Industrial Court of New South Wales CITATION: Inspector Stephen Charles v Premier Precast Pty Limited [2009] NSWIRComm 136 PROSECUTOR: Inspector Stephen Charles PARTIES: DEFENDANT: Premier Precast Pty Limited FILE NUMBER(S): IRC 265 of 2008 CORAM: Backman J CATCHWORDS: Occupational health and safety - Occupational Health and Safety Act 2000 - plea of guilty to an offence under section 8(1) - employee falls into a concrete mixer while it is operating - employee inexperienced, alone and unsupervised at time of incident - reasonable forseeability of risk - whether absence of foresight mitigates seriousness of offence - other objective factors considered - subjective factors considered - whether fact that offence occurred within a short timeframe mitigated the seriousness of the offence - whether state of mind of defendant's managing director a relevant consideration - whether fact that defendant a small, family-owned corporation a relevant consideration - victim impact statements considered - penalty - orders LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Environment Protection Authority of NSW v N (1992) 26 NSWLR 352 Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Inspector Melissa Chaston v Sacco Builders Pty Ltd and Others [2008] NSWIRComm 152 CASES CITED: Inspector Michael Salmon v Provimi Australia Pty Ltd [2008] NSWIRComm 182 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Inspector Ross Wolf v Colebrook & Sons Pty Ltd [2008] NSWIRComm 231 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1997] NSWIRComm 44 WorkCover Authority of New South Wales (Inspector Maddaford) v Coleman (2004) 138 IR 21 WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd (2001) 105 IR 236 HEARING DATES: 4 February 2009 DATE OF JUDGMENT: 12 August 2009 PROSECUTOR: Mr P Ginters of counsel Solicitors: Criminal Law Practice Legal Group WorkCover Authority LEGAL REPRESENTATIVES: (Ms K Lockerby) DEFENDANT: Mr P Skinner of counsel Solicitors: Williams Love & Nicol Lawyers (Mr J Wilson) JUDGMENT: - 3 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BACKMAN J Wednesday, 12 August 2009 Matter No IRC 265 of 2008 INSPECTOR STEPHEN CHARLES v PREMIER PRECAST PTY LIMITED Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2009] NSWIRComm 136 1 Premier Precast Pty Limited entered a plea of guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: (b) The defendant failed to ensure that the moving parts of plant known as a Chicago Concrete Mixer ("plant") provided for use by employees at work at the premises were adequately guarded or had other appropriate controls in place. (c) The defendant failed to ensure that there was a safe system of work in relation to the operation, cleaning and maintenance of the plant. (d) The defendant failed to ensure that an adequate risk assessment was undertaken in relation to working near the moving parts of the plant. (e) The defendant failed to ensure that an adequate risk assessment was undertaken in relation to operation, cleaning and maintenance of the plant. (f) The defendant failed to ensure that employees were provided with such information, instruction, training and supervision in the operation, cleaning and maintenance of the plant as was necessary to ensure the safety of the defendant's employees. 2 The defendant at the time of the offence was a concrete product manufacturing company that manufactured small concrete products such as sewer lids and inspection lids. Frederick Garry Milton Thorley was the managing director of the defendant whose responsibilities included the training, instruction and supervision of employees of the defendant and ensuring compliance with the relevant occupational health and safety legislation. 3 On 1 March 2006, Peter Michael Barrett commenced employment with the defendant as a labourer, mould-assembler and stripper. For the first two days of his employment Mr Barrett undertook duties which included trowelling concrete, stripping, assembling and pouring concrete moulds at the defendant's premises. On 3 March 2006 at about 2:55pm, Mr Thorley instructed Mr Barrett to hose out a concrete mixer that was located on the premises. According to an agreed statement of facts, Mr Thorley's instructions to Mr Barrett consisted of the following: "take the yellow wheelbarrow and put it under the concrete mixer, turn the hose on, turn on the mixer, go up the ladder and hose it out, come down and empty the wheelbarrow and then hose it out again" 4 After repeating those instructions to Mr Barrett, Mr Thorley left the premises leaving Mr Barrett alone and unsupervised to clean the concrete mixer. Prior to 3 March 2006 for some five months, the mixer had been used infrequently to mix concrete. It had been used on the morning of 3 March 2006 to mix a small amount of black concrete. Inside the mixer were two paddles constructed of solid steel connected to an axle. Raw materials for concrete were poured into the mixer from the hopper through a mesh guard. While this process was being undertaken it appears that persons would normally stand on the guard mixing the concrete ingredients while the machine was operating. This was considered to be a safe practice by Mr Thorley on the basis that it had been performed in this way thousands of times before by employees including himself without incident. The concrete mixer had an on-off switch but it did not have cut-out micro-switching in relation to the guard which would otherwise serve to immediately stop the movement of the rotating paddles inside the mixer. The mesh guard was not fixed to the concrete mixer and could be removed. The task which Mr Barrett was directed to perform did not involve removal of the guard in order to hose out the mixer. The instructions to Mr Barrett issued by Mr Thorley in relation to the work however did not include an express direction not to remove the mesh guard from the mixer. 5 This was the first time Mr Barrett had attempted to clean the concrete mixer. Shortly after he commenced the task, he fell feet-first into the mixer while it was in operation. His legs became entrapped in the steel rotating paddles. Workers at the adjacent commercial property heard his cries for help and attended the premises. Mr Thorley returned shortly after and immediately turned off the power. He climbed into the mixer and attempted unsuccessfully to free Mr Barrett. Shortly after the ambulance and emergency workers arrived. They determined that Mr Barrett's torn right leg would have to be amputated in order to free him. The process of removing Mr Barrett from the mixer took somewhere in the vicinity of three hours. At some stage during his ordeal, Mr Barrett apparently informed an ambulance officer that he had removed the guard in order to clean the mixer and had slipped and fallen into it while he was cleaning it. In transit to the hospital, Mr Barrett suffered a cardiac arrest. He subsequently went into a coma and died of his injuries in hospital on 22 March 2006. Objective factors 6 In response to Mr Thorley's view that standing on the mesh guard was a safe procedure, the prosecutor sought to rely on a judgment of Haylen J in Inspector Michael Salmon v Provimi Australia Pty Ltd [2008] NSWIRComm 182 at [33] for the proposition that a system of work in place and functioning without incident for a considerable period of time is not necessarily a safe system. Although the proposition may not be doubted, it has little relevance to the circumstances of this offence. Those circumstances disclose that Mr Barrett was not standing on the mesh guard because it had been removed thereby exposing him to the risk of falling into the mixer while it was in operation. He was not mixing concrete, a process that involved the practice of standing on the mesh guard. 7 At the time of the accident Mr Barrett had only been working for the defendant for three days. He had no experience in the work he was instructed to do and was alone and unsupervised at the time of the accident. He was the recipient of clearly inadequate instructions. This is so in circumstances where the mesh guard was not affixed and could be removed. The guard could be removed while the mixer was in operation thereby exposing Mr Barrett to the very serious risk of falling into the mixer while it was in operation. Given the serious nature of the risk and its attendant serious consequences it was incumbent upon the defendant to issue precise and adequate instructions as to how Mr Barrett could perform the task safely. These various factors compel the conclusion that the risk to safety was reasonably foreseeable. 8 There was some dispute between the parties as to how the principle was to be applied in the sentencing process. According to the prosecutor, the question of foreseeability is to be assessed objectively by reference to the reasonable person in the position of the defendant, not whether the defendant subjectively foresaw the risk. Reliance for this latter proposition was placed on an observation by Hunt CJ at CL in Environment Protection Authority of NSW v N (1992) 26 NSWLR 352 at 358-359. The defendant advanced a contrary submission conceding first that the risk was reasonably foreseeable, but contending that because Mr Thorley did not foresee that Mr Barrett would remove the guard that this lack of foresight substantially mitigates the defendant's culpability. 9 The proper approach for a court when applying the principle has been emphasised in numerous judgments of this jurisdiction. First, the question whether the risk to safety was reasonably foreseeable is relevant to an assessment of the objective seriousness of the offence: WorkCover Authority of New South Wales (Inspector Maddaford) v Coleman (2004) 138 IR 21 at [87]. The existence of a reasonably foreseeable risk of injury will result in the offence being more serious in nature. The absence of foreseeability does not necessarily render the offence as being nominal or not serious: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [82]. Secondly, the test of foreseeability as applied to offences under the Occupational Health and Safety legislation is an objective one, that is, whether or not the ordinary jury person or reasonable observer could conceivably have foreseen the risk: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27 citing Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 364; WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1997] NSWIRComm 44 at 11. Thirdly, an inquiry into whether the particular risk to safety and the precise circumstances giving rise to exposure to that risk were actually foreseen by a defendant may be a relevant consideration on sentence. This has been acknowledged and applied in a number of judgments of this jurisdiction: see Inspector Kelsey v The University of Sydney at 11; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 at 452 (actual foresight of the risk to safety adds to the overall seriousness of the offence); WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd (2001) 105 IR 236 at [72] (actual foresight of the risk to safety increases the overall seriousness of the offence). 10 There can be no doubt in the present circumstances that the defendant, through its principal and managing director, Mr Thorley, did not actually foresee the risk to the safety of Mr Barrett which arose when the mesh guard was removed and Mr Barrett was exposed to the rotating steel paddles inside the mixer. This, of course, is an issue entirely separate from the issue of whether the risk to safety was reasonably foreseeable. As I have already found, the risk was reasonably foreseeable and this finding renders the offence objectively serious. Lack of foresight of the risk on the part of the defendant however does not necessarily result in a conclusion that the offence was not serious, or less serious. 11 The following additional findings as to the seriousness of the offence militate against such a conclusion. There was a strong likelihood of serious injury, even a fatality, arising from the circumstances of the offence. The tragic death of Mr Barrett manifests the degree of seriousness of the risk to his safety. The mixer was, potentially, an extremely dangerous machine while in operation. The mesh guard through which Mr Barrett was instructed to hose out or clean the mixer was not secured and could be removed. He was not explicitly instructed not to remove it. There was no interlocking mechanism to stop the operation of the mixer in the event that the guard was removed. Mr Barrett was an employee without relevant work experience having been "on the job" for less than three days. He was alone and unsupervised at the time of the accident. These factors which in combination facilitate the conclusion that the offence was objectively serious do not warrant a finding, in my view, that by reason of the absence of foresight of the precise nature of the risk to safety the offence was thereby rendered less serious or that the defendant's culpability is "substantially mitigated": see Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 at [11]. 12 General deterrence also falls for application here. There are countless cases in this jurisdiction of serious accidents involving dangerous machinery in the workplace. Most of those accidents could have been prevented by the implementation of simple and readily available measures. Members of the workforce who work with potentially dangerous machinery should not be exposed to risks to their safety arising from the failure of their employer, or the owners or controllers of the workplace, or the machinery in question, to ensure that the machinery is safe to operate and that the area in the vicinity of the machinery is safe to work in. 13 Specific deterrence is also a relevant consideration, particularly where, as here, the defendant continues in operation. This is so notwithstanding that the concrete mixer involved in the offence has been decommissioned, and notwithstanding the changes made to the defendant's systems of safety, instituted after the offence, a matter I will address in more detail shortly. The fact that the defendant continues to operate as a concrete manufacturer requires, without more, that the principle be taken into account: Capral Aluminium at [77]. 14 The defendant faces a maximum penalty of $550,000. Factors in mitigation 15 The defendant entered a plea of guilty at the earliest, or first reasonable opportunity. I propose, in these circumstances, to assess an appropriate penalty for the utilitarian value of the plea of guilty at 25 per cent. 16 As a separate consideration from the utilitarian value of the plea, the defendant is also entitled to leniency in recognition of the remorse shown by the plea of guilty. The absence of prior convictions also entitles it to leniency normally extended to an offender who is otherwise not adversely recorded. 17 The defendant also co-operated with WorkCover during the investigation and prosecution of the matter. 18 The defendant submitted in writing that the short period of time of the breach was a factor in mitigation of its seriousness. The submission was not further developed. In the absence of sufficient material with which the Court might have been able to consider the submission, I cannot agree. The fact that a breach of the 2000 Act occurred within a short time frame provides, of itself, without any foundational material, no support for a conclusion that it mitigates the overall seriousness of the offence. The objective factors present at the time of the offence, including the paucity of instructions, Mr Barrett's inexperience with regard to the task he was directed to undertake, the lack of supervision, and the fact that he had been in the defendant's employ for less than three days, serve to illustrate the seriousness of the defendant's breach. The fact that the offence occurred within a short timeframe, does not mitigate that finding. 19 The defendant also submitted in writing that the traumatic effect upon Mr Thorley of the circumstances of the accident, including his attempts to rescue Mr Barrett, and Mr Barrett's death, was also a factor in mitigation which the Court could take into account. It was not said how the Court could take this into account. In particular, it was not said how Mr Thorley's state of mind could be taken into account in mitigation of the seriousness of the offence committed by the defendant. The issue was not addressed by the prosecutor in submissions. 20 On the basis that there was no challenge to the defendant's contention that the traumatic effect of the circumstances of the offence on Mr Thorley may be taken into account in favour of the defendant, I propose to consider it. Mr Thorley, on the evidence, was the managing director of the defendant. His wife was the other director. Both were working directors. One possible basis for taking into account Mr Thorley's state of mind in mitigation of the penalty to be imposed on the defendant is that it may be considered in the context of contrition expressed by him in the aftermath of the accident: see Inspector Melissa Chaston v Sacco Builders Pty Ltd and Others [2008] NSWIRComm 152 at [59]-[61]. 21 The impact of the offence, and in particular Mr Barrett's accident and his death, have been described by Mr Thorley in his affidavit. Instead of attempting to summarise what is there stated I propose to set out Mr Thorley's account in full: [47] It has been very difficult for me to continue working and running Premier Precast since the accident. There is not a day goes by without me thinking of that dreadful day and the consequences that it has created. [48] I feel that Peter's accident has imprisoned me for life. It has created an immense strain on me personally as well as my family life and our business, such to the extent that I require psychological supervision. [49] The stress and pressure that I am consistently under is effecting [sic] my long term health through the increase [sic] consumption of alcohol, increased blood pressure, constant depression and an unknown future. [...] [51] I cannot begin to tell the Court how much pain and sorry I feel knowing that Peter died while working for me and the extent of guilt, blame and shame that I constantly feel. I will live the rest of my life always feeling grief stricken and sorrowful for what I have done to Peter's family. [52] It is devastating for me to know that Peter's children won't have a dad to play with or to experience the comfort and support a father provides. The anguish that I feel knowing that Joanne, Peter's partner, doesn't have a partner to confide in or to share the lives of her children with can never be expressed in words. I also feel very deeply for Peter's mother, Sherry, and his father, Michael, who has lost a son and Peter's sister, Kelly, who no longer has a brother. It is these people and my feelings for them that will be with me and torment me until the day I die. I will never forget the look of fear in Peter's eyes on that day. It is a vision that comes to bed with me every night. [53] Shirley and I had a star registered with the International Star Registry named the 'Peter Michael Barrett star' with the hope that his family are able to feel he is still watching over them and shining in their hearts. [54] Ever since the accident my life and the life of my family has been extremely torturous. We have not been able to make decisions for the future of our business or our private life. Our lives are at a stand still with the inability to make plans, or to set goals in any way. [55] We have not had a break in more than three years and rarely socialise as I feel ashamed and think people are judging me. My home has become a refuge where I feel safe from prying questions that are often asked. [56] I have questioned many times as to why a man in his prime can be taken from us. I continue to pray that peace of mind and happiness along with some normality can return to the Barrett family as well as my own. My prayers I hope will someday be answered. 22 Mr Thorley also annexed a report prepared by Marshall O'Brien. On 5 June 2008, Mr O'Brien was Mr Thorley's treating psychologist. It was Mr O'Brien's opinion that Mr Thorley had suffered a psychological trauma leading to a long term deterioration of his ability to function at pre-trauma levels. According to Mr O'Brien, Mr Thorley requires medical and psychological treatment for depression and anxiety. Mr O'Brien also said: Left untreated Mr Thorley's ability to function effectively at work and socially is likely to deteriorate over time with the potential that he would need to withdraw from all activities and associations linked to Mr Barrett's death. This is likely to have serious consequences for the continuance of his manufacturing business and possibly also his marriage. Furthermore he is likely to suffer health consequences of increased use of alcohol. 23 I am prepared to take this evidence of remorse into account as a factor in mitigation in determining penalty against the defendant under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. I do not take into account Mr O'Brien's opinion as to the likely effect of Mr Thorley's psychological condition on the continued operation of the defendant's business. The evidence in that regard is not sufficient, and indeed there would appear to be evidence to the contrary. 24 In written submissions the defendant contended that the defendant was a "family company" with attendant financial constraints. These factors according to the defendant would result in any fine imposed impacting personally upon the principals. 25 In oral evidence Mr Thorley said that despite the present "economic crisis" the defendant has been "going all right". He said it operates in a very good industry (the housing industry) and that at present it has "plenty of work for the next eight months at least". Mr Thorley also said that the defendant had forward formal contracts for work with the ACT Government. In submissions on behalf of the defendant the Court was informed that the defendant employed, at any particular time, two employees in addition to Mr Thorley and his wife who also work for the defendant. It was urged upon the Court that the defendant is a small family-owned company and that these were matters that the Court could take into account in mitigation of penalty. In support of the contention reliance was sought to be placed on the judgment of Inspector Ross Wolf v Colebrook & Sons Pty Ltd [2008] NSWIRComm 231. 26 In that judgment Kavanagh J considered a similar submission where the defendant was a small family company employing husband and wife, their son and one other casual employee. Her Honour took into account those factors in mitigation of the objective seriousness of the offence: see [27]. An additional factor however, taken into account by her Honour was the company's profitability about which evidence had been led in the nature of financial records. Those records showed that the company had suffered a progressive loss over three financial years preceding the sentence hearing. 27 No such evidence has been led in these proceedings, and as detailed above, the evidence suggests that the defendant, although a small family-owned company, nevertheless operates successfully within the industry. It has a solid future and is profitable. These facts distinguish it from the facts in Colebrook and would preclude this Court from making a finding similar to the finding made by Kavanagh J with regard to mitigating the penalty to be imposed. Victim impact statements 28 During the sentence proceedings, and after the prosecution presented its case on sentence and the defendant was formally convicted, two victim impact statements were tendered. The first was made by Mr Barrett's mother, Sherry Maree Stevenson, and the second by Mr Barrett's partner and mother of his children, Joanne Robinson. 29 The statements have been tendered on the limited basis allowed under the relevant statutory provisions which permit the Court to acknowledge the statements but not take them into account as part of the material in respect of the sentence to be imposed. Both statements reveal that Mr Barrett's death has had a devastating impact on the lives of both his mother and his partner. Both women have suffered terrible grief and loss and continue to suffer. The tragedy of Mr Barrett's death has taken a terrible toll on the physical and psychological health of both women. The Court extends its deepest sympathies to Mrs Stevenson for the loss of her son and to Ms Robinson for the loss of her partner, and father of her children. Penalty 30 In determining penalty against the defendant I have taken into account the objective seriousness of the offence, the maximum penalty, the subjective factors in mitigation and the absence of prior convictions. These factors have been considered by reference to the CSPA in particular s 21A. Orders 31 In Matter No IRC 265 of 2008 I make the following orders: (i) the defendant Premier Precast Pty Limited is convicted of the offence (ii) the defendant is fined $99,000 with a moiety to the prosecutor (iii) the defendant is to pay the costs of the prosecutor as agreed, or in the absence of agreement, as assessed. 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.