Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Colin West v Brambles Australia Ltd t/as Chep Australia [2003] NSWIRComm 266 PROSECUTOR: Inspector Colin West PARTIES : DEFENDANT: Brambles Australia Ltd t/as Chep Australia ACN 000 164 938 FILE NUMBER: IRC 2231 of 2002 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - prosecution under section 16(1) of the Occupational Health and Safety Act 1983 - manufacturer of wooden pallets - plea of guilty - good record - injuries caused by falling pallet during forklift operation - risk readily foreseeable - applicable policy not adhered to - general deterrence - defendant convicted of charge - discount - moiety to prosecutor - defendant to pay prosecutor's costs as agreed or assessed LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : Inspector Patton v Brambles Australia Limited t/as Gardner Perrott [2002] NSWIRComm 178 HEARING DATES: 07/23/2003 DATE OF JUDGMENT: 08/25/2003 PROSECUTOR: Mr DB O'Neil of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr JV Agius SC SOLICITORS: Minter Ellison JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 25 August 2003 Matter Number IRC 2231 of 2002 INSPECTOR COLIN WEST v BRAMBLES AUSTRALIA LIMITED T/AS CHEP AUSTRALIA Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 This prosecution was brought under s16(1) of the Occupational Health and Safety Act 1983 ('the Act'). The defendant pleaded guilty to the following charge: DID FAIL , contrary to Section 16(1) of the Occupational Health & Safety Act 1983 (NSW) to ensure that persons not in the Defendant's employment, and in particular Mr John Alexander Barnes, were not exposed to risk to their health or safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work. The particulars of the charge are as follows:- (a) At all material times the Defendant had a registered office in the state of New South Wales and traded as Chep Australia at the site. The Defendant undertook various activities at the site including the manufacture of wooden pallets in the course of its undertaking in the transport/freight business. (b) At all material times the Defendant employed Mr John Thompson ("Mr Thompson") as a Grade 3 Storeman. Mr Thompson's duties included pallet manufacture, forklift driving and painting, and other duties as required at the site. Mr Thompson had been so employed by the Defendant for approximately seven (7) years as at 19 April 2000. (c) At all material times Mr John Alexander Barnes ("Barnes") was employed by Romaly Holdings Pty Ltd t/as Pearson's Transport as a truck driver. As a part of his duties in the course of his employment with Romaly Holdings Pty Ltd, Barnes would attend upon the site in a truck, which truck would then be loaded and/or unloaded by employees of the Defendant such as Mr Thompson. (d) On 19 April 2000, Barnes in the course of his employment with Romaly Holdings Pty Ltd attended upon the site in a truck. A forklift operated by Mr Thompson an employee of the Defendant was being used to load pallets onto Barnes' truck. In the course of this operation, a pallet fell from the top of a stacked load of pallets which was being manoeuvred into position by the forklift, striking Barnes. (e) The Defendant, at the time that this accident occurred, had in force a Safety Manual, reference SM303 dated 25 July 1998. Relevantly, that Manual provides as follows: 5.2.4 At no time while a truck driver is in the cabin of his truck, or unroping/roping up his load, shall a forklift operator unload/load or attempt to do so. It is recognised that tautliner drivers may need to move the curtains on their trailer during loading/unloading. Forklifts must stay well clear of the trailer while this occurs. 5.2.5 If during the process of unloading/loading a truck, the driver approaches the vehicle, the loading process shall cease until the driver is clear. If a driver consistently approaches his vehicle, or insists on remaining in the cabin, the yard foreman shall approach him/her and failing the appropriate response, report the incident/driver to the office. The office shall then contact the driver's workplace and advise them of our policy and the reason for any delay." (f) The Defendant required Romaly Holdings Pty Ltd and employees of that company to comply with all of the Defendant's procedures, including the procedures referred to above. After the accident suffered by Barnes on 19 April 2000, the Defendant introduced a new policy which had the effect of excluding all personnel, whether employees or not, from loading areas during loading or unloading operations. (g) It is alleged that the Defendant failed to ensure that persons not in their employment, and in particular Mr John Barnes, were not exposed to risks to their health or safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work on 19 April 2000 at the site. On that date, Barnes attended the site and was present in the area of his truck whilst the loading process was taking place. Barnes' presence near to the truck during this process was in breach of the Defendant's policy referred to in paragraph (e) above. The policy introduced by the Defendant after the accident, namely one which excluded all personnel from loading areas, was not in force at the time of this accident. (h) In the subject accident, Barnes suffered serious injury, including three (3) fractures of the skull, total deafness in the right ear, severe hearing loss in the left ear, a loss of smell, a diminished sense of taste, changes in his voice due to damage to his throat, persistent dizziness and five (5) stitches in the lower left cheek resulting in a scar. 2 The agreed statement of facts relevantly provided: 4. At all material times, the Defendant manufactured pallets at 22 Jambali Road, Port Macquarie in the State of New South Wales (the "site"). 5. At all material times, the Defendant employed John Thompson ("Mr Thompson") as a Grade 3 Storeman. As at 19 April 2000, Mr Thompson had been employed by the Defendant for approximately 7 years. 6. At all material times, John Alexander Barnes ("Mr Barnes") was employed by Romaly Holdings Pty Ltd trading as Pearson's Transport as a truck driver. As part of his duties with Romaly Holdings Pty Ltd, Mr Barnes would attend upon the site in a truck, the truck would then be loaded or unloaded with wooden pallets by employees of the Defendant such as Mr Thompson. 7. On 19 April 2000, Mr Barnes in the course of his employment with Romaly Holdings Pty Ltd attended upon the site in a truck. A forklift operated by Mr Thompson was being used to load wooden pallets onto Mr Barnes' truck. In the course of this operation, a wooden pallet was dislodged from the stack of pallets being manoeuvred into position by the forklift, striking Mr Barnes. 8. On 19 April 2000, Inspector Colin West attended the site and subsequently prepared a factual inspection report. 9. Investigations by Inspector West revealed that Mr Thompson commenced employment with the Defendant approximately 7 years prior to the accident. At the time of the accident: (a) Mr Thompson's duties included pallet manufacture, forklift driving and painting, and other duties as required at the site; (b) Mr Thompson held a current forklift driver's authorisation and had obtained his forklift operator number on 17 March 1986; and (c) Mr Thompson had been loading and unloading wooden pallets in a similar fashion from approximately 20 trucks a week for 7 years. 10. At the time of the accident, the Defendant had in force a Safety Manual, reference SM303 dated 25 July 1998. The Safety Manual provided as follows: 5.2.4 At no time while a truck driver is in the cabin of his truck, or unroping/roping up his load, shall a forklift operator unload/load or attempt to do so. It is recognised that tautliner drivers may need to move the curtains of their trailer during loading/unloading. Forklifts must stay clear of the trailer while this occurs. 5.2.5 If during the process of unloading/loading a truck, the driver approaches the vehicle, the loading process shall cease until the driver is clear. If a driver consistently approaches his vehicle, or insists on remaining in the cabin, the yard foreman shall approach him/her and failing the appropriate response, report the incident/driver to the office. The office shall then contact the driver's workplace and advise them of our policy and the reasons for any delay. 11. Prior to the accident, the Defendant required Romaly Holdings Pty Ltd and its employees to comply with all of its procedures, including the procedure referred to above, while at the Defendant's place of work. 12. On 19 April 2000, Mr Barnes attended the site and was present in the area of his truck while the truck was being loaded with wooden pallets by Mr Thompson. Mr Barnes' presence near the truck during the loading process was in breach of the Defendant's procedure referred to in paragraph 10 above. 13. As a result of the accident on 19 April 2000, Mr Barnes suffered injuries, including three skull fractures, total deafness in his right ear, severe hearing loss in his left ear, a loss of smell, a diminished sense of taste, changes in his voice due to damage to his throat, dizziness and five stitches in his lower left cheek. 14. After the accident on 19 April 2000, the Defendant introduced a new practice which had the effect of excluding all personnel, whether employees or not, from loading areas during loading or unloading operations. 15. It is alleged that the Defendant, Brambles Australia Limited trading as Chep Australia (ACN 000 164 938) on 19 April 2000, at 22 Jambali Road, Port Macquarie, in the State of New South Wales, did breach section 16(1) of the Occupational Health and Safety Act 1983, in that, being an employer, it failed to ensure that persons not it (sic) its employment, and in particular, Mr Barnes, were not exposed to risks to their health or safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work. 3 Evidence was called by the defendant from Dr Michael Roy Jones, the defendant's Director of Operations Asia Pacific. He was not required for cross examination. 4 The evidence showed that this defendant had an impressive approach to its obligations under the Act. It had in place a policy, developed after the risk in question had been identified, which would have prevented the accident occurring, had it been adhered to. Only months prior to the accident, the defendant had investigated adherence to its safety policies at the site in question and had discovered no problems of compliance. 5 The circumstances of the accident had been investigated and as a result, the policy had been altered, so as to exclude truck drivers from the vicinity of operating forklift drivers. While the previous policy had relied upon supervisors to ensure that the policy was being observed, it also required the forklift driver to be constantly alert to the position of a truck driver. This policy also envisaged that truck drivers could move about during the forklift operations. This procedure thus raised the possibility that a truck driver might move to a position which was unsafe. This was what forklift drivers had to be alert to, under the policy in place. 6 The risk of injury, if pallets fell and struck someone standing in the vicinity, had been foreseen and steps taken to exclude it, but they were unsuccessful. Extensive steps were taken after the accident, to immediately alert other employees and other workplaces of the accident, so as to reinforce the need for applicable safety policies to be adhered to. The defendant's investigation also led to the development and implementation of a new policy, which also included an audit process designed to monitor and ensure continuous compliance with safety policies at the defendant's workplaces. 7 The case advanced for the prosecutor by Mr O'Neil of counsel, was that the objective seriousness of the offence could be assessed having regard to: (a) The Defendant had in place a detailed paper system; (b) The requirements of the paper system were not enforced on the date at the relevant site; (c) The Defendant's own documentation required: i. A significant onus upon the forklift driver to keep a lookout event whilst loading. ii. The Defendant's employees to take responsibility for visitors to the site. (d) The system in place allowed drivers to be in the general area where loading and unloading was taking place; 8 It was submitted that the detriment to safety here in question lay in the presence of the driver during the unloading process; the height from which a pallet could potentially fall and the weight of the pallets. The result was a real risk of serious injury, which was readily foreseeable. 9 It was also submitted that the simple steps which could have been taken by the defendant to avoid the risk, were relevant to assessing the seriousness of the offence. The new system, which excluded drivers from the area in which unloading was taking place, demonstrated this, as did the defendant's failure to ensure that the pre-existing system was followed. 10 It was accepted that while there was a need for general deterrence in the penalty here to be fixed, the need for specific deterrence was reduced, given the defendant's commendable approach, both before and after the accident. A 25% discount for utilitarian savings and the further exercise of the Court's discretion, for other subjective factors was also conceded. 11 The case advanced for the defendant by Mr Agius SC, was that the evidence demonstrated the defendant's case for the maximum allowable discount. The circumstances were such that the defendant accepted that the risk which it had identified and developed a safety system to preclude, was readily foreseeable. It also accepted that it had failed to ensure that the system was adhered to, thus explaining its plea to the charge. It was submitted, however, that in fixing penalty, consideration would be given to its approach to safety at its workplaces, both before and after the accident, as well as its response to the accident, its investigations and co-operation with the prosecuting authority and its demonstrated contrition, in respect of the injured truck driver. 12 It was common ground that the maximum penalty for the offence was $825,000. The defendant submitted that the approach adopted by Kavanagh J in Inspector Patton v Brambles Australia Limited t/as Gardner Perrott [2002] NSWIRComm 178 at [35] to [38] as to its prior record, should here be followed. Consideration 13 This is one of those cases where a defendant which, on any view, has an impressive approach to safety, has identified a risk; has devised a policy, which, if adhered to, would have prevented that risk from materialising; has trained its staff in the work and the applicable safety policy and has also monitored compliance with the policy. Despite all of this effort, the steps taken failed, identifying an obvious weakness in the applicable policy. A serious risk to safety materialised and serious injury has resulted. These matters are all plainly relevant to an assessment of the nature and quality of the offence, which thus arises for consideration. 14 The evidence showed, as the defendant accepted by its plea, that the risk here in question was a serious one, which was readily foreseeable. A person being hit by a pallet falling from a height, gives rise to a most obvious risk of injury. Why the forklift driver and the injured driver, both well experienced in the work in question, did not adhere to the applicable policy, was not clear on the evidence. Perhaps it was, as the prosecutor submitted, that the forklift driver was distracted by the work at hand and was thus not alert, as the policy required him to be, to the driver's position. Whatever may have been the explanation, the defendant accepted its responsibility for the breach of its obligation which resulted. 15 It follows that the plea must be accepted as having been properly entered. 16 The prosecutor accepted that in this area of its operations, the defendant had a good record, it having operated for some fifty years, ten at this site in Port Macquarie, without prior offence. Nevertheless, regard must also be had to the defendant's record of prior convictions under the Act, as Kavanagh J decided in Gardner Perrott. That record is plainly not a good one, despite the evidence as to the defendant's approach to its obligations under the Act. I follow the approach there adopted by her Honour, as to the defendant's record. 17 I accept that general deterrence must feature in the penalty here imposed. Forklift operations are notoriously dangerous, as the authorities well show. I, nevertheless, accept that in the circumstances of this case, the need for specific deterrence, as an element of penalty, is not as high as it might be in other cases, given the evidence that the defendant has, as I have noted, an impressive approach to safety, both before and after this accident, as Dr Jones' evidence well showed. I have not, however, excluded it entirely, being satisfied that it must play some part in the penalty here imposed. 18 I am also satisfied that the defendant is entitled to a 25% discount in penalty for its early plea and a further 10%, for the subjective matters relied upon, which I earlier outlined. As I have said, this defendant is entitled to a proper recognition for its approach, both to safety generally and what emerged from the circumstances of this accident, which the prosecutor accepted had been both appropriate and timely. 19 The maximum penalty here imposed by the Act is $825,000. Having regard to all of the matters I have referred to, I have concluded that a penalty of $120,000 should flow from this offence. After applying the discounts earlier mentioned, this results in a penalty of $78,000. Order 20 For these reasons I convict the defendant of the charge and order it to pay a penalty of $78,000, with a moiety to the prosecutor. 21 The usual order as to costs is that the defendant pay the prosecutor's costs, as agreed or assessed by the Court. The parties have liberty to approach, in the event that no agreement is reached. That liberty should be exercised within 28 days of the date of judgment. ------------------------ 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. 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