Industrial Court of New South Wales CITATION: Inspector Wong v Clarence Valley Council (No 2) [2006] NSWIRComm 340 PROSECUTOR Inspector Daryl Wong PARTIES: DEFENDANT Clarence Valley Council FILE NUMBER(S): IRC 5291 of 2005 CORAM: Staff J CATCHWORDS: Occupational health & safety - Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 - Local Government Council - Accident occurred when tip-up truck ran over worker during road resurfacing - Foreseeability - Public interest affected by nature of defendant - Availability of simple and obvious remedial measures - General deterrence of primary importance - Specific deterrence - Subjective factors - Plea of guilty - Penalty imposed Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Local Government Act 1993 Occupational Health & Safety Act 2000 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 Inspector Lancaster v Wollongong City Council [2005] NSWIRComm 79 Inspector Patton v Shoalhaven City Council [2005] NSWIRComm 421 Inspector Wong v Clarence Valley Council [2006] NSWIRComm 250 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 CASES CITED: R v Thomson; R v Houlton (2000) 49 NSWLR 383 U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Another (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 WorkCover Authority of New South Wales (Inspector Ian Hannah) v Keough's Plant Hire Pty Ltd [2005] NSWIRComm 118 WorkCover Authority of New South Wales (Inspector Ian Lancaster) v Burnshaw Constructions Pty Ltd (2002) 121 IR 119 WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 WorkCover Authority (NSW) v Parkes Council (unreported, 10 April 1996) HEARING DATES: 25/10/2006 DATE OF JUDGMENT: 11/03/2006 PROSECUTOR Mr D O'Neil of counsel Solicitor: Ms F Miller WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr A Moses of counsel Solicitor: Mr P Roland Foott Law & Co JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 3 November 2006 Matter No IRC 5291 of 2005 INSPECTOR DARYL WONG v CLARENCE VALLEY COUNCIL (NO 2) Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 JUDGMENT [2006] NSWIRComm 340 1 Clarence Valley Council ("the defendant"), has pleaded guilty to a charge brought by Daryl Wong, an Inspector of the WorkCover Authority of New South Wales ("WorkCover") under s 8(1) of the Occupational Health & Safety Act 2000 ("the Act"). 2 The defendant is a statutory body corporate, having its principal office at 2 Prince Street, Grafton, in the State of New South Wales. It was formed on 25 February 2004, as a result of a Proclamation by the Governor pursuant to Pt 1, ch 9 and Pt 5, ch 12 of the Local Government Act 1993. Pursuant to that Proclamation, Copmanhurst Shire Council ("the Council") amalgamated with five other councils to form the Clarence Valley Council. The assets, rights and liabilities of the Council were transferred to the defendant as a result of the Proclamation. 3 The effect of s 123 of the Act is that on 25 February 2004, the criminal liability incurred by the Council, arising out of an incident on 17 November 2003, was transferred to the defendant: see Inspector Wong v Clarence Valley Council [2006] NSWIRComm 250. 4 On 17 November 2003, Mr Ronald Goodwin was employed by the Council as a Plant Operator and Labourer. Maintenance road works were taking place along the Experimental Farm Lane, Trenayr, North of Grafton ("the site"), which involved the resurfacing of the road. Mr Goodwin had been undertaking the role of sweeper, when a tip-up truck, driven by Mr Fuller reversed over Mr Goodwin. 5 As a result of the accident, Mr Goodwin was seriously injured. He suffered a fractured coccyx; broken upper right arm; broken ankle and lacerations to his legs, buttocks, hands and left side of the face and the ear. The charge 6 An amended application for order alleged that the defendant: FAILED TO ensure the health, safety and welfare at work of all its employees and in particular, Ronald Goodwin, contrary to Section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are that the defendant: 1. Failed to ensure that the systems of work were safe and without risks to health and in particular failed: (a) to ensure employees were not at risk of being struck by vehicles; (b) to take adequate steps to separate workers from plant; (c) to adequately instruct employees as to the safe pedestrian use of the roadway during the roadworks; (d) to put in place a safe system for controlling the movement of the workers and the plant for the immediate area in which the roadworks were being performed. Agreed Statement of Facts 7 An agreed statement of facts in the following terms (formal parts omitted) was tendered by the prosecutor, with the defendant's consent: … 4. On 17 November 2003 Mr Ronald Goodwin was employed by Copmanhurst Shire Council ("the Defendant's predecessor" – the "Council") as a plant operator and labourer. He had been employed with the Council since 11 May 1998. During his employment with the Council he had worked as a plant operator and labourer. 5. Mr Colin Fuller was employed on 17 November 2003 by the Council as a truck driver. He had been employed by the Council as a driver since 1990. 6. Mr Francis Anderson was employed on 17 November 2003 by Inroads Pty Ltd, a bitumen supply/spray organisation and was contracted to carry out duties for Copmanhurst Shire Council. On 17 November 2003 he was undertaking the job of a spray driver at the site. 7. On 17 November 2003 Mr Goodwin was working on a fairly straight stretch of road along the Expiremental Farm Lane Trenayr, North of Grafton ("the site"). Maintenance road works were taking place that involved resurfacing of the road. The length of the stretch of road to be resurfaced was approximately 700 metres. Road resurfacing involves fixing potholes; cracks or damaged road surfaces and then ensuring the original road surface is swept and cleaned so as the new surface will be able to bond with the original. A layer of hot bitumen is sprayed over the prepared road surface by using a Hot Bitumen Spray Machine. 8. The task of resurfacing roads usually involved two sweepers, two roller drivers, three tip trucks, three cockerel operators, two tar trucks and operators, a ganger and an overseer. 9. During the road works process Mr Goodwin had been undertaking the role of a sweeper. This involved manually brooming or sweeping loose stones into areas of the wet bitumen where it had been missed or reducing areas were there was excessive build up of stones or bitumen. 10. Whilst Mr Goodwin was carrying out the activity of brooming, a tip-up truck driven by Mr Fuller was reversing slowly along the road towards the area where Mr Goodwin was working. Mr Goodwin had his back to the oncoming tip-up truck. A hot bitumen spray machine, driven by Mr Anderson, was travelling in the opposite direction and towards Mr Goodwin, on the opposite side of the road. As Mr Anderson approached Mr Goodwin he noticed the tip up truck which was slowly reversing down the road behind Mr Goodwin. At the time Mr Anderson drove past Mr Goodwin the tip up truck was about 30 to 40 metres away from Mr Goodwin. Mr Anderson called out to Mr Goodwin as the drove past and told him to "watch his back". Mr Goodwin could not understand what Mr Anderson had called out to him. Mr Goodwin continued sweeping and was reversed over by the reversing tip-up truck. 11. Mr Fuller did not know what happened until the truck had reversed fully over Mr Goodwin when he saw Mr Goodwin come out from underneath the truck. Mr Fuller kept an eye out for pedestrian workers whilst reversing by looking in the side mirrors of the truck. He had not seen anyone in the immediate vicinity of the truck as he was reversing. He had seen workers at the end of the job. If a person was standing two metres directly behind the truck the driver would not be able to see that person using the side mirrors. 12. As a result of the incident on 17 November Ronald Goodwin was seriously injured. He suffered a fractured coccyx, broken upper right arm, broken ankle and lacerations to his legs, buttocks, hands and left side of the face and ear. 13. Prior to commencing on 17 November 2003 a site induction took place with the workers undertaking the job. The defendant had a documented Safe Work Method Statement in use. The Safe Work Method Statement did not adequately detail steps to be taken. The Safe Work Method Statement did not specify the positions workers and plant should be in at crucial, dangerous times of the works. There was no documented system for the number of personnel required to do the task or where they should be when trucks were reversing or moving about the workplace. 14. The Safe Work Method Statement in use at the time of the incident did not consider the use of spotters to ensure machine operators were aware of the location and position of pedestrian workers. There was not adequate protection in place, at the time of the incident that may have protected workers from machinery. 15. On 17 November 2003 the Council used a contractor (Workforce International) to provide traffic control at the site. Traffic control was in place for the perimeter of their roadwork to divert traffic around the work area affected. At the time of the incident there were two workers controlling traffic at the site, the workers were positioned at each end of the road that was being resealed. There was no documented traffic control system, or persons controlling traffic for the immediate work area to prevent workers from being exposed to risks from moving plant. There was a documented Worksite Traffic Control Plan excluding the general public from the site. 16. The tip truck involved in the incident was equipped with safety features such as blinking lights and beepers. The equipment had been checked in the morning prior to commencement of work and was found to be fully operational. The brakes on the tip truck were in working order. 17. At the time of the incident the road workers were wearing high visibility shirts. Signs indicating road works and speed limits were in place at the site. 18. No noise assessment had been carried out to evaluate the potential level of noise of plant and equipment and the potential dangers created by the level of noise generated by machinery when undertaking resurfacing work. Mr Goodwin stated he was unable to hear the tip truck approach due to the noise of the spray truck. 19. There was no hearing assessment of employees prior to incident. Audiological Assessment after the incident has found that Mr Goodwin suffered from a loss of hearing. 20. There was a failure to incorporate the WorkCover publication guide "moving Plant on construction sites" in their Safe Working Method Statement. In particular Chapter 3 Managing risks associated with moving plant on construction sites. 21. On 17 November 2003 Inspector Wong issued improvement notice 238886 upon Copmanhurst Shire Council requiring the Council to review their safe Work Method Statement. 22. Subsequent to the incident the defendant implemented a revised work method statement. 23. The following supporting documentation is annexed: a) eight photographs taken on 17 November 2003 by Inspector Wong. Photograph numbered 2 showed the rear of the tip-up truck which contained a cockerel spreader box. The prosecutor stated that as the safe work method was developed after the accident, a cockerel spreader operator was assigned to each truck and positioned on the platform at the rear of the truck on the cockerel spreader box. b) Factual Inspection Report of Inspector Wong c) Safe Work Method Statement d) Revised Safe Work Method Statement e) Prior convictions certificate Defendant's Evidence 8 The defendant tendered two affidavits of David Keith Andrews, the Director of Engineering Services of the defendant, who was not required for cross-examination. Mr Andrews stated that he had been employed by the Council as its Director of Engineering Services since 20 January 1982, up until the creation of the defendant on 25 February 2004. 9 Mr Andrews attended the site of the accident 20 minutes after it occurred. He carried out investigations into the accident; assisted WorkCover in its investigations; ensured all WorkCover matters and requests were properly attended to; assisted Mr Goodwin and his family and contributed towards his rehabilitation and return to work. 10 Mr Andrews deposed that the defendant's "Safe Work Method Statement No. 20/Seals and Reseals - Version 2" dated 21 October 2003, required all staff to know the location of all plant on the worksite at all times. This statement was handed to each employee, including Mr Goodwin, by the Site Supervisor at a toolbox meeting on the morning of the work commencing. The employees were asked by the Site Supervisor to read the statement and ask questions if it was unclear or not understood. Under the heading "Safety Controls", the statement relevantly provided: Know location of mobile plant at all times. Know location of travelling public at all times. Know location of staff at all times. 11 Mr Andrews stated that the Site Supervisor reinforced to Mr Goodwin the need to be more aware of moving vehicles within the worksite. He stated that due to the random nature of the manual sweeping task locations, and the necessity to carry out the tasks promptly, it was not practicable to provide physical barriers at each manual sweeping location within the worksite. All general traffic was excluded from the site. The Traffic Control Plan was fully implemented and the site signposted. Traffic controllers were operating at each end on the site. 12 Mr Andrews stated that the reversing truck was being operated in accordance with the Site Supervisor's direction. The defendant's staff, including the driver of the truck involved, were highly trained and experienced. 13 In respect of the safe systems of work for activities undertaken by the Council prior to the accident, Mr Andrew deposed the following matters were in place: a. Copmanhurst Shire Council provided safe systems of work for its engineering activities as evidenced by its Safe Work Statements, Risk Assessments, Traffic Control Plans, and Start-up checks. Exhibited to his Affidavit was a bundle of these documents. b. Safe Work Method Statements (SWMS) were continuously improved - Version 2 of SWMS # 20 Seals and Reseals was being used at the time of the accident. c. Site Specific Risk Assessment Systems were developed by Council and were in place at the time of the accident. d. Safety checks for Council and contract plant and equipment were in place on the day of the accident. e. General Public (vehicles and pedestrians) were excluded from Worksites where bitumen sealing and resealing was undertaken. f. A full suite of Traffic Control Plans were developed and in place at the time of the accident. g. Council ensured all staff were well trained in their duties. Exhibited to his affidavit were copies of the schedules of staff training. Training included RTA Single Invitation Contract Induction, RTA Traffic Controller, Manual Handling, General Construction and OHS Induction training as well as "Green Card" and Plant Operator training. h. Council ensured its own plant and equipment and hired plant and equipment was completely compliant with current safety standards and was "fit for purpose". i. Council staff, including Mr Goodwin were highly skilled and competent. 14 The Site Supervisor in charge of the method of work on the day was very experienced in bitumen resealing work and had supervised this type of work for the Council since 1992. 15 Mr Andrews stated that the Council fully embraced the primary objective of the Act by having a culture at the time of the accident which was "that if work can't be done safely, then don't do it". This culture of safety was reinforced through the Staff's Personnel Performance Bonus System, which provided a maximum four per cent annual bonus on the basis of performance during the year. One of the characteristics of personal performance measured was safety. The Council had received a number of engineering excellence awards in relation to occupational health and safety. 16 As a result of the accident, the Council immediately reviewed its procedures in relation to its bitumen sealing and resealing activities. As a result of the review, the following changes to the Safe Work Method Statement were made in relation to reversing aggregate spreading trucks: · One (1) cockerel spreader operator is to be assigned to each truck. No truck to reverse within worksite (between Traffic Controllers), without guidance from assigned spreader operator. · Trucks to always drive forward where practicable. · If deemed necessary from risk assessment, hand sweepers are to operate in pairs. 17 Mr Andrews has been a co-author of the Statewide Mutual's Best Practice Manual on Bitumen Resealing, which is now an industry standard so that best practice can be undertaken by all local government authorities. 18 Every possible assistance was given to the WorkCover Inspector by the defendant. Instructions were given, prior to the Inspector's arrival at 10.55 am on the date of the accident, that all staff were to remain on site, and that all plant and machinery and signs, were to remain in their current position to assist the investigation. The Inspector was provided with all paperwork. An improvement notice was issued on the afternoon of 17 November 2003 and the defendant undertook the review the following day at 6.30 am. 19 Mr Andrews deposed that the defendant had a well documented system of work that was fully complied with on the day of the accident. This included that Mr Goodwin was to be accompanied by a casual employee in the sweeping task. The two employees became temporarily separated by a distance of 90 metres and Mr Andrews believed that the accident may not have occurred if the two employees had remained together. 20 Following the accident, the Council undertook remedial action to its documentation and method of work. The Safe Work Method Statement - Seals and Reseals was reviewed by the Council's staff on the day following the accident and Version 3 introduced. The Council's staff were inducted into the new work methods and completed the 2003 Reseal Program using Version 3. The Risk Assessment form was remodelled using new Plant Start-up Checklists, new Traffic Control Record sheets, including Locations Form, and a new OH&S Quarry Checklist were introduced. Training has taken place and additional communication equipment for Truck Driver/Spreader Operators has been provided. All staff have completed OHS Refresher Training. The defendant has limited the type of work which was the subject of the accident on 17 November 2003 to being undertaken by day labour staff by having the work carried out by "full service" contractors, rather than "supply and spray" contractors. In addition, the defendant has employed two OH&S Professional staff - Compliance and General Duties to assist in developing OHS Policies and Procedures. It is currently completing OH&S Codes of Practice for all processes. The defendant has also adopted this course of action. 21 The defendant and its predecessor are local government authorities aimed at servicing their local communities and providing services to these communities. These services include: maintenance and construction of roads and bridges; garbage collection; water and sewerage services; airports; wharves and jetties; libraries; gallery; community health; rural fire services; State Emergency Service ("SES"); flood mitigation; coastal management; noxious weed control; stormwater management, economic development and tourism. 22 Mr Andrews stated the defendant had provided close support and financial assistance to Mr Goodwin's family immediately following the accident and for day to day travelling and accommodation expenses during Mr Goodwin's early hospitalisation. Mr Andrews visited Mr Goodwin whilst he was in Grafton Base Hospital, as did the Supervisor and other wages staff. 23 Further, the defendant has made every effort to provide Mr Goodwin with suitable and rewarding duties applicable as set by the Rehabilitation providor. Mr Goodwin returned to work and commenced suitable duties on 24 May 2004 at the rate of four hours per day on Monday, Wednesday and Friday which continued until July 2006. Since then, due to restrictions on his medical certificate, suitable duties have not been available. The defendant is actively continuing to seek suitable duties and is in regular communication with Mr Goodwin in this regard. He has been in receipt of worker's compensation payments since July 2006. 24 The defendant has encouraged Mr Goodwin to improve his education and skills to provide more employment opportunities with it. Counselling for all involved, or present at the accident site, was provided. The defendant accepted the additional income earned by Mr Goodwin whilst working for another employer in the months preceding the accident in the calculation of worker's compensation. These payments were made from the time of the accident, up until February 2005. 25 As at 17 November 2003, the Council had 36 permanent employees. The Council also engaged contractors from time to time to carry out specific works and to supplement Council's day labour staff resources. The work included maintenance and construction of roads and bridges; sewerage services; rural fire services; SES and stormwater management, regulatory control in relation to planning and building services. 26 At the present time, the defendant has 502 fulltime employees engaged in the activities described in [21] above. Submissions by the Parties 27 Mr D O'Neil of counsel, who appeared for the prosecutor, submitted that the objective factors relevant to sentencing have been clearly indicated through the authorities. This included the maximum available penalty of $550,000; the need to general and specific deterrence; an analysis of the offending conduct; a determination as to the extent of the risk and its foreseeability, and an inquiry as to whether remedial steps were therefore available. 28 In assessing the objective factors, counsel submitted that it was necessary to synthesise the subjective factors and analyse the offending conduct. Referring to the evidence, Mr O'Neil submitted that there was clearly a "blind spot" in respect of the driver of the tip-up truck (see [11] of the agreed statement of facts). 29 It was submitted that the Work Safe Method Statement was insufficient as there was a lack of "spotters" or physical barriers in place to protect the employee. Mr O'Neil acknowledged that WorkCover accepted that there was not a need for both and approved a safe work method which used "spotters". 30 Counsel further submitted that there was no documented traffic control system for the immediate work area as distinct from the plan that was in existence in relation to the public. It followed that the traffic control system did not prevent workers from being exposed to risks from moving plant. Counsel submitted that the risk was actually foreseen as the Safe Work Method Statement referred to the risk of collision between plant and workers. Counsel's submission was that steps had been taken to minimise the risk but they were inadequate. This led counsel to submit that as the extent of the risk extended to causing extremely serious injuries to Mr Goodwin, this results in this matter being a serious one. 31 Although Mr O'Neil acknowledged that the defendant was entitled to a discount for an early plea, he observed that a plea of guilty was not entered until after the defendant had sought to challenge whether it was a successor to the Council following the amalgamation. A plea of guilty was only entered to an amended application for order after it was determined that the defendant was a successor. In these circumstances, Mr O'Neil submitted this is not a matter where a full 25 per cent discount would be given. Counsel acknowledged it would not fall significantly short of that quantum of discount, but not necessarily towards the bottom of the range. 32 Mr O'Neil acknowledged that the defendant had co-operated with WorkCover and had clearly taken steps to improve workplace safety after the incident. Counsel acknowledged that the defendant has an unblemished record and has clearly developed appropriate steps in relation to injured workers. 33 The prosecutor sought an order for costs and a moiety of the penalty. 34 Mr A Moses of counsel, who appeared for the defendant, helpfully provided a written outline of submissions acknowledging that in accordance with the Crimes (Sentencing Procedure) Act 1999, the exercise of the Court's discretion is to be approached from a consideration of the nature and seriousness of the offence, together with aggravating and mitigating factors. 35 Counsel then identified a number of general principles for sentencing, referring in particular to the judgment of Kirby P in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699. 36 Mr Moses submitted that the penalty for breaches of the Act must reflect the objective seriousness of the offence. Relevant issues to be taken into account in determining the objective seriousness of the offence included whether the risk to health and safety was foreseeable and might have been remedied by simple measures: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at 646; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Another (2000) 95 IR 383 at 428; the extent to which the defendant had control over the primary causal factors of the risk; the extent of the defendant's contribution to the relevant detriment to safety and the existence of a settled system of work which would have prevented the accident if it would have been adhered to by relevant others. 37 Counsel acknowledged that general deterrence was relevant together with a consideration of the subjective factors. 38 Mr Moses submitted that whilst the existence of the risk was reasonably foreseeable, it was not obvious that Mr Goodwin would have been injured in the manner he was. Counsel further submitted that there was a system of work in place which was not obviously unsafe and there was a pre-existing commitment of the defendant to occupational health and safety. It followed, so counsel submitted, that there is no requirement for specific deterrence in this case. Counsel submitted that there were no circumstances in this case that aggravate the offence. 39 Turning to the subjective factors, Mr Moses submitted that the defendant had entered a plea of guilty to the charge in the amended application for order at the first available opportunity. Apart from the plea evidencing remorse and contrition and avoiding a costly hearing, it may also have avoided adducing evidence from Mr Goodwin. Counsel submitted that the utilitarian savings from the entry of an early plea warranted a discount of 25 per cent for that factor. 40 Counsel submitted the defendant's unreserved and genuine contrition for the events that occurred on 17 November 2003, and in particular, the injuries sustained by Mr Goodwin which remained a matter of profound regret. Counsel emphasised the support and assistance given to Mr Goodwin as detailed in the evidence of Mr Andrews. 41 Finally, Mr Moses submitted that the Court would have regard to the size of the defendant's undertaking, its numerous worksites and the inherent risks involved in the work performed by the defendant's employees. Counsel also emphasised the defendant's commitment to the objects of the Act as detailed in the evidence of Mr Andrews and the procedures put in place after the accident. Consideration 42 As I observed in Inspector Patton v Shoalhaven City Council [2005] NSWIRComm 421, the sentencing principles to be applied in a matter such as this, were recently restated by the Full Bench in U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266 where the Full bench said at [11]: [11] The sentencing principles to be applied in the assessment of appropriate penalties under the Act have been considered on many occasions by this Court, including Full Bench level, and are well known. We refer by way of example to Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 at 474-475 and Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (1999) 91 IR 66 at 77. The starting point is the objective seriousness of the offence and the need to accommodate both general and specific deterrence. The maximum penalty that may be imposed is to be reserved for the most serious offence, that is, the worst possible case. Only after an appropriate penalty has then been formulated are subjective matters to be taken into account, which include factors such as cooperation with the investigation and inquiries of the WorkCover Authority, expressions of remorse and contrition, steps taken to remedy the matters giving rise to the breach and the general approach to occupational health and safety matters and attention to safe working practices by a defendant. This list is not intended to be exhaustive but is indicative of the matters which should be taken into account. Furthermore, a defendant will be entitled to a discount of up to 25 per cent for entering a plea of guilty at the earliest possible opportunity. These subjective factors are then aggregated so that a discount is applied to the penalty assessed by reference to the objective factors, resulting in the penalty to be properly imposed. See also WorkCover Authority of New South Wales (Inspector Ian Hannah) v Keough's Plant Hire Pty Ltd [2005] NSWIRComm 118 at [14]. 43 In my view, the risk to the health and safety of employees was the risk of a collision between employees and mobile plant (trucks, rollers, bitumen sprayer) when carrying out the work of sealing or resealing a road. Although the dangers associated with such work were recognised in the Safe Work Method Statement and the Court will give credit to a defendant where it has a system in place but it is defective, in my view, in this matter there was a significant managerial deficiency. A truck was permitted to reverse with a two metre blind spot, with an employee working within the path of the reversing truck. 44 The risk to health and safety was actually foreseen by the defendant. However, the risk, once mobile plant comes into contact with an individual, gives rise to a risk of serious injury. In my view, Mr Goodwin could have suffered fatal injuries. He is fortunate to be alive. 45 The defendant's system of work relied on the driver of the tip-up truck to keep an eye out for pedestrian workers whilst reversing by looking in the side mirrors of the truck. If a person was standing two metres directly behind the truck, the driver could not see that person by using the side mirrors. In other words, there was a "blind spot" in respect of the truck driver's vision. The accident occurred in circumstances where the truck was reversing and Mr Goodwin had his back to the reversing truck. 46 The failure of the Safe Work Method Statement was that it did not specify the positions workers and plant should be in at crucial and dangerous times when the work was being carried out. There was no documented system in respect of the number of personnel required to do the task or where they should be when trucks were reversing or moving about the workplace. The Safe Work Method Statement did not consider the use of "spotters" to ensure machine operators were aware of the location and position of pedestrian workers. It follows that there was no adequate system in place to ensure that pedestrian workers and machinery did not come into contact. 47 Immediately after the accident, the Safe Work Method Statement was upgraded. As a result of the review, changes to the Safe Work Method Statement were made in relation to reversing trucks spreading bitumen. An employee described as a cockerel spreader operator was assigned to each truck. No truck is to reverse within a worksite (between traffic controllers) without guidance from the assigned spreader operator ("the spotter"). This employee is positioned on a platform at the rear of the truck. Truck drivers were directed to always drive forward where practicable. If it is deemed necessary from a risk assessment, hand sweepers are to operate in pairs. 48 Furthermore, there was no documented traffic control system, or persons controlling traffic in respect of the immediate work area on the day of the incident. This was despite an onsite "toolbox" meeting, held on the morning of the accident, which included the carrying out of a risk assessment for the work. Although staff were given a copy of the Safe Work Method Statement No. 20/Seals and Reseals - Version 2, as I have already observed, this statement was deficient in that it did not make reference to the cockerel spreader operator ("spotter"). Realising the deficiency an upgraded Safe Work Method Statement was introduced on 18 November 2003, the day after the accident. I accept that the defendant immediately recognised the deficiencies in the work system and moved swiftly to rectify them. 49 An important consideration in matters such as the present one was stated by the Full Bench in Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] (referring to Capral Aluminium at [94]) to be: … The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety. … 50 The risks to safety are obvious and foreseeable in circumstances where employees are working with and amongst moving vehicles, particularly reversing vehicles. I have already referred to the deficiencies in the system of work. In addition, there was no noise assessment carried out to evaluate the potential level of noise of plant and equipment and the potential dangers created by a level of noise generated by machinery when undertaking the resurfacing of a road. Mr Goodwin stated that he was unable to hear the tip-up truck approach due to the noise of the spray truck. It is trite to observe that trucks used for the resurfacing of roads create significant noise. There is no issue that the truck was not perfectly safe. It had been inspected during the "start up" checks carried out by the Council's staff on the day of the accident and passed safe for work. Each worker also wore a high visibility shirt. 51 I agree with the submissions of Mr O'Neil that as the risk was actually foreseen and that the risk resulted in serious injury, this is a serious matter. 52 In assessing penalty, it is necessary that the Court have regard to the need for general and specific deterrence: Capral Aluminium Limited at [73] - [80]. 53 The Full Bench recently referred to the principles relating to general deterrence in WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 at [80]: [80] Firstly, the Chief Industrial Magistrate underrated the importance of general deterrence in determining the level of penalty. The Court in WorkCover Authority v Schrader held at [69] - [70]: "The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at [72] - [74]), in cases such as this, it should be reiterated that "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R v Radich [1954] NZLR 86 at 87 (adopted by this Court in Capral Aluminium at [72]). Further, I would note that it has been described as "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]). See also the Full Bench decision in WorkCover Authority of New South Wales (Inspector Ian Lancaster) v Burnshaw Constructions Pty Ltd (2002) 121 IR 119. 54 The sealing and resealing of roads is a common feature of local government work. In my view, general deterrence should therefore be a primary consideration in the penalty that is imposed by the Court. It is appropriate to draw attention to the need for local government employers conducting the sealing and resealing of roads to be proactive and constantly vigilant of the need to ensure that workers are not exposed to risks to their health and safety. I have, therefore, included an element in the penalty for general deterrence. 55 In relation to specific deterrence, as the Full Bench observed in Capral at [77], in view of the scope of the obligations on employers under the Act, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. The Court noted: …This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety… 56 In respect of the question of specific deterrence, the defendant is a relatively large employer, employing 502 fulltime employees. I also take into account the defendant's good industrial record, its general approach to occupational health and safety and the steps taken since the accident. Mr Moses submitted that in light of the defendant's pre-existing commitment to occupational health and safety, there was no requirement for specific deterrence in this case. I disagree. In my view, the defendant operates in an industry which presents risks to workplace safety. I propose to include an element in the penalty for specific deterrence. 57 There are a number of relevant subjective considerations. The defendant submits that it entered a plea of guilty to the charge at the first available opportunity after judgment was issued, determining the issue whether the defendant was, pursuant to s 123 of the Act, a successor to the Council. 58 Mr O'Neil contended that it remained open to the defendant at any time after the filing of the application for order to either admit to the charge, or take issue with the particulars, or to approach the prosecutor with the proposal. This only emerged after the judgment in respect of the successor issue. Mr O'Neil submitted that Court time was involved in the hearing of the successor issue and that the full 25 per cent discount should not be given. Section 123 of the Act had not been the subject of any judicial consideration by this Court prior to it being raised by the defendant. The defendant should not be penalised for seeking the dismissal of the matter in circumstances where it contended it was not the defendant. In my view, the defendant entered a plea of guilty at the earliest opportunity after the determination of the successor issue. It is appropriate to apply the judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419. I propose to allow a discount of 25 per cent for the utilitarian value of the early plea. 59 I find that the defendant has a good industrial record and that it co-operated fully and expeditiously with WorkCover. 60 Mr Moses referred to s 21A(3)(h) of the Crimes (Sentencing Procedure) Act which provides: (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, … 61 The offender is a local council. However, as I observed in Inspector Lancaster v Wollongong City Council [2005] NSWIRComm 79, I consider that rehabilitation is a relevant issue. Mr Andrews' evidence referred to the steps taken by the defendant following the offence. 62 It is appropriate that I take into account the procedures put in place after the accident on 17 November 2003. These were: a. the defendant complied immediately with all directions from WorkCover; b. the Safe Work Method Statement – Seals and Reseals was reviewed (Version 3) by the Defendant's staff on the day following the accident as part of the Defendant's continuous improvement program; c. the defendant's staff were inducted into the new work methods and completed the 2003 Reseal Program using Safe Work Method Statement #20 – Version 3; d. the defendant also remodelled its Risk Assessment Form (numerous versions) to meet current legislation, and developed new Plant Start-up Checklists, new Traffic Control Record sheets, including Locations Form, and new OH&S Quarry Checklist: e. training has taken place and additional communication equipment for Truck Driver/Spreader Operators has been provided; f. all staff have completed OHS Refresher Training (General) to reinforce the need for safety compliance; g. the defendant has limited the type of work which was the subject of the accident on 17 November 2003 to being undertaken by day labour staff by having the work carried out by "full service" contractors, rather than "supply and spray" contractors. Under this arrangement aggregate spreading is undertaken by the contractors in accordance with the Best Practice Manual; h. the defendant has employed two (2) OH&S Professional staff – Compliance and General Duties to assist in developing OHS Policies and Procedures; and i. the defendant is currently completing OH&S Codes of Practice for all processes. Codes include Safe Work Method Statements and Safe Work Procedures. All tasks and plant are included in this process. 63 I regard these procedures as appropriate in seeking to improve the occupational health and safety systems of the defendant and to avoid the prospect of risks associated with the sealing and resealing of roads. I accept that the defendant has demonstrated a strong commitment to workplace safety and that is a factor to be taken into account in its favour. 64 Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides: (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, ... 65 The defendant has accepted responsibility for the accident and the injuries suffered by Mr Goodwin and expressed unreserved and genuine contrition for the events that occurred on 17 November 2003. This is a factor to be taken into account in its favour. 66 The defendant provided assistance to Mr Goodwin after the accident and has continued to provide assistance since Mr Goodwin returned to work on 24 May 2004. 67 I also consider that I should have regard to the financial circumstances of the defendant, although that consideration does not, of itself, mean that a substantial penalty should not be imposed. It is appropriate to have regard to the nature of the defendant in its operations: WorkCover Authority (NSW) v Parkes Council (unreported, 10 April 1996); WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 at 407 and Inspector Lancaster v Wollongong City Council at [86]. 68 As I have already observed, the defendant has no prior convictions and has taken steps to avoid a recurrence of the accident that occurred on 17 November 2003. 69 In my view, the offence falls towards the mid range of objective seriousness. In reaching this finding, I am mindful that the damage or injury does not, of itself, dictate the seriousness of the offence or penalty: Capral at [94] - [95] and Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd at [17]. 70 Taking into account all of the relevant circumstances and noting that the offence results in a maximum penalty of $550,000, I consider an appropriate penalty is $130,000. ORDERS 71 The Court accordingly makes the following orders: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence alleged under s 8(1) of the Occupational Health & Safety Act 2000. 3. The defendant is fined an amount of $130,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed, in accordance with the Court's Rules. ------------------------------ 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.