Industrial Court of New South Wales CITATION: Inspector Foley v Kent Transport Industries Pty Ltd [2007] NSWIRComm 37 Prosecutor: Inpsector Lisa Foley PARTIES: Defendant: Kent Transport Industries Pty Ltd FILE NUMBER(S): IRC 5646 of 2005 CORAM: Backman J CATCHWORDS: Occupational health and safety - sentence under s 8(1) of the Occupational Health And Safety Act 2000 - plea of guilty entered - workers are injured after falling over first floor balcony railing onto spiked metal fence while lowering furniture - at time of offence defendant had no formal safe system of work or safe work procedure for the assessment of the structural integrity of balcony railings while removing furniture - no risk assessment undertaken - procedure left up to discretion of workers - risk to safety was risk of falling from heights - relevant sentencing principles considered and applied - penalty - orders. LEGISLATION CITED: Crimes (Sentencing Procedures) Act 1999 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Maddaford v CSR and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 CASES CITED: R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 WorkCover Authority of NSW (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 WorkCover Authority (NSW) (Inspector Shultz) v Hoffman's Kundabung Sawmilling Pty Ltd (2006) 155 IR 416 HEARING DATES: 29/06/2006 DATE OF JUDGMENT: 22 February 2007 Prosecutor: Mr M Selinger Solicitors: Carroll & O'Dea LEGAL REPRESENTATIVES: Defendant: Mr J Pearce, of counsel Solicitors: Mathews Folbigg JUDGMENT: - 11 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BACKMAN J Thursday, 22 February 2007 Matter No IRC 5646 of 2005 INSPECTOR LISA FOLEY v KENT TRANSPORT INDUSTRIES PTY LTD Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 37 1 Kent Transport Industries Pty Ltd has pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000. The offence arises out of an incident on 12 November 2003 at a private residence in Oxford Street, Rozelle when two of the defendant's employees were in the process of lowering a two-seater lounge chair over a balcony railing located on the first floor of the residence. During the operation the railing collapsed causing the two employees to fall between 4 and 4.5 metres onto a spiked metal garden fence. The employees, Michael Birks and David Lynas, sustained serious injuries as a result of the fall. Mr Birks sustained bilateral lower leg muscle, nerve and tendon injuries, fractured ribs, collapsed lung and right knee injuries. He has returned to work on "suitable duties" only. Mr Lynas sustained suspected spinal injuries, right lower leg muscle nerve and tendon injuries, fractured left metacarpal, left thumb and pointer finger and ligament damage to his right wrist. He has also returned to work on "suitable duties" only. The lounge chair also brushed against a third employee, Richard Adler, who was standing at ground level directly beneath its path. 2 The defendant, at the time of the offence, operated a furniture removal, storage and delivery service for both domestic and office relocations nationally and internationally. According to an affidavit sworn by the defendant's Chief Executive Officer, Stephen Pile, on 26 June 2006, the defendant was incorporated on 7 February 1974 and is Australia's largest privately owned family moving and storage company. As at the date Mr Pile's affidavit was sworn, the defendant employed 448 employees comprising 21 executives, 124 clerical staff and 303 removalist and packing workers. 3 Several months before the accident, Allan Ball, another of the defendant's employees, attended the residence in order to provide an estimate for the removal of all furniture from the premises, including the lounge chair involved in the accident. Mr Ball made a notation on a survey sheet he completed that same day, which said, "two x lounges over balcony". At that time, he did not assess the structural integrity of the railing. 4 On 11 November 2003, the day before the accident Terry Hynes, employed by the defendant as its priority client co-ordinator, attended the premises. He was concerned about the lounge chairs being removed via the balcony railing because of the confined area into which the lounges were to be lowered and because of the metal spikes at the top of the garden fence. He reported his concerns to the defendant's local operations manager, Steve Sloan. Mr Sloan then decided to utilise an experienced removalist team for the removal of the furniture at the residence. None of the defendant's employees who attended the residence prior to 12 November, including Mr Sloan, at any stage, assessed the structural integrity of the balcony railing. 5 On 12 November 2003, Mr Sloan directed Mr Birks to deliver additional furniture ties for uplifting the two lounges at the residence. At the residence, Alan Wilson, the leading hand, directed that the lounges be lowered over the first floor balcony. Before this task commenced, Mr Birks, according to the agreed statement of facts, gave the railing a "firm shake", and, "checked for stability". Mr Wilson tested the railing by placing his body weight on the railing and "giving it a good shake". This procedure was apparently the normal system of work applied by the defendant, to situations involving the lowering of furniture over balcony railings although it did not require employees to continue the task of lowering the furniture over balcony railings if they considered it unsafe. 6 The first lounge was successfully lowered from the first floor of the residence without incident. The second lounge was lowered by Messrs Birks and Lynas over the railing by hand with each holding a tie that was strapped around the lounge. The ties rested on and slid over the balcony railing under the direction of Mr Wilson. 7 At the time of the offence, the defendant did not have a documented safe system of work or a safe work procedure for the assessment of the structural integrity of balcony railings or for the manual lifting and lowering of furniture using straps or ties over the balcony of a multi-level building. Nor, according to the agreed statement of facts, had the defendant undertaken a risk assessment to determine the appropriateness of manual lifting and lowering of furniture over balconies. The system which existed at the time of the offence was that the defendant relied on its employees to satisfy themselves that the balcony and balcony railings were sufficiently safe for performing the task of lifting the furniture over the balcony. Nor, according to the agreed statement of facts, had the defendant provided its employees with any mechanical aids to assist in the removal of the lounges at the residence. 8 The particulars of the offence under s 8(1) are set out in an amended application for order and extracted below: The Defendant, being an employer on the said date at the said premises, did breach section 8(1) of the Occupational Health & Safety Act 2000 (NSW) ("the Act") in that the Defendant failed to ensure the health, safety and welfare at work of all the Defendant's employees, in particular David Lynas, Michael Birks and Richard Adler in that the Defendant: 1. Failed to provide and maintain a safe system of work for removal of furniture from the premises, in particular: a. By allowing employees to "assess" the capacity of balcony railings to bear the loads placed on the railing during furniture removal when the employees were not: i. trained; ii. qualified; nor iii. competent b. Failing to undertake an adequate assessment of the risks involved in removing two lounges from the premises. 9 The prosecutor, in oral and written submissions, characterised the risk to safety to Messrs Birks and Lynas as the risk of falling from heights, "incorporating the risk of the balcony collapsing". Leaving aside for the moment the risk of the balcony collapsing, in my opinion, the risk of falling from the first floor balcony arose from a combination of factors directly attributable to the acts and omissions of the defendant. 10 First, the facts disclose that prior to the accident, none of the defendant's employees had assessed the structural integrity of the balcony railing when attending the residence for various purposes associated with the task of removing furniture which was scheduled for 12 November 2003. Instead, the defendant's policy, when workers were sent to a site to remove or deliver furniture was to leave all decisions and safety assessments concerning the task to the discretion of the workers. The facts suggest that the defendant regarded the workers sent to the residence on 12 November as experienced furniture removalists. Nevertheless, the proposition that an experienced worker or employee is capable of unilaterally making decisions to ensure his or her own safety and the safety of others has never been acknowledged as the correct approach to occupational health and safety matters: WorkCover Authority of NSW (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [41]-[43]; WorkCover Authority (NSW) (Inspector Shultz) v Hoffman's Kundabung Sawmilling Pty Ltd (2006) 155 IR 416 at [61] [62]. 11 Secondly, the defendant had not undertaken or caused to be undertaken at the time of the offence, a risk assessment, either general or specific in relation to the removal of furniture from the residence. A risk assessment no doubt would have revealed that the lounges could only be removed over the first floor balcony and that consequently there arose a risk of falling from the balcony. A factual investigation report prepared by the prosecutor and tendered on sentence as part of the prosecutor's documents, discloses that the dimensions of the lounge involved in the accident exceeded the front entrance of the residence. It was therefore too large to be removed via the conventional way (that is, down the stairs and out the front door). The report also reproduced measurements taken by the prosecutor of the height of the first floor of the residence to ground level (approximately 4.79 metres), and the width of the balcony (approximately 1.57 metres). In addition, the dimensions of the spiked metal fence were measured and reproduced in the report (approximately 1.73 metres high from ground level). The metal spikes on top of the fence were measured by the prosecutor as approximately 180mm high and spaced at intervals of 145mm. A garden bed between the metal fence and the first floor balcony was, according to the prosecutor's measurements, approximately 1.6 metres wide. These measurements illustrate the close proximity of the metal fence to the front of the residence (which included the balcony). This proximity, if the defendant had performed a risk assessment, would have or should have alerted it to the obvious and potentially grave consequences of a fall from the balcony. 12 Thirdly, there can be little doubt that the lounge, the subject of the accident, was a heavy and cumbersome object. It required two removalists utilising straps or ties to lower it over the balcony railing to the ground. Once the lounge was manoeuvred over the railing the task of successfully negotiating its safe passage to ground level was entirely dependent on the strength of the balcony railing and on the actions of the two workers holding the straps or ties with only their feet as anchor points. Those circumstances, in my view, demonstrate the seriousness of the risk. The only measures which had been taken to test the stability of the balcony railing were when Mr Birks gave the railing "a firm shake", and Mr Wilson placed his body weight against the railing and "gave it a good shake". Clearly, these actions were inadequate. A proper assessment of the stability and security of the balcony railing, given the method chosen by the employees for lowering the lounge over the balcony, may well have revealed the dangers involved in such an operation. 13 The prosecutor, in written submissions, contends that the risk of the balcony collapsing was foreseen by the defendant, because the defendant's system involved its employees testing the stability of balcony railings by shaking them. I do not agree that this risk was foreseen, but, it was in my view a reasonably foreseeable risk in circumstances where the prevailing practice for testing the stability of a balcony railing located above ground level was the unsatisfactory and unprofessional method of testing the structure by simply shaking it. Other factors which reinforce this conclusion include the method utilised for removing the lounge over the railing, which relied on the structural integrity of the railing being capable of withstanding the weight of the lounge while it was suspended over the railing in mid-air and lowered to the ground. 14 The risk of falling from the balcony railing, given the acts and omissions of the defendant referred to above, was both obvious and reasonably foreseeable. In accordance with the authorities this places the offence in a serious category: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [81]-[82]. 15 The defendant relies on a submission that the most "significant risk" which was operative in the circumstances of the offence was the risk (to safety) arising out of "recent renovations" to the residence. According to the evidence in this regard, an inspection of the balcony railing conducted following the accident, revealed sub-standard workmanship in the form of inadequate fixing of the timber rails to the vertical posts. I have no doubt that this contributed to the risk of the balcony collapsing and in turn exacerbated the risk of falling but I do not see that the defective balcony railing was the most "significant risk". The evidence in relation to this issue is general and lacking in detail. The prosecutor relies on the risk of falling as the relevant risk to satisfy arising as a result of the various failures to ensure safety to which the defendant has pleaded guilty. The relevance of the issue of the defective railing as the result of sub-standard workmanship undertaken at some earlier unspecified stage by an unidentified builder instead falls for consideration, insofar as the details can be ascertained, in relation to the involvement of other parties in the offence. 16 The defendant joins with the prosecutor in advancing a submission that the involvement of the builder of the balcony railing is relevant to the determination of the culpability of the defendant. The Court has scant information in relation to the construction of the balcony railing to enable it to assess the defendant's culpability by reference to the role played by whoever constructed it. There can be no doubt, however, that the railing was defective by reason of sub-standard workmanship and that this in turn must have exacerbated the risk of falling. Moreover, the defendant cannot be held responsible for the sub-standard work which was performed by someone else and in relation to which it could not be reasonably expected to be aware. The impact of the defective railing and its role in exacerbating the risk of falling being matters about which the defendant cannot be held responsible will therefore be taken into account in the defendant's favour in determining its culpability. 17 General deterrence is also an important consideration in the sentencing process. It is necessary to compel the attention of employers who operate in similar industries, to the importance of ensuring the implementation of safe work practices and of conducting proper risk assessments in relation to the potential hazards involved in furniture removal, storage and delivery work. This is particularly so where such work is often undertaken at foreign work sites with which the workers are wholly unfamiliar. 18 Specific deterrence is also significant. The defendant continues to operate in the industry, both nationally and internationally, and seems to be a large-scale enterprise. It has apparently been operating in New South Wales since 1985. It has incurred, during that time, a prior criminal record consisting of two offences in 1998 and one in 2002, all dealt with in the Industrial Magistrates Court. The prosecutor submitted orally that this record was, "a very good record", although the prosecutor was unable to assist the Court by providing much background to the prior offences. The defendant said that the offence in 2002 involved an employee who cut his hand on a docking saw. Given the scale of the defendant's enterprise and the lengthy time in which it has been operating, I would agree that its record is a good one. In addition, the defendant no longer undertakes "over-the-balcony" lifts in the manner performed on the day of the offence. Nevertheless, specific deterrence remains an important consideration which I take into account: Capral Aluminium Ltd at [76], [77]. 19 Another factor which heightens the objective seriousness of the offence is the availability of relatively simple measures that would have obviated the risk. The defendant, immediately after the accident, implemented a number of impressive measures designed to ensure that its workers could remove furniture without being placed at any risk to their safety. Many of these measures are set out in the Agreed Statement of Facts as follows: In response to the incident on 12 November 2003, the Defendant took the following steps: (a) prohibited all balcony work within the company nationwide; (b) conducted an incident investigation; (c) formulated a Risk Assessment Team to develop and implement long-term control measures; (d) developed and documented a safe system of work for undertaking work at a client premises; (e) conducted training on safe system of work and the use of job safety analysis to conduct site-specific risk assessment for each removal; (f) instituted a procedure of only removing furniture over a balcony by means of a mechanical device such as a vehicle mounted crane. 20 All these steps which seem reasonably simple and straightforward could have been taken by the defendant at any time before the offence. 21 The very serious injuries suffered by Mr Birks and Mr Lynas manifest the degree of seriousness of the risk to safety. Although the fact of injury alone does not dictate the seriousness of the offence or the penalty, it nevertheless indicates in the circumstances here that the breach of the Act had every prospect of serious consequences: Maddaford v CSR and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] [18] [23]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 22 The defendant, since the accident, has implemented a number of impressive measures and practices all designed to ensure the safety of its employees. Many of these measures are outlined above. In addition the defendant has in place an occupational health and safety committee which meets quarterly to discuss occupational health and safety issues. Minutes of the meetings are disseminated to employees on a noticeboard. The committee also regularly meets with the operational staff to discuss Job Safety Analysis (JSA) forms, the identification of hazards and risk control measures. The committee also ensures that accredited trainers are on site at various job locations in order to conduct the required training and site-specific assessments. The defendant now ensures that its employees receive regular training. To facilitate this, a training register is kept, a copy of which was produced for the purposes of these sentence proceedings. These measures and procedures will be taken into account in the defendant's favour. The formation and functions of the committee is also demonstrative of the defendant's commitment to safety issues which will be taken into account on sentence in its favour. 23 The defendant has prior convictions which means it faces a maximum penalty of $825,000. 24 The defendant entered a plea of guilty to the offence. The prosecutor concedes that the plea was entered at the earliest opportunity. The defendant is therefore entitled to a discount of the sentence in accordance with the principles in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104. I consider the appropriate discount for the utilitarian value of the plea is 25 per cent. 25 The defendant also cooperated with WorkCover during that Authority's investigation into the accident on 12 November 2003. By reason of its plea of guilty and as a separate consideration from utilitarian principles, the defendant has also exhibited contrition and remorse. All these matters will be taken into account in the defendant's favour in the assessment of penalty. 26 The defendant has also provided substantial and ongoing assistance to the accident victims, Mr Birks and Mr Lynas. Both workers continue to be employed by the defendant. The defendant provided rental assistance and bond money to Mr Birks to help him to find accommodation. Monies in addition to worker's compensation payments were also paid to both employees so that they did not suffer any shortfall in wages during their rehabilitation. Transport to and from work was also organised for them by the defendant. At the time of the accident, and while the two workers were hospitalised, Mr Graham Kent, one of the owners of the defendant corporation, visited them daily. Other senior employers of the defendant also visited them regularly in hospital. This level of assistance to the injured workers operates as a mitigating factor on sentence. Penalty 27 In determining penalty against the defendant, I have taken into account the objective seriousness of the offence, the personal factors described above, the prior convictions and the defendant's culpability by reference to the role, insofar as it can be ascertained, of the person responsible for the construction of the defective balcony railing. These factors have been considered by reference to the Crimes (Sentencing Procedures) Act 1999 in particular s21A. Orders 28 In Matter No IRC 5646 of 2005, I make the following order: (1) The defendant, Kent Transport Industries Pty Ltd, is convicted of the offence. (2) The defendant is fined $110,000 with a moiety thereof to the prosecutor. (3) The defendant is to pay the costs of the prosecution in the amount of $21,698.15. ___________________ 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.