of the narrow tracks. In these circumstances, Mr Hockings chose to ride on the back of the wagon instead of walking ahead. The nature of the premises provided a foreseeable and obvious risk to safety, bearing in mind the use of the premises for shunting operations, the absence of warning signs and the system in place. 40 There were simple and straightforward steps able to be implemented to remedy the defects. Since the accident the defendant had placed signs at the premises and produced information specifically addressing the system of work for narrow tracks. The injuries sustained by Mr Hockings were fatal. Although the gravity of the injury actually resulting from the breach did not of itself dictate the amount of penalty, the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety (Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 at 456). 41 In relation to the subjective features, the prosecutor accepted that the defendant was entitled to have taken into account, as mitigating the objective seriousness of the offence, its plea of guilty (R v Winchester (1992) 58 A Crim R 345 at 350). Where the defendant enters a plea of guilty it is appropriate to apply the guideline judgment in R v Thomson; R v Haulton (2000) 49 NSWLR 383; WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of NSW (2000) NSW IRComm 179 at par 40). 42 It was accepted by the prosecutor that the defendant had co-operated with the WorkCover Authority investigation. 43 The defendant drew attention to the judgment of Kirby P in Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699, especially for the proposition that the Court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender. In this process, where a relevant fact is the subject of conflicting evidence, and where that evidence is of like probability, the Court should resolve the conflict in favour of the offender. 44 The defendant listed the relevant issues to be taken into account in determining the objective seriousness, that is, the nature and quality of the offence as being: (a) the extent to which the risk to health and safety was foreseeable and might have been remedied by simple measures (WorkCover Authority (NSW) v McDonalds (1999) 95 IR 283 at 450. Further, the exent to which the defendant stood by and ignored known risks or manifested a casual approach to safety (WorkCover Authority (NSW) v Atco Controls Pty Ltd (1998) 82 IR 80 at 84 - 85). Correlatively, the actions taken by the defendant after the accident may reveal in clear terms the simple decisive steps which may have been taken to prevent the accident (WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney at 21 - 22). (b) the extent to which the defendant had control over the primary causal factors of the risk (Atco 84 - 85). (c) the extent of the defendant's contribution to the relevant detriment to safety, or the contribution to that detriment made by others, (McDonald's at 437) (d) the existence of a settled system of work which would have prevented the accident if it had been adhered to by the relevant others (Warman v WorkCover Authority (1998) 80 IR 326 at 342; Department of Mineral Resources v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8. (e) general and specific deterrence (Fisher; Capral;) 45 In relation to the relevant subjective features, the defendant said they included: (a) a plea of guilty (R v Thomson; R v Houlton (2000) CCA 309; State Rail Authority of NSW v WorkCover Authority (NSW) (2000) 102 IR236. The primary consideration determining where in the range a particular case should fall is the timing of the plea; (b) lack of prior convictions (Department of Mineral Resources v Berrima Coal (2001) 104 IR 348 at 392; (c) Co-operation of the accused with the WorkCover Authority (McDonalds at 429); (d) Express contrition (McDonalds); (e) Measures introduced by the defendant to overcome deficiencies in safety which the accident highlighted (McDonalds); (f) The industrial "good citizenship" of the company is particularly reflected by its safety consciousness and the nature and extent of its safety systems (McDonalds at 454). 46 In relation to the significance of prior convictions in the determination of penalty, it was submitted that a prior conviction will trigger the operation of s 51A of the Act, which will result in an increase in what is regarded as the maximum penalty for the offence (Capral at 48). The presence of prior convictions may aggravate the punishment but it cannot result in the punishment than the principal offence would warrant (WorkCover v Capral Aluminim Pty Ltd (1998) 82 IR 468). The presence of prior convictions may cause the Court in its discretion to lessen the value that the subjective mitigating features may otherwise have had (Capral at 479). 47 The defendant noted that it was charged with a breach of s 17(1)(a) of the Act and that the concept of "control" was elucidated by s 17(2) of the Act. Thus, where a person, has by virtue of any contract or lease, has an obligation of any extent in relation to the maintenance or repair of any premises referred to in s 17(1)(a) or any means of access thereto or egress therefrom, that person shall be treated, for the purposes of s 17(1) as being a person who has control of the thing to which the obligation extends. 48 The ownership of the loop line and the main line at the Tragie Rail Yard was vested in the former Rail Access Corporation. The defendant is the successor to RAC. 49 The maintenance and repair of the Trangie Rail Yard was the responsibility of Rail Services Australia under the Deed of Agreement entered into in June 1998. It was said those circumstances made the following matters relevant: (a) RAC was constituted on the express basis that it would not carry out any maintenance or construction work in connection with the rail infrastructure that had been vested in it. It was to be a small organisation with a strict focus on negotiation of access, to have only a management responsibility for maintenance, train control, signalling, communications and the like. (b) by direction of the Government, RAC was required to contract with RSA for the conduct of the maintenance and construction work in connection with the railway infrastructure owned by RAC. (c) the Deed of Agreement imposed a number of obligations upon RSA including obligations to carry out the work in a skilful, careful and diligent manner, to provide experience and skilled personnel, to comply with relevant Australian standards and industry codes and to comply with RAC Safe working Rules and procedures. 50 The defendant submitted that the risk to health and safety upon which the charge was based is the risk that a person undertaking shunting duties at the Trangie Rail Yard, in a manner which involved that person riding on the rolling stock, might come into contact with an adjacent object because of the narrow track clearance. The conduct of the defendant which is said to be relevantly causative of this risk was its failure to: (a) ensure that warning signs had been erected to advise users of the railway lines and the Trangie Rail Yards of the narrow track clearances, and (b) ensure that a safe system of work was in place for persons undertaking shunting duties on railway lines with narrow track clearances at Trangie Rail Yard. 51 Attention was drawn to a recent judgment of mine, Inspector Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255, where the defendant had been found guilty of two breaches of s 15 of the Act. It was said that the matter was originally commenced against the RSA but after the amalgamation of RAC and RSA on 1 January 2001, the prosecution was continued against the current defendant, Rail Infrastructure Corporation. It was submitted that in those circumstances the defendant was not a party to whom s 51A of the Act applied and therefore the maximum penalty available in the current proceedings was $550,000. The question of penalty had not yet been determined in Inspector Barnard and no formal conviction had been entered by the Court. 52 Next it was submitted that an analysis of the objective seriousness of the offence and the defendant's culpability could not lead to the conclusion that this matter fell within the worst category of cases. This submission was developed by reference to the matters which follow. 53 The defendant was involved in administering the safe working rules. These rules were known to FRC. FRC was contractually obliged to observe the rules under the terms of the Access Agreement. 54 The Safe Working Rules were detailed. Amongst the matters addressed in them were: · The necessity of shunting operators being familiar with the Trangie Rail Yard, the local working requirements, the holding capacity of roads and their fouling points. · That the shunter should plan the shunting works and the way in which the works are to be undertaken and to inform the locomotive driver of this. · Procedures for ensuring that the shunting operator and the locomotive drivers can keep in contact with each other during the operation. The shunting operator must direct the locomotive driver by hand signals (where the person was in plain sight or through the use of radio communication). In the case of radio communication, the driver is to immediately stop the train if the shunting operator is out of communication for more than five seconds. · A procedure for checking the adequacy of the two-way radios and the reception to be obtained from them before commencing work. · A radio communicating protocol, including 'scripts' identifying the words which ought to be used. · A requirement that when a train is propelling during the shunting operation, the movement must be carried out safely and at a speed consistent with the terrain, sighting distances ahead, location of any stationary vehicles and the weather conditions to eliminate the possibility of collision or other incidents. 55 These safe working rules were directed, amongst other things, to the risk which arose in this case. It was to the defendant's credit that the rules showed an intent to look beyond the most immediately apparent risks and to build in layers of safety. Hence, attention was devoted to checking the mechanical efficiency of the radios and the setting down of a script for communicating by radio. 56 The Report by the Department of Transport concluded that there had been a failure by FRC to follow the safe working rules, particularly SWU 162/Circular 342 (Special), and that this contributed to the accident. The Report did express concern that the terms of SWU 162, and Circular 342 (Special) did allow scope for the exercise of a discretion by the shunting operator. 57 While the defendant accepted that criticism in the Department's Report, in mitigation, it pointed to the following matters: · The defendant's role is not that of a rail operator, and it does not employ persons who are engaged in rail operations. · It is the owner of infrastructure with the duty to ensure that the premises as constituted by that infrastructure are safe and without risks to health. · To the extent that a party in that position seeks to bind the persons using the premises to particular rules, the party does not thereby assume the obligation cast upon employers under the Act in respect of the working procedures that an employer is required to stipulate for its own employees. Those obligations extend to the creation of watertight rules backed up with monitoring, supervision and enforcement. · This is particularly so in a case where the premises represent almost the entire rail network of the State of New South Wales. It is just not practical for the defendant to look over the shoulder of every rail operator carrying out its operations in every corner of the network. · The practical extent of RAC's remit was limited to the laying down of safe working rules which identified the nature of the risk and identified the measures taken to avoid it. The rail operators have direct and realisable control over the activities of their employees, and thus, they have the responsibility for monitoring, enforcing, and where necessary, supplementing the defendant's rules in relation to the activities of the operator's employees. 58 The defendant accepted that the track centre clearances between the main line and the loop line at Trangie Rail Yard was inconsistent with the standards laid down. It was submitted that should not lead to a conclusion that there was a simple means available to the defendant to avoid the relevant risk which the defendant neglected to implement. This submission was made on the following basis: · Clearances between rolling stock and other wagons or objects can vary appreciably due to the substantially different profiles of various types of rolling stock; · In order to cater for this, the single universal minimum track centre clearances would have to posit a very wide minimum which may not be achievable in the physical circumstances of every location, and · To regulate the risks solely by reliance upon mechanical standard might lull operators into a false sense of security - leading them to believe that all manner of behaviours are, relatively, risk free. The method adopted was to manage the risk. That is why the defendant had in place quite detailed safe working rules and that the 1994 standard referred to the fact that non-conforming track would have to be managed. 59 The defendant had taken a number of steps since the accident which included: the positioning of warning signs in places where the track centre clearances are narrower than the standard, promulgating a rule preventing the shunter from placing himself or herself between a moving vehicle and any other object in any location where a warning sign appears; and in areas where there are no warning signs (because the track centre clearance meets the standard) shunters are directed to keep a minimum distance of two metres between themselves and other objects when carrying out shunting work. It was submitted that these steps did not indicate that there was a simple remedy which had been ignored by the defendant. While the practice is effective and was implemented in consultation with WorkCover it represented an evolution of the approach that the defendant had adopted up until the accident - it was not a radical departure from it. 60 Taking an approach through the decision in Atco, the defendant submitted that it did not have control of the primary causal factors. In Atco, Hill J concluded that two factors mitigated the objective seriousness of the offence under consideration: firstly, the employer had not stood by and ignored the danger but had attempted to rectify it; secondly, the primary casual factors were ones over which the defendant had no control. That was a case under s 16(1) of the Act, where his Honour found that the visiting courier driver and the employed forklift driver had both contributed to the accident which resulted in the courier driver being injured. He had parked his van in an area which was clearly used for loading and where forklifts operated and where there were warning signs that forklift trucks were operating in the area. The forklift driver had failed to take the simple precaution of looking over his shoulder while reversing. His Honour held that the primary cause of the accident was the forklift driver not looking behind him during the critical path of the period for which he was driving the forklift in reverse and, if he had observed this most basic and commonsense requirement of careful driving, then the accident would not have occurred. The actions of the van driver were held to be a contributory cause of the accident. It should have been obvious to him that it was dangerous to park his vehicle in the loading dock area where forklifts operated. In his Honour's view, the defendant really had no control over the primary causal factor. The defendant accepted that his Honour's reference to "primary casual" features was not a reference to a casual connection between the relevant risk and the actual omissions of a defendant upon which the liability of the defendant is founded, but rather that his Honour was referring to the primary causal factors which operated in practice to bring about the particular accident. It was submitted that this was a similar case. 61 It is appropriate to note here that in Atco, Hill J, later in the judgment, stated: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. I am satisfied that the defendant approaches its duties under the Act on that basis. But it is always possible to achieve greater effectiveness and success as this case demonstrates (at 85). 62 In applying the approach in Atco to the present matter, the defendant said that the primary causal factors related to the activities of FRC and its employees. The defendant accepted that, whilst it is clear that there was a causal nexus between the defendant's acts or omissions and the existence of a relevant risk to safety, the primary causal features of this particular accident were matters over which it had no control and, accordingly, it submitted that the defendant was entitled to some abatement in the objective assessment of its culpability. There was a significant contribution to the operative risks in this matter from FRC. The defendant's culpability was urged to be assessed in light of the contribution made by FRC. 63 It was the submission of the defendant that it had settled safety procedures in place, primarily the Safe Working Units. They were said to be procedures which were sound and complete having regard to the defendant's role and the scope of its responsibilities. In this respect, the defendant submitted that the case was not unlike the circumstances found in the judgment in Department of Mineral Resources v Kembla Coal and Coke (1999) 92 IR 8 where Walton, J Vice-President was moved to comment that in that particular case it was not a matter where the employer had omitted to introduce any system to deal with a known danger, but was a case where the system was insufficiently comprehensive. There was one layer of safety but there was no other layers of safety introduced by the defendant. That permitted his Honour to assess the objective seriousness as well above the lower end of the scale of culpability but short of the middle of the spectrum in sentencing. 64 In the alternative, if the safety procedures of the defendant were deficient they were deficient in a way similar to that dealt with in the Department of Mineral Resources case. The defendant submitted that the assessment of the nature and quality of the offence should reflect some mitigation flowing from these issues. 65 It was further submitted that consideration of deterrence in this matter would not operate to aggravate the objective seriousness of the offence. The issue of deterrence would not elevate the extent of the defendant's culpability beyond the level that is reached following a proper assessment based upon the matters raised in mitigation by the defendant. 66 In relation to an early plea, the defendant said that that occurred at the earliest opportunity in this case. The Order for Prosecution was served on or about 21 December 2000 and an amended Order for Prosecution was presented on 22 August 2001 and the defendant's plea of guilty was recorded on 23 August 2001. The amended Order was necessary to address the fact that, from 1 January 2001, the current defendant came into existence as a result of the merger of RSA and RAC; further, the amended Order was founded upon different particulars from the original Order. The time between the initial and the amended Order was taken up with the need to arrange a conference between the defendant and WorkCover pursuant to the Premier's memorandum of 9 October 1997 and the need for WorkCover to consider representations made by the defendant at that conference. It was not appropriate to draw an inference that the defendant had "dragged its feet" in entering its plea. In those circumstances, the defendant sought the maximum discount permissible for its early plea, namely, 25 per cent. 67 In addition to co-operating with the the WorkCover Authority in the course of its investigation of this incident, the defendant also co-operated with the investigation conducted by the Department of Transport. In both the evidence of Mr Henry and in its written submissions the defendant expressed its contrition for the events that had occurred. 68 Apart from the detailed initiatives implemented by the defendant immediately after the accident addressed to preventing a reoccurrence, there were other safety initiatives which the defendant has implemented in more recent times. The remedial initiatives were prompt and effective and the more general safety initiatives were evidence of the defendant's safety consciousness as an organisation. 69 These initiatives needed to be approached and understood in the context of the size and scale of the defendant's business. The defendant has significant responsibilities across a very large geographic area in respect of a very large number of assets and in terms of infrastructure. The defendant was now addressing accurate and timely communication of information as well as clarity and uniformity in safe working procedures. The defendant's role in completely "re-vamping" the safe working rules of the railway system was submitted to be noteworthy and an important factor to be considered on sentence. DELIBERATION 70 It is accepted that the primary factor to be considered in assessing penalty is the objective seriousness of the offence and that subjective factors play a subsidiary role (Lawrenson Diecasting). In this case, the defendant accepts that it failed to ensure that warning signs had been erected to advise users of the railway lines in the Trangie Rail Yard of the narrow track clearances and, secondly, to ensure that a safe system of work was in place for persons undertaking shunting duties on railway lines with narrow track clearances at the Trangie Rail Yard. 71 The existence of the narrow tracks was well known to the defendant and its predecessors. For a number of years standards for clearances have been established and progressively increased while there still remained narrow clearances such as existed at the Trangie Rail Yard. It was also known that with the variety of rolling stock in use, certain codes had to be introduced so that rolling stock would not be used where there were narrow clearances but would be confined to areas where the clearances were sufficient to allow the rolling stock to pass on adjacent lines. Despite all of this knowledge and awareness it was not until after this accident at the Trangie Rail Yard in 1998 that the document entitled "Track Centre Clearance Lines for Yards - C211" was introduced in May 1999 which provided for the erection of signs where there were track centres within yard limits less than 3,660mm, and, it was not until June 1999 that RAC issued "Safe Working Circular 459" which was said to be an additional clause for Safe Working Unit 160. That Circular stated that, as from Wednesday, 30 June 1999, the additional instructions of the Circular must be read in conjunction with Safe Working Unit 160 and made provision for shunting locations with narrow track clearances between adjacent roads. That Circular noted that at a number of locations narrow track centres exist which provide minimal clearance between vehicles on adjacent tracks. At these locations, warning signs were to be displayed which stated: DANGER Narrow track clearances. 72 There was a theme running through the defendant's submissions that, for many years although there were known to be narrow track centres, no accident of this nature had previously occurred. It is then projected from this position that the accident involving Mr Hockings was relatively unforeseeable. I cannot accept that submission. It seems to me a matter of commonsense that, if the track clearances were known to be narrow and that there were small and varying clearances between rolling stock carefully placed on these lines so that they were suitable, unless some clear instructions were given, there was also a real danger that a worker could be injured, and seriously injured, during shunting operations. Good fortune should not be seen as part of a safe system of work. 73 The other factor to be considered is that the method of work involved a train of substantial length being "propelled" with the guidance of a shunter operating at the other end of the train. The method of control was primarily by radio and/or hand signals, although Mr Hockings was equipped with a radio; he was able, in accordance with the Safe Working Units, to employ a combination of hand signals and use of the radio in performance of the shunting task. A shunter in the position of Mr Hocking, in addition, had a choice of riding in or on the last wagon or of walking in front of the last wagon. There was no direction given in the Safe Working Units as to how that discretion should be exercised and what matters were to be taken into account. In particular, there was no warning not to ride on the side of the last wagon where there were narrow clearances. It is not surprising that the Department of Transport investigation concluded that the primary cause of the accident was that the propelling movement was not conducted in accordance with established safe working procedures and that the track centres did not provide an adequate safe clearance for shunters to ride on wagons when the adjacent line was occupied. I do note that the Department concluded that the secondary causes of the accident were the training and assessment of the train crew did not appear to cover shunting operations involving reduced track centres, the hazards associated with reduced track centres did not appear to have been properly identified and mitigated, and that there was evidence of an apparent lack of communication existing between the infrastructure owner and the track maintainer in regard to the ongoing maintenance and inspection of the sites. 74 I accept the submission for the prosecution that there were simple and straightforward steps able to be implemented to remedy these defects. The simple step of placing warning signs in areas where there are clearances below the standard, and producing information directed specifically to the manner in which work should be undertaken on narrow tracks, were steps that were logically appropriate and available to be taken before this fatal accident. 75 In the context of s 15 and s 16 of the Act, the Full Industrial Court in Haynes v CID Manufacturing Pty Ltd (1995) 60 IR 149 stated: The general duties created by the OHS Act such as in ss 15 and 16, are clearly directed, we think, at obviating 'risks' to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the events charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer (at 159) Thus, later, in Tyler v Sydney Electricity (1993) 47 IR 1 at 5, the now frequently quoted passage laid down that, although the gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of the penalty, the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety. Bearing in mind the nature of the rolling stock in yards with narrow clearances and the failure to provide clear direction as to how such shunting work should be safely performed, the combination resulted in there being a serious detriment to safety. 76 In relation to foreseeability, the written submissions for the defendant accepted that the accident was foreseeable but the oral argument raised the issue of the "degree" of foreseeability. It was submitted in oral argument that the defendant would not suggest that there was no foreseeability but it was really "a matter of degree". It was said that it was significant that in 116 years no similar accident had occurred at the Trangie Yard. It was also said that Mr Hockings should have been on the other side of the last wagon because he was using a radio: SWU 136 made that a requirement. This submission ignores the fact that SWU 160 stated that, when using hand signals, the shunter was required to remain on the driver's side of the train during the shunting exercise. It seems obvious that, if the Safe Working Units did not prohibit use of hand signals when a radio was provided, and was effective then, so long as a shunter adopted a combination of control by radio and hand signalling he or she was obliged to remain on the driver's side of the train. The next submission made was that the shunter had not been trained in the yard adequately and therefore did not "learn the yard thoroughly" as required by SWU 160. It is suggested that if he had known the yard in accordance with SWU 160 the accident probably would not have happened. SWU 160, however, in terms makes no provision about narrow clearances. The requirement to learn the yard thoroughly is followed immediately by a requirement that the employee should memorise the location of all point levers and other objects that could be an obstruction so that they would not fall over them. SWU 160 then talks about learning the local working, which were the arrival and departure times, learning the holding capacity of all roads and their fouling points, to learning the correct method of applying and releasing hand brakes especially on interstate vehicles. It stated that spare couplings, tail ropes or other obstacles were not to be left so that people could fall over them. It directed that employees were not to lean, sit or stand close to any non-interlocked point levers during shunting work; not to walk between couplings or bend down and walk under them; not to risk injury form air hoses swinging about or blowing debris into the eyes when they are being detached from vehicles; not to walk between moving vehicles; not to walk between stationary vehicles; not to use tail ropes or emergency towing chains if it can be avoided; not to depend on air brakes alone to hold a vehicle; not to leave trains or vehicles standing foul of another line. Not one of these instructions made any mention of taking particular care and what steps should be taken where there was a narrow clearance. 77 In relation to the issue of culpability, there appeared to be two themes running through the submissions for the defendant. The first seemed to suggest that the statutory responsibility of RAC was so narrowly drawn that it could do little beyond laying down the Safe Working Units and obliging contractually those who obtained access to the network, such as FRC, to abide by such rules. The second theme appears to be a suggestion that the maintenance of the lines, and in particular the Trangie Rail Yard, was contractually in the hands of RAS at relevant times and, again, because of the narrow legislative responsibility granted to it, RAC was limited in what it could do. 78 I have difficulty with both these propositions and their capacity to significantly reduce the culpability of the defendant for this accident. Firstly, it was part of the statutory responsibility of the defendant to lay down safe working rules. During the calling of evidence and in submissions nothing was drawn to my attention which would remove from the defendant the responsibility of ensuring compliance with the safe systems it had laid down. It is no answer to say, as seems to be suggested in the oral argument, that RAC did not have the financial resources to have a person overseeing safety at every siding or yard being accessed by users. All RAC appears to have had is a paper system: compliance with that system was simply sought by making it a contractual obligation on the user of the network. The arrangements made no provision for how the user of the network might ensure compliance with the safe working system. Further, ensuring compliance with its own safe working system did not necessarily require physical presence of its employees at every Rail Yard. Spot checks and roving inspectors could hardly have been out of the question. 79 In relation of the maintenance of the line, ownership of the railway line network was vested in RAC. The maintenance of the network, by contract, was substantially with RSA. For many years, the rail centres at the Trangie Rail Yard were below the standard: the standard was revised on a number of occasions. In 1995 - 1996, there was a report regarding the Trangie Rail Yard where RSA recommended work be performed to "increase track clearances". It appears that these recommendations were sent to RAC in 1997 and 1998. There was no evidence as to what was done in relation to this report. Mr Henry expressed the view that the warning notices and current Safe Working Units effectively managed the risks associated with narrow clearances and that there was no warrant to depart from existing maintenance and delaying priorities by requiring all narrow clearances to be immediately upgraded to meet at least the minimum standard. For all of this, I cannot see why RAC does not bear substantial responsibility for maintaining narrow clearances which do not even meet its own minimum specifications. The idea that rail maintenance has been required by statute to be handled by other bodies does not absolve RAC from taking appropriate action where it finds or could conclude that its network is a detriment to safety. In this case, RAC knew that the lines at Trangie did not comply with the minimum standards and that it had a report from the maintenance contractor recommending that the clearances be increased. That report was in existence in 1996. 80 In the context of culpability, the defendant suggested that, because the Department of Transport report indicated inadequacies in the training of Mr Hockings by FRC (and, in particular, a failure to train shunters to plan their shunting work taking into account a risk assessment of the site) that factor was of such significance that it should be a mitigating factor in relation to its own culpability. The training that FRC might undertake must have included training in the operation of the Safe Working Units laid down by RAC. But those SWUs were themselves defective in that they did not, in terms, address the dangers associated with narrow clearances nor did they lay down the relevant factors in the decision making process when a shunter had to decide whether to ride on or in the leading vehicle when performing shunting duties. As found in the Department of Transport Report, the SWUs left the shunter with an option to use a combination of hand signalling and radio contact when there does not seem to be any reason why radio contact alone would have provided the safest method of performing this work. It can be accepted that FRC failed to provide the training identified in the Report of the Department of Transport, but I am not convinced that simply training FRC employees in the operation of the RAC Safe Working Units would have meant that this accident would not have occurred. There is every possibility that this accident would have occurred even with a thorough understanding and application of RAC's Safe Working Units. 81 I have noted in another matter the sometimes confusing provisions of the Safe Working Units. The same comment can be made in this case. The use of hand signalling and radios is dealt with in more than one SWU and the entire shunting operation is dealt with in a combination of SWUs and special Circulars. The picture presented, by way of instruction, is more confusing than it is elucidating of the system being imposed. That fact goes to the culpability of the defendant: the proposed wholesale reconsideration of the SWUs to bring about a better and clearer set of instructions, however, is a matter that may be taken into account in mitigation. 82 It may well be that the byzantine legislative provisions and Safe Working Rules which have been developed by various statutory bodies over the years has resulted in a confusing system of safety rules being imposed. Nonetheless, Mr Henry accepted that recent legislative changes bringing about RAC and RSA were no more than a relabelling of departments, and that people actually performing the work were one day working for a particular authority and the next day were working and performing the same task and undertaking the same duties for a newly named authority. It is somewhat disturbing that Mr Henry's evidence suggested, however, that some of the legislative changes appeared to have resulted in a loss of "knowledge" in the various new authorities created. If this did occur, it still could not absolve RAC from engaging the most appropriate persons to assist in the drafting and promulgation of the SWUs. This remained an essential obligation of RAC. It is of interest that, in the written submissions for the defendant, it accepted its obligations as extending to the creation of water tight rules "backed up with monitoring, supervision and enforcement". In these proceedings, there was no evidence which gave any content to the means by which the Rules were backed up by monitoring, supervision and enforcement. Indeed, the defendant's suggestion was that this was not part of its statutory role nor was it within reasonable financial resources available to RAC. 83 I am therefore not convinced that there was a significant contribution to the operative risk by the omissions of FRC. While I accept, on the evidence, that there were failures exposed in the approach and training provided by the FRC, I do not regard those failures as being of the same high level of contributing factors as was found by Hill J in the particular circumstances of Atco. While I am prepared to take into consideration the omissions of FRC, I am not able to accord the level of responsibility to FRC as submitted for the defendant. 84 In relation to the subjective factors I accept the defendant entered a plea of guilty in this matter at the earliest opportunity. It has co-cooperated with the investigation conducted by the WorkCover Authority and also the Department of Transport. On the basis of the utilitarian value of the early plea I am prepared to give a discount of 20 per cent on the ultimate penalty. 85 In this case, the defendant expresses its contrition but accepts that apart from its early plea of guilty and the remedial acts taken following the accident, it is difficult for the Corporation, (that is, not the employer), to demonstrate more clearly its contrition. It is a difficult if not unusual notion to be able to attribute contrition to a corporation. Despite this difficulty, corporations have been deemed able to demonstrate this characteristic in the same way as an individual may (Ampol Ltd v Environment Protection Authority (per Grove J) with whom Newman and Dunford JJ agreed, unreported, NSW CCA 26 October 1995). To the extent that the defendant has been able to express and demonstrate its contrition it will be taken into account as a mitigating factor. 86 In my view, general deterrence has a role to play in this case. Public authorities, including those closely related in running the State's railways, may be reminded in an emphatic way by the penalty imposed that they have a continuing obligation to search for and implement safe systems of work. 87 The steps taken since the accident by the use of warning signs and additions to the Circulars and SWU notices are a minimal response to the seriousness of the risk demonstrated in this case. Perhaps of more significance is the promise of a wholesale review of the safety instructions, and while that is a commendable and necessary step, it is too early yet to say how effective it will be. 88 The last matter concerns the question of whether or not it is appropriate to treat the defendant as having no prior record insofar as it is a successor to RAC. As I have set out earlier in this judgment, RAC had no prior convictions whereas RSA had a number of prior convictions. Counsel for the defendant made it clear that this was not a case where the new Corporation was attempting to avoid the consequence of past breaches by its former constituent bodies. The matter had been initiated against RAC but then amended after the formation of the Rail Infrastructure Corporation. 89 Counsel drew attention to the provisions of the Transport Administration Act 1988 as amended. Amendments brought about by the Transport Administration Amendment (Rail Management) Act 2000 appear in Sch 7 to the Act. Division 3 deals with provisions consequent on the merger of RAC and RSA and provides as follows: Section 89. RIC an amalgamation of RAC and RSA. (1) Rail Access Corporation and Rail Services Australia are amalgamated to form Rail Infrastructure Corporation. (2) On that amalgamation, (a) Rail Access Corporation and Rail Services Australia are dissolved as separate entities, and (b) Rail Infrastructure Corporation is taken for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as, Rail Access Corporation and Rail Services Australia, and (c) Without limiting the operation of this clause - the assets, rights and liabilities of Rail Access Corporation and Rail Services Australia are the assets, rights and liabilities of Rail Infrastructure Corporation … Section 92. Staff of RAC and RSA (other than CEO's) (1) In this clause "existing employee" means a person who was a member of the staff of Rail Access Corporation or Rail Services Australia immediately before the amalgamation of these corporations (other than the Chief Executive Officer of Rail Access Corporation or Rail Services Australia). (2) All existing employees are, on the amalgamation of Rail Access Corporation and Rail Services Australia, employees of Rail Infrastructure Corporation. (3) Except as otherwise provided by this Schedule and the Regulations, the terms and conditions on which existing employees are employed on that amalgamation (including terms and conditions as to remuneration, allowances, and duration of employment) are those on which they were employed by Rail Access Australia or Rail Services Australia immediately before that amalgamation. Section 93. Superseded references. In any other Act, or in any instrument made under any Act or in any other document at any time, a reference to (or required immediately before commencement of this clause to be read as a reference to) Rail Access Corporation or Rail Services Australia is to be read as a reference to Rail Infrastructure Corporation. 90 The defendant does not submit that these amendments have the result that this prosecution, commenced against RAC, cannot be pursued. This is not a case where legislative changes had the effect of dissolving a statutory body and making only limited transitional provisions in relation to civil matters such as considered by Hungerford J in WorkCover Authority (Inspector Rech) v Sydney Market Authority (1997) 82 IR 134. In that case, it was common ground that the Sydney Market Authority was being dissolved. It was a statutory corporation representing the Crown but was dissolved by Act of Parliament. When that occurred it ceased to exist in circumstances where it was proposed that there be a sale of the business to private enterprise. It was also common ground between the parties that, if the prosecution case and possibly any appeal was not finalised before the dissolution of the Authority, then the present charges would abate and effectively lapse. There would be no defendant and that would be indistinguishable from the position where there was a death of a natural person. His Honour noted the provision that, on the dissolution of the Authority, the assets, rights and liabilities (if any) of the Authority became the assets, rights and liabilities of the Crown. In his Honour's view, this was a transitional provision dealing with civil matters only. There was no transitional provision made expressly or by necessary implication dealing with the criminal liability of the Authority. It was held that the legislature had not chosen to maintain the entity for the purposes of finalising criminal charges. A case more closely resembling the circumstances which arise here is WorkCover Authority NSW (Inspector Gilbert) v Energy Australia - formerly Sydney Electricity (1998) 85 IR 99. That case involved a prosecution under s 15(1) of the Act concerning a linesman formerly employed by Sydney Electricity which had become Energy Australia. On a plea of guilty, Energy Australia had no prior convictions but Sydney Electricity, the original defendant and its predecessor, the Sydney County Council, did have prior convictions. The prosecution sought that the prior convictions be taken into account against Energy Australia. Objection was taken by the defendant which submitted that there was not a mere name change to Energy Australia but there was created a separate legal entity. Here, there had been an amalgamation of a number of legal entities and a separate management structure with a new focus on safety and a new corporate culture. Hungerford J held that, whether the charges continued after Sydney Electricity was dissolved depended upon the statutory transitional provisions under the Energy Act by which the new entity assumed the functions of Sydney Electricity. His Honour noted that, the ordinary rule was that on the dissolution of a defendant statutory corporation to a criminal charge, the charge abates and effectively lapses because there is no continuing legal person in existence against which proceedings may be maintained ( Rech ). Where the legislature creates a successor statutory corporation, the question of whether any criminal liability of the former body is assumed by the new body will depend on the terms of the statute effecting the dissolution on one hand and the creation on the other. His Honour then stated: In other words, if the legislature by express enactment provides the original and the successor bodies are one and the same legal person then it would follow that an undetermined criminal charge against the former would continue against the latter unaffected by the fact that the former was indeed dissolved. It may even follow that proceedings in respect of a criminal charge for an offence committed by the former body could be instituted against the new body even after the former had been dissolved, provided, of course, that any statutory limitation period did not otherwise operate as a bar. Again, the reason would be the new body was created with the same legal personalty as the former body (at 113). His Honour accepted that, where transitional provisions allowed a "liability" of the previous entity to be transferred to the new entity, the word "liability" was apt to embrace both criminal responsibility and civil responsibility (Byrne v Garrisson [1965] VR 523 at 528. The appropriate meaning and whether there should be an extended meaning will depend on the statutory context in which it is used. Importantly, in that case, his Honour was required to consider yet another body within the statutory framework where there was a subsequent dissolution and the constitution of another statutory State owned corporation. The transitional provision provided that on and from the dissolution of the first body, the new body was "taken for all purposes … to be a continuation of, and the same legal entity as" the previous body. His Honour was of the view that such a statutory transitional provision evinced a clear intention to transfer the criminal liabilities of the new body. 91 The amendments to the Transport Administration Act 1988, in s 89(2)(c) transferred assets, rights and liabilities of RAC and RSA to the newly created Rail Infrastructure Corporation. As Hungerford J found in Energy Australia that provision would be inadequate to transfer criminal liability of either RAC or RSA to the present defendant. The terms of s 89(2)(b) are almost identical to the provisions considered by Hungerford J in Energy Australia in relation to which his Honour was able to conclude that it was effective to transfer criminal liability to the new entity. In my view, his Honour was correct in applying that approach and that is the approach I will adopt to the present legislation under consideration in this matter 92 It is also worthy of note that Kavanagh J gave consideration to the effect of s 89 under the amending Act, in Inspector Vierow v Rail Services Australia [2001] NSW IRComm 153 (22 June 2001). There, proceedings had been commenced against Rail Services Australia just over three weeks after the amending legislation had dissolved RSA as a separate entity and created the Rail Infrastructure Corporation. Her Honour rejected a submission that the proceedings could not be amended to name the new entity and was able to reach that conclusion, in part, because of the effect of s 89. Her Honour held that the Rail Infrastructure Corporation was intended by the legislature to be a continuation of and the same legal entity as Rail Services Australia and assumed the legal liability of Rail Services Australia. 93 In its oral submissions, the defendant did not challenge the approaches I have referred to in Energy Australia and Inspector Vierow but submitted that clear words were required for the criminal record of a dissolved Authority to be transferred to the new entity. In my view, that submission is untenable. The defendant accepts the criminal liability of both RAC and RSA have been effectively transferred to the Rail Infrastructure Corporation. For the purposes of the operation of s 51A of the Occupational Health and Safety Act, the prior criminal record is inextricably linked to the criminal liability of the new entity. Further, in many respects, the criminal record is no more than an administrative process recording the convictions of, here relevantly, a corporation. Under this legislative scheme, while s 89 dissolved RAC and RSA "as separate entities", the dissolution is not of the same effect as found in the Sydney Marketing Authority case where the statutory corporation ceased to exist and its functions were privatised. In the context of s 89, there is on the one hand the dissolution of the two previous corporations but only after the amalgamation of those previous statutory corporations to form the new corporation. More importantly, the new corporation "is taken for all purposes … to be a continuation of, and the same legal entity as, Rail Access Corporation and Rail Services Australia …" 94 In my view, the transitional provisions, and especially s 89(2)(b), have the effect that, in these proceedings, the Rail Infrastructure Corporation as defendant, has a relevant prior record for the purposes of s 51A of the Occupational Health and Safety Act. I am persuaded, however, as a matter of discretion, that I should take into account the fact that, at the time of this accident and up until its dissolution and amalgamation, RAC had no previous convictions. After consideration of the matters I have referred to and after allowing the discount for the utilitarian value of the early plea and discounting for the subjective factors, the appropriate penalty in this case is $100,000. The prosecutor should have a moiety of the fine. ORDERS 95 I make the following Orders: 1. I convict the Rail Infrastructure Corporation of the offence with which it is charged under s 17(1)(a) of the Occupational Health and Safety Act 1983. 2. The Rail Infrastructure Corporation is fined an amount of $100,000 with a moiety thereof to the prosecutor. 3. The Rail Infrastructure Corporation shall pay the costs of the prosecutor as agreed or, failing agreement, as ordered by the Court. oo00oo 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.