Industrial Court of New South Wales CITATION: Inspector Maurice Vierow v Allen Taylor & Co. Ltd [2008] NSWIRComm 73 PROSECUTOR: Inspector Maurice Vierow PARTIES: DEFENDANT: Allen Taylor & Co Ltd FILE NUMBER(S): IRC 1114 of 2007 CORAM: Haylen J Occupational Health and Safety Act 2000 - s 8(2) - delivery of large timber stacks by truck to timber flooring company - forklift operated by labour hire company employee at timber flooring company - truck driver injured in course of unloading stacks - no instruction or enforcement of instruction to make truck driver stand clear of load while forklift in operation - truck driver seriously injured - plea of guilty - contest as to seriousness of breach and need for general and specific deterrence - defendant had extensive safety systems but no enforcement of system for unloading stacks of timber from delivery trucks - prior record considered - serious breach established - culpability of others considered - considerable subjective factors - penalty imposed CATCHWORDS: Capral Aluminimum v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [74] CASES CITED: Inspector Twynam-Perkins v Maine Lighting (1995) 100 IR 248 at 257 Veen v The Queen (No2) (1987-198) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 269 at [32] HEARING DATES: 1 April 2008 DATE OF JUDGMENT: 9 April 2008 PROSECUTOR: Mr D O'Neil of counsel SOLICITORS: Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr L King SC SOLICITORS: Hunt and Hunt JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 9 April 2008 Matter No IRC 1114 of 2007 Inspector Maurice Vierow v Allen Taylor & Co Ltd. Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 73 1 On 15 July 2005, Mr John Warwick was working as a heavy vehicle driver as he had done for the previous 35 years. On this day, he was delivering sawn hardwood timber to a Boral Ltd outlet, Allen Taylor & Co. Ltd ("Allen Taylor") at the company's Murwillumbah site. Mr Warwick had driven the load to this site the night before, arriving at approximately 11.00 pm and sleeping in his truck until he entered the premises at approximately 7.00 am the following morning. 2 Allen Taylor was involved in the production and distribution of hardwood, softwood and plywood timbers and was a fully owned subsidiary of Boral Ltd ("Boral Ltd"). Mr Warwick had not previously delivered timber to this site and he followed another truck into the yard, pulling up in an area that appeared to him to be appropriate for the purposes of unloading the timber. Mr Warwick spoke to a forklift driver about the task of unloading his truck and while in the course of removing restraining chains and straps on the load, a forklift on the other side of the truck disturbed part of the load which fell and seriously injured Mr Warwick. 3 In July 2007, Inspector Vierow commenced proceedings in this Court claiming that Allen Taylor had breached the provisions of s 8(2) of the Occupational Health and Safety Act 2000 and in the alternative, alleging a breach of s 10(1) of the Act. On the fifth occasion that the matter was before the Court, an Amended Application for Order was filed restricting the allegation to a breach of s 8(2) of the Occupational Health and Safety Act and providing two particulars, namely, a failure to provide and maintain a safe system of work for the task of unloading timber from trucks and a failure to induct and/or train and instruct workers in a safe system of work for the task of unloading timber from trucks at the premises. The company immediately entered a plea of guilty to that Amended Application for Order. In this judgment, the Court deals with the evidence and submissions put forward by the parties in relation to the setting of an appropriate penalty. 4 The evidence for the prosecutor comprised of the following materials: (a) an Agreed Statement of Facts. (That document is annexed to this judgment); (b) nine coloured photographs of the work site, including the truck and the forklift involved in this accident; (c) a factual inspection report prepared by Inspector Vierow; (d) an accident investigation report produced by the defendant; (e) a Boral Transport Ltd notification to all drivers, hauliers and sub-contractors informing them of the accident at the Murwillumbah plant; (f) a document entitled "Murwillumbah Engineered Flooring - Truck Loading/Unloading Procedures and Questionnaire" issued on 19 July 2005; (g) a document entitled "Boral Timber Significant Incident" giving notice about this particular accident; (h) a Boral Timber Division - Engineering Flooring Induction Handbook for truck drivers carrying the date July 2005; and (i) a prior convictions record noting that since July 1960, the defendant had nine prior convictions with five matters being jointly dealt with in 1998 for a breach of s 15(1) of the Act in which a global fine of $20,000 was imposed. The other significant penalty was imposed in September 1993 for a breach of s 15 of the Occupational Health and Safety Act 1983 where the Industrial Court imposed a penalty of $75,000. The prosecutor also handed up for consideration at the appropriate time, a Victim's Impact Statement. 5 For the defendant, the following affidavits with numerous documens exhibited were read: an affidavit sworn by Stephen Gordon Dadd, General Manager, Hardwood employed by the defendant; an affidavit sworn by John Robert McAuliffe, General Manager, Human Resources employed by the defendant; and an affidavit sworn by Ross William Dill, General Manager, Occupational Health and Safety employed by Boral Ltd. An extract from Mr Warwick's statement given to Inspector Vierow in November 2005 was also tendered. 6 In his affidavit, Mr Dadd stated that the Murwillumbah plant was constructed in 2004 in place of a structural plant that had previously occupied the site. The opening of the plant required a workforce of 60 people who were required to be recruited, employed and trained. 7 In relation to this incident, P & H Keast had contracted with Boral Transport Ltd on behalf of the defendant to transport timber from the Kemsey Green Mill to the Murwillumbah plant. A labour hire company had contracted with the defendant to supply skilled workers and drivers at that plant. 8 As part of the construction of the plant, a sign was erected at the entrance to the site directing all visitors to the site office. Trucks arriving at the site were to report to the office and were directed as to where to park and unload. The forklift driver for that area would meet the truck driver and brief the truck driver on the unloading procedure. On the day of this accident, Mr Warwick had driven his truck into the premises but had not reported to the site office. As it turned out, Mr Warwick had parked in the designated loading area described by Mr Dadd as a large flat area appropriately surfaced and free of obstruction and in a quiet part of the site. 9 Mr Dadd then gave some evidence as to the usual unloading procedure. Because of the way a load was secured on the trucks it was necessary for a truck driver to attend to the load and to remove "gluts" and ropes. That procedure also occurred after the forklift removed any unsecured packs of timber from the load (known as slings). Every time a truck driver removed sufficient ropes and "gluts", he was to stand back and allow the forklift driver to remove any unsecured slings. This process was repeated until the entire load was removed from the truck. 10 Mr Andrew Leboydre was supplied to the defendant by a labour hire company as a forklift driver. He assisted Mr Warwick to "untarp" the truck. Mr Dadd stated that the forklift was a large, late model piece of equipment that had been leased and was fit for the purpose. 11 Mr Dadd referred to Mr Warwick's statement to the WorkCover Authority where he said that he was still working on the chains and the pullers at the front of the trailer and packing them away in the toolbox on the left hand side of the trailer and did not hear the forklift return after the top slings had been taken from the rear of the truck. He said he had no indication of the position of the forklift. He later stated that the forklift driver had stopped his machine when the pack fell and had called out whether Mr Warwick was alright and Mr Warwick had heard the forklift driver turn off the forklift. Mr Dadd noted that the specifications for a forklift of a similar size to the one involved in this incident indicated a noise level of 75 DBA when operating. It was further noted that if Mr Warwick was able to hear the forklift driver call out, he would have been able to hear the forklift approach because it was significantly louder. In Mr Dadd's view the incident occurred just after 7.00 am and in a place in the plant that had insignificant background noise. Mr Dadd stated that the large forklifts were clearly audible from a significant distance and he had often heard them in operation from the front office carpark which was more than 100 metres away from the operating site. The forklifts were fitted with reverse beepers and flashing lights but it was not common practice for forklifts to sound horns for forward motion. When Mr Warwick visited the site after the accident and while in conversation with Mr Dadd, Mr Warwick said that he should not have been there and he was in the wrong place at the wrong time. 12 Mr Dadd spoke of Mr Warwick's 35 years' experience in heavy vehicle operation and the fact that he had been carting timber from timber sites for over 20 years. Mr Warwick had carted timber from Boral at the South Kempsey mill in the 1980s when he worked for another transport company and was known to many Boral timber plant managers. It was accepted that Mr Warwick had not previously delivered to the Murwillumbah plant but he was well known at other Boral timber plants and was familiar with the product and the procedures employed by Boral timber (the defendant). Given that experience, Mr Warwick would have know to check for the location of the forklift and not to go in close proximity to the truck during the unloading process without the forklift being in view. 13 Mr Leboydre was a fully licensed forklift driver, supplied by a labour hire agency, who had worked at the plant since March 2005. Mr Leboydre had over 500 hours forklift experience as well as over 500 hours experience as a truck driver. He had undertaken material handling activities from 18 April 2005 and had regularly been involved in the unloading of trucks entering the Murwillumbah plant. Mr Leboydre had been given a "verbal induction" by his employer regarding his duties and the site layout prior to starting work at the Murwillumbah plant. He had undertaken regular safety checks in accordance with the verbal induction and prior to the accident, on 26 June 2005, had signed the checklist as required. 14 At the time of the accident, Mr Edward Sipolis was the production supervisor on duty and he had been working for Boral Timber since late August 2004. He was certified in the use of the forklift and regularly instructed forklift drivers by spot checks in regard to loading and unloading timber from trucks and assessed them as to their competency. 15 Prior to this accident, a Safe Working Procedure ("SWP") for unloading trucks had been instituted. From approximately 31 August 2004, a SWP was distributed to the operations manager, the production manager and the safety co-ordinator at the site by email. Mr Sipolis was given a hard copy of this procedure. The procedure had originally been used at the structural plant at Murwillumbah and had been modified for the new engineered flooring plant at the site. Mr Dadd stated that in all respects this procedure had been followed on the day of the accident except Mr Warwick was not wearing hearing protection and was not a safe distance from the unloading of the truck. As explained in oral evidence, the SWP had its origin elsewhere and had been introduced by Boral in May 1997 but had been adopted without amendment at the Murwillumbah plant. The SWP dealt with protective equipment, licenses and permits that were required, equipment maintenance and then set out eight matters under the heading "General". One of those eight points was to "make sure driver is a safe distance"(sic). Mr Dadd further noted that at all Boral timber sites, first-aid facilities and materials were provided to ensure that an injured worker could be treated appropriately. In the present accident, Mr Warwick was provided with first-aid immediately after the incident and an ambulance was called. 16 In oral evidence Mr Dadd said that, in the overall timber business conducted by Boral in Australia, there were approximately 900 employees and at the Murwillimbah plant there were approximately 60 employees at the time of the accident, although that number had now grown to 100. It was later clarified that approximately 70 per cent of the 900 employees throughout Australia were employed in New South Wales. The new factory at Murwillumbah was a large site, although the loading and unloading areas were much the same as for the previous operation. These areas were off to the side of the factory and some distance from it and people would not normally walk or drive in the area. In relation to lost time injuries throughout Australia in the current year, only four injuries had been recorded and none recorded at the Murwillumbah plant. To be recorded, a full day needed to be lost and Mr Dadd regarded this as a good lost time record, reflecting well on the defendant's safety consciousness. The defendant had bench marked its safety against its peers in the industry but that was not an easy task because none were as large an operation as the defendant. Nevertheless, the defendant was in contact with other industry participants, used any data they published and also assisted other industry participants with issues of safety. He believed the defendant was one of the leaders in the timber industry in Australia. 17 In cross-examination, Mr Dadd said that the defendant was Boral's holding company and operated in the timber industry and as other companies were acquired, they became wholly owned subsidiaries of the defendant. He agreed that there was no system to ensure that a person attending the site for the first time would go to the office and the defendant relied on the sign at the front of the premises requiring visitors to take that course. It was accepted that when Mr Warwick arrived at the plant and met the forklift driver, he was not told of the need to go to the office. Mr Warwick was in the unloading area and the forklift driver helped him to unload. The overall system of loading had not changed after the accident. It was a standard load/unload system but required the truck driver and the forklift driver to work closely. It was a sequential process with layers of the load to be removed at different times. That process did not require the forklift driver to wait for all the ropes and chains to be removed but the driver had to stand away from the truck while a load was being removed by the forklift. Mr Dadd agreed that there needed to be communication, including eye contact, between the driver and the forklift driver as both needed to know where they were during the loading and unloading process. The company had now introduced induction for the first time and that had not occurred prior to the accident. 18 Mr Dadd had arrived at the site approximately half and hour after the accident and although he observed the scene, he could not remember if there were other forklifts working in the area although there were other forklifts available to do so. He thought, however, that it was extremely unlikely that another forklift was working in the vicinity. The unloading area was closer to the packing area of the factory and this was a low noise level area where people could easily converse. Mr Dadd accepted that Mr Warwick moved away from the truck at the first lift and that was good driver practice. He conceded that if Mr Warwick was standing on the opposite side of the truck to where the forklift was removing the load, and was standing with his head down putting chains and straps into his toolbox then he would not have seen the forklift. Nevertheless, he was surprised that Mr Warwick could not hear this very noisy machine because Mr Dadd was not aware of any other background noise. He knew that there was another truck and Mr Warwick had followed that truck into the plant but he knew nothing more about the operations of that other truck. 19 In relation to the SWP that had been adopted from a Boral procedure issued in 1997, Mr Dadd accepted that, in simply stating that the forklift driver was to make sure the driver was at a safe distance, it did leave the two drivers to apply commonsense. The defendant had provided good equipment, a good flat area and in relation to the risk had relied on the commonsense of the forklift driver and the truck driver. After the accident, all procedures were reviewed and there was an upgrade of training and induction and now detailed instructions were given to the forklift driver and truck driver. Mr Dadd denied that the safe work practice document used prior to the accident was inadequate and pointed out that it required flexibility and there could not be detailed directions given as to where everybody should stand in every circumstance. Everyone had to exercise judgment in relation to safety. It was accepted that neither the forklift driver nor Mr Warwick had seen this document. It was said to be left to the production supervisor what parts of the document would be applied at Murwillumbah. 20 In re-examination, Mr Dadd was asked what was the procedure in the office had Mr Warwick reported to the site office in accordance with the sign at the front of the plant. He said that visitors to the site would stop off at the office and obtain directions and in Mr Warwick's case, he would be directed to the unloading area where the forklift driver would take over. Even if he received the induction that was implemented later, the defendant would rely on the commonsense of the people involved to stay clear of a nearby forklift. 21 Mr John McAuliffe had been the General Manager, Human Resources for the defendant since late December 2003 and had experience in occupational health and safety. He described Boral timber as being a wholly owned subsidiary of Boral trading under the name "Boral Timber". The business involved the production and distribution of hardwood, softwood and plywood timber and thus the safe handling and loading of trucks was a key activity in the business. Over years of operation, the defendant had introduced and refined its SWPs for unloading trucks to ensure safety. Over the past five years the defendant had loaded and unloaded, on average, 85,000 trucks per year. On average, 480 trucks were loaded and unloaded at the Murwillumbah plant. Mr McAuliffe also spoke about the company employing a large number of people at 15 manufacturing facilities and various plants, showrooms and warehouses in New South Wales, Victoria, South Australia and Queensland. 22 The defendant had been operating in the timber industry for over a 100 years and Mr McAuliffe spoke about it as being seen as an industry leader in the area of safety. The defendant sits on the New South Wales Forest Safety Advisory Group, a body established by the New South Wales Government to develop industry safety benchmarks and develop a comprehensive prevention programme. Other representatives on the Advisory Group were WorkCover NSW, Forests NSW, the Timber Trade Industrial Association, Forestry Industry Council (New South Wales), NSW Forest Products Association, NSW Department of Primary Industry and the Australian Workers Union. 23 The defendant had been conducting an annual benchmarking exercise with the largest Australian hardwood manufacturers for the past three years. The results were consolidated and reported to each participant in an effort to improve safety across the industry. Mr McAuliffe noted that the defendant had consistently been deemed to have the best statistical record. 24 The steps taken in relation to safety in the construction of the Murwillumbah plant were dealt with in some detail by Mr McAuliffe as well as the benefits to the local community brought about by the construction of this type of plant and how it was supported by all levels of government. The recruitment and training process was spoken of, including the appointment of a Human Resources/Safety Co-ordinator employed from May 2004 to develop recruitment tools, safe working procedures and to establish a training regime to deliver safety in business outcomes. Reference was made to a lengthy assessment period and the method of choosing employees and the fact that an aspect of that process was safety behaviours and teamwork. There was a recognition by the defendant that significant investment in training was to be undertaken and a number of training organisations were reviewed. Ultimately, the defendant decided to work with the North Coast TAFE to offer all wage employees the opportunity to complete the Level 2 Certificate in the Forest Industry Training package. Of the 40 persons employed as at June 2005, 39 chose to undertake this training. 25 In addition to the SWPs a further safety system, referred to as "safe mate" was introduced and was phased into the business while the plant moved from the project phase to the commissioning phase and to normal operations. In October 2004, the General Manager, Hardwood and Boral Timbers National Health and Safety Manager met with employees to introduce the safe mate philosophy. The Health and Safety Environment Manager was located on site to oversee the introduction of this system in a progressive and controlled manner and worked closely with site management and the local Human Resources/Safety Co-ordinator in the implementation of the system. The system aimed to achieve and to continually improve a number of occupational health and safety outcomes, including the provision of regular information relevant to occupational health and safety and injury management issues, improvement of visibility of workers and safety warnings, improvement of training and development of employees and contractors on the premises, improvement and development of recording and reporting of events, incidents, risks and other occupational health and safety issues on the premises, a framework for dealing with injuries to employees, their return to work and arranging suitable duties. 26 Immediately after the incident, the defendant arranged for the injured driver's family to be transported close to his hospital and the defendant paid for all associated accommodation costs. These costs were in excess of $2,100. When Mr Warwick required additional treatment in Newcastle in August and September 2005, the defendant again paid accommodation and met meal costs of the family in excess of $2,400. On the day of the accident, a memorandum was sent to all drivers, hauliers and sub-contractors setting out the possible reasons for the incident and announcing interim safety measures to avoid the drivers being unsighted by the forklift driver when unloading took place. While a full investigation was to be carried out the memorandum stated that, under no circumstances, were the drivers, hauliers and sub-contractors to allow their truck to be unloaded while they were removing load restraints or otherwise working on or near the vehicle and that, while the vehicle was being unloaded, they must stand in an agreed safe location at the front or rear of the truck in clear view of the forklift driver. 27 The defendant conducted a full investigation of the incident and while it was initially thought there should be a reduction in the length of the tynes on the forklift, it was ultimately decided that a range of tynes up to 2.4 metres were required to cope with the variety of loads that the defendant dealt with daily. After the investigation, a "Significant Incident Report" was sent to all the defendant's operation centres. Mr McAuliffe described this Report as a learning tool that provided a brief statement of the incident giving rise to a risk to safety and the actions implemented to avoid the risk. 28 Following this accident, the defendant reinforced unloading procedures for the premises and all workers received training and supervision in the procedures. Those procedures were: (a) clear marking out of the designated area where loading/unloading of trucks was to take place. The designated area was purpose built at the time of construction of the new plant and was gravel based, with an area for the driver indicated by markings painted on the surface. The marking of the designated area was designed to keep others, not involved in the loading/unloading process, well clear of any risk; (b) the reinforcement of the requirement for all workers on the premises to wear high visibility clothing; (c) where appropriate, ensuring that unloading was undertaken from both sides of the truck in a safe manner, and (d) refitting the forklifts with tynes appropriate to the load and the forklift. 29 Further steps taken after the investigation involved the existing SWPs being reviewed and improvements were developed. The truck driver site induction programme was improved by the introduction of an induction for truck drivers with loading and unloading procedures. In that induction the procedures referred to high visibility vests, hard hats and suitably enclosed footwear to be worn at all times on site, that all truck passengers were to alight from the truck and wait at the site office or designated area, the truck drivers were to assess their loads before removing chains, straps or ropes and truck drivers were to remain outside the exclusion zone of the loading bay. Mr McAuliffe stated that, as previously required, a truck driver on arrival at the site was directed to the office by signs at the front gate and on arrival at the office, the induction programme now required the truck driver to review the information sheet provided together with a questionnaire, to undertake the questionnaire and if the driver wrongly answered any question, they were to be retrained on the question and asked to take the questionnaire again. Where a driver correctly answered all questions he was to be given a card to be shown to the forklift driver at their designated loading/unloading area prior to any load being removed from the truck. An on-line induction register had been developed to track truck driver inductions and to maintain validity. All forklift drivers at the plant had been re-trained in the work methods. 30 Mr Ross Dill was the General Manager, Occupational Health and Safety with Boral Ltd, a position he was appointed to in July 2006. Mr Dill had held a number of positions in human resources including senior management positions in a number of private and public sector business over a period of 25 years. He spoke of Boral as being a large corporate entity involved in the supply of diverse manufactured products and raw materials for the building and construction industry as well as other associated industries. There were some 173 control entities and diverse businesses making up the group involved in a variety of areas, including plaster board manufacture, timber harvesting, masonry manufacture, roof tile manufacture, brick manufacture, window manufacture, cement manufacture, concrete pumping, formwork and scaffolding, asphalt manufacturing and road making, quarries and concrete pre-mix. In many of these undertakings there was also involvement in sales. There were six operating divisions. The timber division was comprised of four units, namely, residues, softwoods, hardwoods and plywood. In New South Wales, Allen Taylor (the defendant in the proceedings) operated in both regional and metropolitan areas. The defendant owned and operated the engineered flooring plant at Murwillumbah where this accident occurred. 31 Boral was said to have a commitment to occupational health and safety flowing from the Board and senior executives and this was shown by its health and safety management systems, its employee health programme and the employee assistance programme. The health and safety management system structure recognised the scope and diversity of the business in the group, thus minimum corporate requirements of the business were articulated to ensure consistent practice across the group. The businesses and the group were able to develop health and safety management systems that addressed their individual requirements. A minimum requirement for these systems was compliance with all relevant State and Commonwealth health and safety legislation. That system embodied the principles contained in A/NZS1401:2001 and 4804:2001. 32 The occupational health and safety structure was explained in some detail by Mr Dill. The responsibilities for developing occupational health and safety strategies, reporting lines and the de-centralisation of their management of occupational health and safety were explained as were the benefits of the approach of the Boral group. It was said that the timber division and its business units had systems that were, at least, "good practice" while some performed "leading edge activities" in occupational health and safety in the timber industry in Australia. An example identified by Mr Dill as good practice was the hazard identification and elimination programme while the programme relating to machine guarding and the use of fortress locking and electrical light curtains was regarded as an example of leading edge activity. Employees were actively involved in occupational health and safety in the Boral group in a number of ways, ranging from individual safety observations and conversations through to more formal safety committees. 33 The dissemination of occupational health and safety information was also dealt with by Mr Dill. In his position he had a global overview of safety issues. He circulated safety issues to a number of senior bodies including the Chief Executive Officer, the Management Committee and the Divisional and Business Unit Occupational Health and Safety Managers and to key operational managers. There was also the use of the Boral internet and web based tools and it was explained how there were links to safety solutions, safety alerts, significant incidents and safety learning. There were reporting requirements and access to safety information throughout the group. Examples were given by Mr Dill in his evidence. He explained how safety data was available for review and analysis. 34 There was a Boral induction manual for all new employees that provided general information about Boral, its policies, systems and procedures including safety matters. Boral also published management guidelines to provide direction for all Boral employees, especially management and these guidelines featured several important occupational health and safety environmental policies that were regularly reviewed and updated. It was said that these guidelines reflected Boral's commitment to achieve its strategic objectives, not only in returning value to its shareholders but also to meet its legal obligations with respect to the health and safety of all people involved in the group. Each business unit within the group would develop specific systems of work and the effective management of occupational health and safety matters but they were to fall within the overall strategy that was consistent for the group. 35 Mr Dill also spoke about the number of charity and community activities that the Boral group supported, including the fact that it had committed $1 million to the Asian Tsunami Support Appeal. DELIBERATION 36 The defendant entered a plea of guilty to an Amended Application for Order alleging a failure to provide and maintain a safe system of work for the task of unloading timber from trucks, and a failure to induct and/or train and instruct workers in a safe system of work for the task of unloading timber from trucks at the premises. The prosecutor submitted that this was a serious breach, bearing in mind that the company was aware of the danger associated with unloading a truck and the need for the driver to stand clear as exhibited by the 1997 SWP which had been adopted without amendment for the Murwillumbah plant. It was clearly foreseeable as recognised by the SWP that, absent the basic and uncomplicated steps of ensuring that the driver kept clear of the load while it was being removed from the truck, serious injury could occur in such an exercise. The defendant, however, urged that this was an offence where there was a low level of culpability. Both the truck driver and the forklift driver were well trained and experienced and the truck driver knew, as acknowledged by his own statements, that he should not have been at the rear of the truck at the time. The forklift driver had been selected from a labour hire agency, was ticketed and certified for the position and had a great deal of experience both in forklift driving and truck driving. There was nothing about the surrounding area that added to the danger of the task and the driver had failed to attend at the site office as directed by the sign at the gateway to the plant. The defendant had a very good safety record as did the group of which it was part and they paid close attention to issues of safety. It was further submitted that it was difficult to understand how Mr Warwick did not hear the forklift return to the truck as it was a noisy piece of equipment, and the work was taking place well away from the factory in an atmosphere of relative calm where normal conversation could take place. In addition, there had been no proceedings taken against Mr Warwick's employer nor against the forklift driver's employer. 37 There are matters of substance in both these submissions but ultimately this was a situation where very simple and rudimentary steps, if enforced, would have prevented the risk to safety that ultimately led to the very serious injuries sustained by Mr Warwick. It is significant that, had Mr Warwick attended at the site office, no more would have happened than that he would have been referred to the forklift driver in the unloading area: no directions were given to the forklift driver about carrying out his task and ensuring that the truck driver was clear of the truck during the unloading process. As it turned out, Mr Warwick found the unloading area himself, met the forklift driver and they commenced the process of unloading the truck. The forklift driver had not been instructed to give any particular direction to the truck driver as to where he should be while the load was being lifted off the truck or that he should remain in clear vision while this exercise was undertaken. There was no instruction that the forklift driver should not continue to unload the truck where he had lost sight of the truck driver. The SWP dating from 1997 that had been adopted for the Murwillumbah plant had not been given to, or explained, to Mr Warwick or the forklift driver, Mr Leboydre. The requirement for the driver to stand clear of the forklift and to be in view of the forklift driver during the unloading exercise was not a complex instruction nor did it have to be conveyed in any elaborate document. These were simple workplace tasks where simple and straightforward instruction could address the obvious risk to safety. Effectively, the two drivers were left to adopt their own procedures. 38 The defendant's culpability is not reduced because Mr Warick, as an experienced driver, knew that he should stand aside from the truck while it was being unloaded in the sequential order referred to in the evidence: he said that he was simply unaware of the presence of the forklift. The defendant's position appears to be that Mr Warwick not only knew what he had to do, but that it was hard to believe that Mr Warwick did not hear the forklift return after dropping a load of timber. The defendant relied on evidence as to the generally quiet nature of the location where the unloading task was taking place and the very noisy nature of the forklift while in operation. That evidence is largely based on assumptions made by Mr Dadd and there is no evidence from people who were at the scene at the time of the accident as to whether another forklift was operating in relation to the other truck that Mr Warwick followed into the plant. The defendant's case suggests that Mr Warwick, effectively, took the chance that he would be safe by continuing to put away the chains and securing straps into the toolbox of the truck when he knew that the forklift was on the other side of the truck and picking up a load from that part of the truck where he was then standing. This theory of the incident is difficult to accept in light of the fact that Mr Warwick had stood away from the truck when the first load was lifted by the forklift, an action he took based upon his experience and recognised by Mr Dadd as being good driver practice. Mr Warwick in his statement to WorkCover stated that, by long experience, he was aware of this danger but if he had known that the forklift was on the other side of the truck, he would not have been there. Mr Dadd's assumptions are not sufficient to call into question Mr Warwick's statement. 39 The defendant submitted that the conduct of Mr Warwick had to be weighed "in the overall evaluation of what happened", but it has long been accepted that the purpose of the Act is to introduce safe working processes so that accidents are prevented. Thus, Bauer J stated in Inspector Twynam-Perkins v Maine Lighting (1995) 100 IR 248 at 257: The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. Employers therefore need to be diligent in ensuring safety and in addressing reasonable contingencies. In the present case, the defendant had an SWP expressed in a short phrase but that approach was not diligently impressed upon or reinforced with the workforce. Even if the defendant's theory of the accident was established, it would not operate to reduce its obligations to provide a safe system of work although it may be relevant to the question of the level of culpability. The defendant's approach also committed the error of concentrating on the accident rather than the risk to safety identified in the particulars. 40 Given the simple nature of the instructions that should have been given and enforced and the foreseeability of the risk to safety if drivers were not directed to stand clear of the truck during unloading and to remain in the clear vision of the forklift driver and the simple remedial steps available to address safety, this breach is to be properly considered as a serious breach of the Act. 41 The defendant then briefly referred to the fact that the employers of the truck driver and the forklift driver were not charged in relation to this incident. However, there is simply no evidence of substance of the training or lack of training given to both drivers by their respective employers. There is no evidence of the defendant requiring specific directions to be given by these forklift drivers to truck drivers when loading and unloading on the defendant's plant at Murwillumbah, nor is there any evidence of the defendant requiring the employers of those forklift drivers to give them certain instructions about the loading and unloading process. Indeed, it was clear from the defendant's submissions that it did not know if the forklift driver, the truck driver or both "got it wrong". Further, the defendant ignores the fact that Boral Transport Ltd arranged this delivery and, on its own approach, might be culpably implicated by failing to give safety instructions to Mr Warwick's employer or to Mr Warwick. In those circumstances it is quite impossible to conclude that there are others who are culpable in relation to this accident and that, upon a proper analysis of that culpability, the culpability of the defendant should be reduced in some way. 42 In relation to general and specific deterrence, while the prosecutor urged that, in accordance with the decision in Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [74] to the effect that both aspects of deterrence are matters that should normally be given weight of some substance in the sentencing process, the defendant contested that approach arguing that in this case, given the attention to safety exhibited by the defendant and the Boral group, the size of the operation and the good safety record shown to exist, there was no cause for these factors to form a significant element of the penalty. In addition, the defendant was a very significant player in this sector of the industry, already had extensive safety systems but had acted to "tighten up" the safety rules following a review of the procedures after this accident. There were a large number of loadings/unloadings undertaken without incident and the defendant had assisted others in the industry with matters of safety. 43 When a major industry player and a self-nominated industry leader fails to ensure the safety of persons in its workplace, in the manner found in this case, a general message needs to be sent to the other players in the industry that they must be alert to these basic tasks where simple steps will ensure the safety of people in the workplace but where the failure to fully attend to such risks can lead to dire consequences and very severe, if not fatal, injuries. In relation to specific deterrence, the defendant has other offences, although of a very different nature, in other aspects of its operations with a number of those occurring many years ago. It continues, however, to operate in a heavy industry with attendant risks to safety and has not demonstrated that this is a case where specific deterrence should play little or no role in the setting of an appropriate penalty. In all the circumstances, the penalty will reflect the significant aspects of general and specific deterrence. 44 As earlier indicated, the defendant's record dates from 1960 with an apparently minor offence under the Factories Shops & Industries Act and did not come to notice again until nearly 28 years later. The two major offences of significance in recent times is a $75,000 fine in 1993 for a breach of s 15(1) of the Occupational Health and Safety Act 1983 involving a fatality and five offences in 1998 under s 15(1) resulting in a global penalty of $20,000. The judgments in those two matters were before the Court and they set out the circumstances in which the offences were committed. The defendant's submission is accepted that those judgments deal with very different aspects of the defendant's business and do not involve the same type of breach as particularised in the present matter. That record, however, does result in the maximum penalty available being $825,000. 45 In Veen v The Queen (No2) (1987-198) 164 CLR 465, the majority stated that the previous criminal history of an offender may be taken into account in determining a sentence but it could not be given such weight as to lead to a penalty that was disproportionate to the gravity of the offence. The history was relevant to show whether the offence was an uncharacteristic aberration or whether the offender had manifested a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may indicate that a more severe penalty is warranted. In accordance with that approach, while it cannot be stated that the offence is an aberration, the defendant has been a significant player in a dangerous industry over a long period of time and has had significant periods where no offences were recorded. The last offence occurred more than a decade ago. Importantly, that prior record does not demonstrate a continuing attitude of disobedience of the law. 46 It is also relevant to consider what was said by the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Weininger v The Queen (2003) 212 CLR 269 at [32]: ... a person who has been convicted of, or admits to, the commission of other offences, will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender, are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters: it is to take proper account of matters which are relevant to fixing the sentence under consideration. Having regard to the statements in both Veen and Weiniger the prior offences of the defendant will be taken into account in light of the discussion above and for the limited purposes indicated in the authorities. 47 There are a number of subjective factors to be considered. The prosecutor conceded and the Court record confirms that, on the filing of an Amended Application for Order, the defendant immediately entered a plea of guilty. That early plea of guilty entitles the defendant to a discount of the penalty. The appropriate discount in this case appears to be 25 per cent but I am unable to establish a case, as strongly suggested by the defendant, that a much higher discount should be allowed. In the circumstances of this case, a discount of 25 per cent shall be allowed due to the early plea. There is evidence of the defendant co-operating with the WorkCover Authority investigation and the early plea, together with the steps taken to assist the family of the victim, demonstrates the defendant's contrition. Although the defendant has a prior record, (discussed in the paragraphs above) that record stretches over nearly 50 years and it is to be understood that the 1998 incident, while involving five charges, was treated as one event. The record, therefore, is entitled to be considered as a good industrial record considering the size of the undertaking, the number of people engaged in it and the heavy industry nature of the undertaking with the risks that attend upon such an undertaking. The evidence shows that the defendant to be a good corporate citizen supporting local communities and charities. The defendant also acted quickly to address the risks to safety demonstrated by this accident, reviewed its safety procedures and took a number of remedial steps. It had well developed safety systems, including in the Boral Group, but they were deficient in relation to this aspect of the undertaking. It can be accepted that the defendant "tightened up" its system regarding loading and unloading. These matters are all of significance and will be taken into account in mitigating the penalty to be imposed. 48 Having determined that the plea of guilty was properly entered, that the defendant should be convicted of the breach and a penalty imposed, it is appropriate to then consider the Victim's Impact Statement that was handed up during the proceedings. Mr Warwick repeated the physical injuries that he had received and attached a number of medical reports and WorkCover certificates in relation to the accident. He described in some detail the surgical treatment to which he was subjected and his considerable ongoing disabilities. He also described how his debilitated condition had placed strains on his relationship with his wife and family and described the nature of his ongoing treatment. He feels cheated of the ability to continue working in a job which he loved and had followed for over 35 years and was frustrated by the fact that, as an active person, he could no longer do simple things, even around the home. It has previously been noted that a Victim's Impact Statement serves to remind Judges of the real effect of the crime on the victim and provides an opportunity to victims to have proper public respect paid to their pain and suffering. Those objectives have been achieved in the present case and the Court is better placed by receiving this statement to fully understand the consequences for Mr Warwick as a result of the injuries he received in this accident. ORDERS 49 (a) The defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 1114 of 2007. (b) The defendant is fined the sum of $115,000 with half that sum to be paid to the prosecutor by way of moiety. (c) The defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 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 and empowered under Section 106 of the said Act to institute proceedings in the within matter. 2. At all material times ALLEN TAYLOR & COMPANY LTD (ACN 000 003 056) was a corporation whose registered office is situated at AMP Centre, Level 39, 50 Bridge Street, Sydney, in the State of New South Wales ("the defendant"). 3. At all material times the defendant was involved in the business of production and distribution of hardwood, softwood and plywood timbers. The defendant was a fully owned subsidiary of Boral Limited. 4. At all material times the defendant was an employer and employed Sven Gade as its Operations Manager, Engineer Flooring 5. At all material times the defendant operated the Boral Timber site located at 148 Tweed Valley Way, Murwillumbah, New South Wales. 6. The defendant had a number of its own employees working at the site as well as persons supplied under contract through a labour hire company. There were also a number of sub contractors, such as operators of the timber carrying trucks, undertaking work at the site. 7. At all material times John David Warwick, a heavy vehicle operator/driver was employed by The Keast Family Trust t/a P & H Keast, a sub contractor of the defendant. Mr Warwick was born on the 9 April 1953 and has been operating heavy vehicles for over 35 years. 8. At all material times, Mr Andrew Leboydre, a forklift operator was employed by a labour hire company, Skilled Group, and was contracted to undertake work under direction of the defendant at the site. Mr Leboydre was a qualified forklift operator and held a certificate of competency for the operation of forklifts issued by Workplace Health and Safety Queensland. 9. At approximately 11pm on 14 July 2005 John Warwick arrived at the site in his truck with a load of timber and parked outside the gates. He slept there until approximately 7am on Friday, 15 July 2005 when he entered the site. There had been another truck parked in front of him and he followed this vehicle into the yard. This was his first attendance at the site. 10. Signs at the gates of the site did not indicate a designated unloading area and Mr Warwick was not approached by anyone for an on-site induction. He pulled up where he thought was appropriate, off the left hand side of the roadway near the sheds. He asked a forklift driver in the vicinity, Andrew Leboydre, if he could un-tarp and unload where he had stopped. Mr Warwick proceeded to un-tie the tarp and Mr Leboydre came and helped him roll it up. The load consisted of 15 packs of timber wrapped in yellow plastic. The packs were stacked 4 across and 2 high. There were gluts between the bottom and top packs. Mr Warwick proceeded to unchain the load so the forklift could unload the trailer. Mr Leboydre commenced to unload the semi trailer with the forklift. He first took 3 packs/slings from the top layer at the rear of the trailer from the driver's side. Mr Warwick stepped back from the trailer for safety reasons. 11. Mr Warwick resumed working on the chains and "dogs" (pullers) at the front of the trailer and packing them away in the toolbox on the left hand side of the trailer. Mr Leboydre drove the forklift back to the semi trailer and went to pick up the other top stack. Mr Leboydre's account is as follows: I moved the top stack from the rear of the truck out into the yard. I came back and went to pick up the other top stack (4 across and at the prime mover end). I ran the fork tynes through the first three packs and felt no resistance, and then I saw light come through where the 4th pack should have been. Mr Warwick's account is as follows: The forklift took the 3 slings from the top layer at the rear of the trailer first from the driver's side while I was still unchaining the front of the trailer. I assumed that he could then take the 4 slings from the bottom layer from the rear of the trailer. I was still working on the chains and "dogs" (pullers) at the front of the trailer and packing them away in the toolbox on the left hand side of the trailer. I did not hear the forklift return to the trailer after he took the top slings from the rear and thus had no indication where the forklift was. Next thing I knew there was a sling on top of me. 12. Mr Warwick's account of what happened next is as follows: The forkie stopped his machine when the pack fell and he sang out "are you alright John?" I tried to call out "No" but I was too winded for it to come out. The forkie came running around the rear of the trailer to me. He yelled for help. He supported my head as other workers came and removed the timber from me . Mr Leboydre's account of what happened after he took the three packs is as follows: Then lifting the 3 packs that were on the tynes up I called for the driver to see where he was, but the air was being dumped on the trailer (due to the weight being removed) unable to hear him I then stopped the pulling away from the truck process. I got out of the forklift and as I walked around the back of the truck I heard the truck driver calling for help, as I rounded the back of the truck I saw John lying parallel with the trailer his head facing the rear of the truck. I rushed closer and saw John had badly broken both of this legs below the knee, at this time I noticed there was no timber lying across John's body, even though the pack of wood had split open causing the timber to spread . 13. Mr Leboydre did not see Mr Warwick when he returned to the trailer to unload the next lift of timber. 14. The injuries Mr Warwick, sustained as a result of the incident were compound fractures of both legs (tibia) and a burst fracture of L3 vertebra. 17. The defendant had a documented safe work procedure called "Boral Murwillumbah Safe Working Procedure Unloading Trucks", dated 31 August 2004 which had been issued by Boral and was circulated to area supervisors in August and September 2004 by email. This Safe Work Procedure was not given to nor explained to either the Mr Warwick or Mr Leboydre prior to this incident occurring. 16. No induction or training had been provided by the defendant to either Mr Warwick or Mr Leboydre in relation to the unloading of timber slings/packs by forklift from semi trailers at the site. 17. There was no evaluation by the defendant of the competence of Mr Warwick as this was his first visit to this Murwillumbah site. The production supervisor at the site, Edward Sipolis, had evaluated Mr Leboydre as Mr Leboydre had been working on this site since the 9 March 2005. Mr Sipolis had assessed Mr Leboydre as very competent, however Mr Leboydre had received no direct training in relation to the unloading of timber slings/packs from semi trailers. 18. Mr Sipolis was Mr Leboydre's supervisor. Carrying out the task of unloading timber by forklift from trucks was part of Mr Leboydre normal duties. 19. Shortly after the accident the defendant issued a memorandum which indicated a full investigation would be carried out and included the following interim instructions: · Under no circumstances shall you allow your truck to be unloaded while you are removing load restraints or otherwise working on or near your vehicle. · While your vehicle is being unloaded you must stand in an agreed safe location at the front or rear of the truck in clear view of the forklift driver. 20. Once the accident investigation was completed the defendant released a document called "Boral Timber – Murwillumbah Accident Investigation John Warwick – crush injury – both lower legs 15 July 2005". 21. The defendant also issued a document called "Boral Timber Significant Incident" for placement on notice boards. 22. By the end of July 2005 the defendant had commenced toolbox meetings and pgraded the site's safety management systems. All forklift operators and truck drivers were re-inducted with a new safe work method, and an assessment was undertaken of these persons to ensure their understanding of the work method. The assessment was in the form of a questionnaire entitled "Boral Timber Murwillumbah Truck Loading/Unloading Procedure – Questionnaire". This questionnaire formed part of the new induction booklet which also included the new safe work procedure for truck loading and unloading on a document entitled "Truck Loading and Unloading Zone. 23. Initially after the incident the forklift was fitted with a set of shorter tynes to ensure that the forklift cannot pick up 4 packs of timber at one time. The process required the truck to be unloaded from both sides not just the one side as was the case at the time of the accident. 24. The following supporting documentation is annexed: a) 9 Colour photographs taken by Inspector Vierow on 15 July 2005; b) Factual Inspection Report of Inspector Vierow dated 15 July 2005; c) Boral Timber Accident Investigation and Accident update report; d) Memorandum to all drivers, hauliers and subcontractors dated 15 July 2005; e) Boral Timber Murwillumbah Truck Loading/Unloading procedure – questionnaire; f) Boral Timber Significant Incident; g) Induction Handbook; h) Prior convictions certificate. oo00oo 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.