Industrial Court of New South Wales CITATION: Inspector Jones v Rockdale Beef Pty Limited [2007] NSWIRComm 275 PROSECUTOR Workcover Authority of New South Wales PARTIES: DEFENDANT Rockdale Beef Pty Limited FILE NUMBER(S): 6660 of 2005 CORAM: Marks J CATCHWORDS: Occupational health and safety prosecution - guilty plea - penalty - obvious danger associated with state of defendant's premises - defendant took no active steps to comply with obligations - offence assessed as being a serious one - general and specific deterrent effect of penalty - defendant has taken no steps to comply with obligations under the Act since the incident - utilitarian value of guilty plea - defendant cooperated fully with WorkCover Authority - defendant showed lack of contrition - no prior convictions LEGISLATION CITED: Occupational Health and Safety Act 2000 s10 HEARING DATES: 8, 22, 23, 24 and 25 October 2007 DATE OF JUDGMENT: 14 November 2007 PROSECUTOR Mr J Agius SC Mr P Skinner of counsel Solicitor: Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales Ms P Blackmore DEFENDANT Ms M Painter Solicitor: Terrett Lawyers Mr P Terrett JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Wednesday 14 November 2007 Matter No IRC 6660 of 2005 Inspector Stephen Jones v Rockdale Beef Pty Limited Prosecution under s 10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 275 1 The prosecutor, Inspector Stephen Jones of the WorkCover Authority of New South Wales, has charged the defendant Rockdale Beef Pty Limited with a breach of s 10(1) of the Occupational Health and Safety Act 2000 ("the Act") and the defendant has entered a plea of guilty. This judgment deals with the question of penalty. 2 An agreed statement of facts was tendered into evidence that, conveniently, sets out the charge and particulars. The document is as follows: "1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (Act) and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter. THE CHARGE 2. On 20 December 2003, in respect of premises at Regulator Road Yanco in the State of New South Wales (Premises) the defendant, contrary to section 10(1) of the Act: 1. controlled the premises which were used by people as a place of work, not used only by employees of the defendant, not occupied only as a private dwelling, and controlled in the course of a business; and 2. failed to ensure that the premises were safe and without risks to health; PARTICULARS The defendant failed to ensure that the premises in particular a livestock unloading ramp built thereon used by John Jarman and Peter Ferguson as a place of work was safe and without risks to health. As a result of the defendant's failures John Jarman and Peter Ferguson were placed at risk as to their health and safety, and Mr Jarman received serious injuries. THE DEFENDANT 3. On 20 December 2003 the defendant as manager for and on behalf of Rockdale Beef Partnership carried on some aspects of an abattoir business at 1 Regulator Road, Yanco in the state of New South Wales. On 1 November 1989 Renod Holdings Pty Limited and M C Meats (Rockdale) Pty Limited entered into a partnership agreement to carry on the "Rockdale Beef Partnership." On the same day the defendant entered into a management agreement with Renod Holdings Pty Limited and M C Meats (Rockdale) Pty Limited. 4. On 20 December 2003 the defendant had a degree of control, not to the exclusion of others, over the premises which was used by people as a place of work, not used only by employees of the defendant, not occupied only as a private dwelling, and controlled in the course of a business. BACKGROUND 5. At all material times Mr Jarman was employed as a livestock driver by Whites Stock Transport Pty Ltd ACN 060 763 000 (Whites). 6. Mr Jarman was employed by Whites for 18 months prior to 20 December 2003. On 20 December 2003, he was carrying out his normal duties for Whites. His general duties as a livestock driver included loading, unloading and transportation of livestock. THE INCIDENT 7. On 20 December 2003 Mr Jarman attended the premises to deliver cattle for killing and processing. The defendant did not own the premises. The premises were owned by Peter Terrett and Paul Troja on trust for Renold Holdings Pty Limited and M C Meats (Rockdale) Pty Limited, the partners in the Rockdale Beef Partnership. 8. Mr Jarman was driving a prime mover trailing a B-double double-decker live stock carrier with blue steel framing and silver metal sidings manufactured by Dickinson Stock Trailers (trailer). The trailer was registered No. NT 64DJ. The prime mover and trailer had been supplied to Mr Jarman by Whites for his use at work. 9. After backing the trailer up to the loading ramp in the livestock loading area at the premises, Mr Jarman left the cabin of the prime mover and climbed up onto the side of the trailer so that he could view the cattle, which were inside, and move them along the trailer and into the loading ramp. 10. The ramp, which was being loaded at the time of Mr Jarman's accident, was an open 'double loading' ramp which is designed to cater for cattle being loaded from the top deck of the trailer. Affixed to the side of this ramp is a platform that leads from ground level to the top of the ramp measuring 4290mm in height. 11. At approximately 5:15pm on 20 December 2003 Mr Jarman was in the process of unloading cattle from the trailer into the loading ramp. Mr Jarman recalls backing the trailer onto the loading ramp but cannot recall anything else after that point in time. Peter Ferguson (Mr Ferguson) a self-employed stockman was assisting at the ramp at the time and was counting the cattle as they disembarked from the truck. Mr Ferguson was the only witness to the incident and he recalls seeing Mr Jarman climbing up the ladder on the side of the trailer when he tumbled off the ladder backwards and fell headfirst. Mr Jarman was either on the third or fourth rung of the ladder and had a couple of grabs of the rail with his hands before he fell. Mr Ferguson ran to assist Mr Jarman, who was conscious and attempting to get up. Mr Ferguson placed his hand on Mr Jarman and told him to lie there quietly. Another truck then arrived and the driver of that truck stayed with Mr Jarman while Mr Ferguson left to get medical assistance. 12. On other occasions when Mr Jarman had been unloading livestock from a double trailer he was required to observe the livestock inside the trailer. He did this by climbing up on the permanent ladder fixed to the side of the trailer then leaving the ladder and walking along a thin steel railing approximately ½ to 2 inches wide that forms part of the trailer's steel frame work and is on the side of the trailer. 13. Mr Jarman fell between 2150mm and 2450mm to the ground below headfirst onto the side of the concrete ledge, which was about 3 feet above the ground. In the fall he sustained severe spinal injuries resulting in permanent T4 paraplegia. ALLEGED FAILURES 14. Mr Jarman had delivered to the premises previously, he had never undergone a site induction or orientation and had not been provided with any instruction in relation to the unloading of cattle by any representative of either the defendant or Whites. 15. Mr Jarman was not provided with any type of fall prevention or fall arrest device by Whites or the defendant. 16. It was known to both the defendants and Whites that this activity was being carried out by drivers. 17. The ladder, which was permanently affixed to the side of the trailer, did not comply with Australian Standard AS 1657-1992, which requires a clearance or foothold of not less than 200mm for ladders in excess of 750mm in height. 18. After Mr Jarman left the site in an ambulance, Mr Ferguson remained behind to unload the rest of the cattle that remained on the truck. In doing so, he climbed onto the side of the trailer as Mr Jarman had done and continue to remove the cattle onto the ramp. Mr Ferguson did so without use of a fall prevention or fall arrest device. 19. The system of work being followed at the time of the incident was the normal procedure carried out by the transport drivers for Whites at the premises. It was standard practice for drivers to climb to the top of the trailers so that they could watch and assist the cattle exit the truck. An alternate system was available at other premises, this is referred to below. 20. There is no evidence of a risk assessment being conducted by the defendant or a written work procedure being produced by the defendant for drivers performing the work that Mr Jarman was undertaking on 20 December 2003. 21. The defendant did not provide any information or instruction to the drivers who came onto its property for the purposes of delivering livestock. 22. Cargill Beef is a red meat abattoir located in Dampier Road, Wagga Wagga. Before the incident Cargill had installed an overhead gantry at the livestock-loading ramp. 23. Mr White was aware of two other abattoirs, Cargill Foods at Wagga and Tamworth that Whites delivered to that have harnesses and retractable reels for the drivers to use. PRIOR CONVICTIONS 24. The defendant has no WorkCover NSW prior convictions in respect of any matter prosecuted by WorkCover NSW under the Occupational Health and Safety legislation." 3 In addition to the agreed statement of facts, oral, documentary and pictorial evidence was given in the proceedings. 4 It is clear from a statement of Adrian Whitty, the livestock manager at the Rockdale Abattoir and Feedlot, that for about 18 years to his knowledge a large number of cattle have been unloaded from cattle transport vehicles on a "very large number of occasions." Mr Whitty said that more than 100,000 head of cattle are delivered to the Rockdale property each year. He believed that, "About 2,500 cattle transports visit the Rockdale property in an average year to unload cattle…." 5 It is also clear from the evidence that the transport drivers who unload cattle from double-deck cattle transport trailers are required to have access to the top deck for the purpose of facilitating the unloading of the cattle from that deck down a ramp. A CD, which became evidence in the proceedings, recreated the movements of Mr Jarman at the time of the incident. After letting the cattle out of the lower part of the trailer, the driver then ascended the upper part of the ramp and opened the door to the trailer. He then climbed over onto the side of the vehicle and shuffled along a beam on the side to get to the front part of the trailer to assist moving the cattle out. This is consistent with a statement given by Mr Ferguson to the prosecutor. 6 However, the procedure normally undertaken by Mr Jarman, as described by him in a statement given to an insurance investigator, which became evidence in the proceedings, said that he would, "normally reverse the vehicle up against a ramp, where the livestock was either loaded of (sic) unloaded from the stock crate which were divided into two separate levels. To unload cattle from the trailer required me to climb a ladder that was located on the rear driver's side of the trailer. I would then be required to unlock a pin that secured a rear sliding door to the frame of the trailer. I would then be required to push the sliding gate across towards the passenger side of the trailer. The same process is carried out on both the upper and lower crates of the trailer….Once the rear doors of the trailer is opened, cattle are then released from the stock crate and walk down the ramp to a designated area." 7 It is uncontroversial, therefore, that this defendant knew that at the unloading ramp and facility provided by it for the unloading of livestock, that many of the deliveries were undertaken in double-deck trailers of the kind used by Mr Jarman on the day of the incident. The defendant knew, therefore, that drivers invariably were required to reach the upper deck of the trailer in connection with the release of cattle and did so by utilising ladders fixed to the sides of the trailers but without using any restraint device or any other equipment that would preclude them from falling if they slipped. In the context of the particular facility operated by this defendant, there was a concrete apron and an adjoining wall, both of which may be said to have potentially exacerbated the risk of injury in the event of a fall off the side of the trailer. This is encapsulated in [16] of the agreed statement of facts. 8 Problems associated with falls from heights in the heavy vehicle sector have occupied the attention of participants in the industry and the various governmental statutory organisations charged with the responsibility of improving workplace health and safety for some time. There was tendered into evidence a report dated July 2006, albeit some considerable time after this incident, described as a "National Falls From Heights in the Heavy Vehicle Sector". More significantly, however, there was also received into evidence a publication entitled "Prevention of Falls in the Transport of Livestock" produced by Worksafe Victoria. The copy, which became evidence, appears to be dated 2006, again a date well after the incident that gave rise to these proceedings. The publication is divided into two principal areas, namely the trailers and the facilities for loading and unloading livestock. It is in this latter area where, obviously, there is greater relevance for the purpose of these proceedings. 9 The publication describes as "high risk" any such facilities where there is no equipment provided which would prevent or control the risk of falls from height where the risk of fall is created by the lack of appropriate equipment on the trailer. The document describes the use of walkways with handrails, stationary platforms, loading docks and tiered gantries with safe access and egress as means of minimising the risk of injury. Furthermore, there is described the engagement of transport operators who have eliminated the need to work at height or who use travel restraint equipment eg drivers who work entirely from inside the vehicle or where the driver is required to use fall prevention equipment. 10 The agreed statement of facts refers in particular to the installation of an overhead gantry system to which harnesses and retractable reels may be attached at abattoirs operated by the Cargill organisation at Wagga Wagga and Tamworth. There was evidence given about these facilities. The defendant endeavoured to introduce evidence that systems of this kind were resisted by drivers and potentially created their own problems. However, overall upon cross-examination, the effect of that evidence was that it was safer to use the type of system that was in operation at Cargill than not have any system at all, as was the case with this defendant. 11 In this regard, the defendant relied on a report of Wayne Ackers, an expert in matters concerning occupational health and safety. Mr Ackers gave oral evidence in support of, and was cross-examined on, his report. Mr Ackers acknowledged that the unloading of double-deck trailers used in the transport of livestock at establishments of the kind involving this defendant created potentially dangerous circumstances for the drivers involved in the unloading operation. It was his thesis that principally the focus of the resolution of these problems should be the modification of existing trailers and the design of new trailers so as to provide safer facilities for accessing the top of the trailers by drivers in a safe manner. However, Mr Ackers agreed in cross-examination that it was possible to introduce a fall restraint system with a controlled protective length together with mechanisms for ensuring its use by drivers which would create a much safer environment for the unloading of livestock transport vehicles than that which was provided by having no such facility at all. 12 The starting point for the assessment of penalty in these proceedings is a consideration of the objective seriousness of the offence. By its plea of guilty, the defendant conceded that it had some, albeit not exclusive, control of the premises. Furthermore, those premises were used by people as a place of work. The Act, and in particular s 10(1) of the Act, imposes an obligation to ensure that the premises are safe and without risks to health. This involves, at the least, the defendant in taking some steps to minimise what was said in the evidence (including the evidence of those called on behalf of the defendant) to be a risk attaching to drivers using the exterior of the trailer for the purpose of climbing towards the top deck. In order to address this problem, it was incumbent on this defendant to take some step so as to render the unloading operation safe for drivers in these circumstances. Even a simple warning sign asking drivers to take care would have represented a minimal step of this kind that might be taken. Certainly, modification of the premises, installation of a fall restraint system or an attempt to ensure that the transport operators installed some appropriate facility including a fall restraint system on the trailer itself would have represented some measure of response to what was the obvious danger associated with the state of the defendant's premises. [20] and [21] of the agreed statement of facts demonstrate that the defendant took no active steps to comply with its obligations. 13 In all the circumstances, I would assess the offence as being a serious one. 14 Furthermore, in assessing the appropriate penalty, it is necessary to take into account both the general and specific deterrent effect of the imposition of a penalty. It is clear from the evidence in these proceedings that this is a problem that is widespread through the industry and for this reason the general deterrent effect of the penalty will be of assistance in promoting awareness of the problem and in endeavouring to deter others from failing to comply with their statutory obligations. The evidence is that this defendant has taken no steps of any kind to do anything in relation to these facilities and their use that might assist in compliance with its obligations under the Act since the incident. To this extent, it is important in assessing penalty to bear in mind the specific deterrent effect on this particular defendant. 15 There are, however, a number of subjective features that I will take into account in favour of the defendant. Until shortly before the date fixed for hearing, there were a number of associated proceedings involving other defendants with whom this defendant had a contractual relationship. Negotiations between the parties resulted in those other proceedings being withdrawn on the basis that this defendant would plead guilty to the charge. In these circumstances, I am prepared to afford to this defendant an allowance almost to the fullest relevant extent for the utilitarian value of the plea of guilty. 16 The prosecutor conceded that the defendant had co-operated fully with the WorkCover Authority of New South Wales in connection with its enquiries and investigations concerning the incident and this is a matter that I shall also take into account. 17 A subjective factor that is also applied is any expression of contrition and remorse for what occurred. Although there is an oblique reference in a statement that might conceivably be indicative of some enquiry being made as to Mr Jarman's condition and circumstances after the incident, such a reference is, in my opinion, not indicative of any statement of concern for his welfare. Furthermore, the failure of the defendant to take any steps of a positive kind after the incident to improve the safe use of the facility reflects a lack of contrition on its part. The defendant is not entitled to any accommodation on this count. 18 The defendant has no prior convictions and must be assessed on the basis that it otherwise has a good safety record. 19 The maximum penalty applicable is $550,000. Having regard to all of the matters to which I have referred including the objective seriousness of the offence, which I have found, the need to consider both aspects of deterrence and those subjective features that the defendant is entitled to, I propose to fix a penalty in the sum of $95,000. 20 The prosecutor sought a moiety of the penalty and a costs order, neither of which was opposed by the defendant. Orders 21 I make the following orders: 1. The defendant is found guilty and convicted of the offence with which it is charged. 2. The defendant is fined the sum of $95,000 with a moiety to the prosecutor. 3. The defendant is to pay the prosecutor's costs as assessed by the Court in default of agreement. 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