Industrial Relations Commission of New South Wales in Court Session CITATION: WorkCover Authority of New South Wales (Inspector Stephen Jones) v Whites Stock Transport Pty Ltd [2006] NSWIRComm 381 PROSECUTION: WorkCover Authority of New South Wales (Inspector Stepen Jones) PARTIES: DEFENDANT: Whites Stock Transport Pty Ltd FILE NUMBER(S): IRC 6662 of 2005 CORAM: Marks J CATCHWORDS: OH & S - plea of guilty - particulars confined risk to unsafe trailer as no adequate platform & unsafe ladder permanently fixed- agreed statement of facts tendered - no evidence adduced as to cause of accident - assessment of penalty - defendant following industry practice. HELD: Offence objectively serious - general deterrent & specific deterrent considered - mitigating factors - no application of s 10 Crimes (Sentencing Procedure) Act - penalty imposed. LEGISLATION CITED: Occupational Health & Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 HEARING DATES: 28/11/2006 DATE OF JUDGMENT: 12/13/2006 Mr P Skinner of counsel SOLICITOR: Ms B Benson Legal Group WorkCover Authority of NSW LEGAL REPRESENTATIVES: Mr M Joseph SC with Mr D Stanton of counsel SOLICITOR: Mr D Morgan Hallets Solicitors JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Marks J Wednesday, 13 December 2006 Matter No IRC 6662 of 2005 Inspector Stephen Jones v Whites Stock Transport Pty Ltd Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 381 1 The defendant Whites Stock Transport Pty Ltd has pleaded guilty to a charge brought against it by Inspector Stephen Jones of the WorkCover Authority of New South Wales alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). 2 S 8(1) is in the following terms: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 3 The charge as contained within the application for order alleges that the defendant "on 20 December 2003 at Regulator Road, Yanco in the State of New South Wales (premises) 1. was an employer; 2. failed to ensure the health, safety and welfare at work of its employees in particular John Jarman." 4 The particulars contained within the charge are as follows: (a) The defendant failed to ensure that plant provided for use by John Jarman at work, to wit a trailer for the transportation of livestock registered no. NT 64DJ, was safe and without risks to health when properly used. (b) The defendant failed to ensure that systems of work for the unloading of cattle and the working environment of John Jarman were safe and without risks to health. (c) The defendant failed to provide to John Jarman such information, instruction and training as was necessary to ensure his health and safety at work. 5 For the purpose of the proceedings, which are limited to an assessment of penalty, the parties agreed that the particulars that applied to the charge should be considered as if confined to a risk that the trailer was unsafe in that it did not have an adequate platform for viewing the cattle on the top level of the trailer and that an unsafe ladder was permanently affixed to the side of the trailer. On this basis, some of the material contained within the agreed statement of facts is not relevant to an assessment of the objective seriousness of the offence and other material that was admitted into evidence becomes relevant only in considering mitigation. 6 An agreed statement of facts was tendered for the purpose of the proceedings, which is in the following terms: 1. At all material times, the defendant was a corporation with its registered office situated at 2 Nashdale Lane, Nashdale, in the State of New South Wales. 2. The main business of the defendant is the pick-up, transportation and delivery of livestock. 3. At all material times Philip White, Cindy White and Judith McCulloch were directors of the company. 4. The company's head office and depot are situated at 42 Leewood Drive, Orange in the State of New South Wales. The defendant's employees 4. At all material times, the defendant employed eleven (11) employees that included: Mr John Jarman as a truck driver; Belinda Bunting as an Office Administrator and OH&S Coordinator; Cassie Garlick as an Office Administrator Philip White Managing Director The work 5. On 20 December 2003, Mr Jarman drove the livestock carrier to the Rockdale Beef abattoir, at Yanco, to deliver cattle which were being transported to the abattoir for killing and processing. The prime mover 6. On 18 February 2004 Inspector Jones attended the premises of the defendant located at 42 Leewood Drive, Orange. He was directed to the livestock trailer from which Mr Jarman fell. The trailer was still hitched to a prime mover. 7. Mr Jarman was driving a prime mover trailing a B-double double-decker live stock carrier with blue steel framing and silver metal sidings purchased in the year 2000, manufactured by Dickinson Stock Trailers in Dubbo New South Wales (trailer). The trailer was registered No. NT 64DJ. The prime mover and trailer had been supplied to Mr Jarman by the defendant for his use at work. 8. The trailer has two levels and is constructed from steel plate. A section of the decking, measuring 1200mm and 4000mm in length at the rear of the back trailer, is raised and lowered via hydraulic means and is used to create ramp access for moving cattle between the two levels. 9. The height of the trailer from the ground to the top rail is 4540mm. The height from the ground to the mid rail, being the top of the first level, is 2900mm. 10. A permanent ladder is attached to the rear trailer and provides external access from the ground to the top of the trailer. The ladder is constructed from 20mm square steel tubing and is held together with welds. The ladder measures 380mm in width and approximately 2200mm in length. The rung spacings are 270mm apart. The distance from the run to the side of the trailer wall provides a foothold of approximately 50mm. The distance from the ground to the first rung is 1600mm. The ladder is located 3100mm from the end of the rear trailer. The premises 11. On 23 February 2004, Inspector Jones attended the premises of Rockdale Pty Ltd located at 1 Regulator Road, Yanco, in the company of Inspector Simone Yates. At the premises Ms Ryan-Morrice, Rehabilitation Coordinator & Safety Officer, and Mr David Tricket, Site Safety Manager, drove Inspector Jones and Inspector Yates to the livestock loading area where the injury to Mr Jarman was reported to have occurred. The livestock loading area is located approximately 800 metres from the weighbridge office in a northerly direction and access is via bitumen road for the entire length of the journey. 12. The loading ramp is located in the far corner of a concreted area large enough to accommodate a B-double trailer and prime mover entering and negotiating a full turn so that it can reverse to the mouth of the livestock loading ramp. 13. Directly behind and adjacent to the loading ramp is a large livestock holding pen and cattle race leading into the feed lot which is situated along side the holding pen. 14. The loading ramp is of steel construction and is positioned on a concrete base. The concrete base is elevated from ground level. 15. The distance from the ground level to the base of the ramp is 1150mm. Directly adjacent to the base of the ramp is a set of concrete stairs with four steps which lead to a grassed area directly along side of the ramp. Leading off the stairs towards the opening of the ramp is a concrete retaining wall which is 5000mm in length and 1150mm in height. 16. The width of the ramp is 1700mm and the ramp is 4290mm from ground level to the top rail. 17. The ramp is 10000mm in length from the opening of the rear, which adjoins the cattle race and leads into the holding pen. The height of the rail at the point where the ramp joins the cattle race is 2200mm. 18. The loading ramp is fully enclosed on both sides with steel plate. 19. A steel railed walkway is affixed to one side of the ramp. There are four steps from the ground level to the first platform, which is 1150mm in height, at which point the ramp turns 90° and runs parallel along the side of the loading ramp. The flooring is constructed of steel checker plate. 20. An electric motor is located on the other side of the ramp, which is used to electronically open and shut the ramp opening. Next to the electric pump is an on/off switch which is affixed to the steel sidewall of the loading ramp. Incident of 20 December 2003 21. On 20 December 2003 Mr Jarman attended the premises of Rockdale abattoir to deliver cattle. 22. 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 a ladder on 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. 23. 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. 24. At approximately 5.15pm on 20 December 2003 Mr Jarman was in the process of unloading the cattle from the trailer into the loading ramp when it became necessary for him to observe the cattle inside the trailer. In order to access the top of the trailer, Mr Jarman climbed up on the permanent ladder fixed to the side of the trailer. Normal procedure for Mr Jarman, once he reached the required height to see the cattle in the top deck of the trailer, was to leave the ladder and stand on the cross railing which forms part of the trailer's steel frame work. 25. Also present at the loading ramp was Peter Ferguson (Mr Ferguson), a self-employed stockman contracted to Rockdale Beef to carry out general livestock duties. At the time of Mr Jarman's accident, Mr Ferguson was assisting at the ramp and was counting the cattle as they disembarked from the truck. As Mr Ferguson was walking back from the truck, towards the ramp, he saw Mr Jarman commence to climb a ladder on the side of the trailer. Mr Jarman climbed to a position where his hands reached the middle rail of the top deck. Mr Jarman did not seem to be in a hurry and was climbing at a normal pace. He saw Mr Jarman reachjust above his head for either another rung of the ladder or the middle rail of the trailer. It appeared to Mr Ferguson that one of Mr Jarman's feet slipped on the ladder rail at about the same time as he was moving his hands. He tumbled off the ladder backwards and fell head first, but did not see how he landed on the concrete surface adjacent to the loading ramp. 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. 26. Mr Jarman fell to the ground below. In the fall he sustained severe spinal injuries resulting in permanent T4 paraplegia 27. Mr Jarman had been employed by the defendant as a livestock driver for approximately 18 months prior to this accident. On this day, he was carrying out his normal duties for the defendant as a livestock driver including loading, unloading and transportation of livestock. Alleged failures 28. 29. Mr Jarman was not provided with any type of fall prevention or fall arrest device by the defendant or Rockdale Beef Pty Ltd when he was required to work from heights. 30. The carrying out of this activity was known to both the defendant and Rockdale Beef Pty Limited. 31. The system of work being followed at the time of the accident was the normal procedure carried out by transport drivers for the defendant and other transport companies. It was standard practice for drivers to climb up on the side of the trailer using the ladder so that they could watch and assist the cattle to exit the truck. 32. There was no risk assessment conducted or a written work procedure produced for drivers performing the work that Mr Jarman was undertaking on 20 December 2003. 33. Mr Philip White ("Mr White") stated that he was aware of the height his drivers were required to work and that he knew of one (1) other abattoir, Cargill at Wagga and Tamworth, that provide safety harness inertia reels and walk platforms for drivers to use as a means of controlling the risk of falling from heights. Since the accident Mr White stated he had purchased three (3) trailers specially fitted with a sliding rail designed for a harness attachment specifically for the purposes of fall prevention. 34. The defendant failed to provide Mr Jarman such information, instruction and training as was necessary to ensure his health and safety at work. 35. Mr Jarman had delivered to the premises previously, but he had never undergone a site induction or orientation and had not been provided with any information, instruction or training in relation to the unloading of cattle by any representatives of Rockdale Beef Pty Ltd. Events following the incident 36. Since the date of the incident, the defendant has implemented a written work procedure for the job of accessing the top of the trailer to release the cattle. 37. The defendant conducted a risk assessment of the task of accessing the top of the trailer commencing on 8 January 2004 and completed on 15 January 2004 with the main risk identified as risk of slipping and falling to the side of the trailer. The type of control measures considered appropriate for the task by virtue of the risk assessment were fall arrest devices such as harnesses and inertia reels. The ladders which allowed access were removed and employees were instructed not to climb the side of trailers. Employees were instructed not to use existing ladders on the front and rear of the trailers unless fall-arrest devices were installed. 38. The three trailers purchased by the defendant since the incident have come with a sliding rails where the harnesses are attached. 7 In addition to the agreed statement of facts a large number of documents were tendered into evidence and oral evidence was given both by the prosecutor and Mr Phillip White, a director and manager of the defendant company. 8 The totality of the evidence indicates that for many years, at least 30, drivers of trailers transporting live animals within that industry obtained access to the top of the trailers to monitor the position of the animals by using a set of steps fixed to the side of the trailer, as was the case in the circumstances of these proceedings. There seems from the evidence that there was a general awareness throughout the industry that gaining access to the top of the trailer, in view of the height, posed a safety problem. Indeed, there was evidence that two abattoirs, operated by the Cargill organisation, had erected structures to which wires were attached to enable drivers who were accessing the top of trailers to attach harnesses in the event that they might fall. 9 However, there does not seem to have been any general awareness within the industry about any undue risk to safety created by the use of the fixed ladders per se. As I have previously indicated, the particulars of the offence to which the defendant has pleaded guilty have been confined so that the risk to safety attaches to the use of the ladder itself and the absence of any platform upon which an employee might stand immediately adjacent to the ladder. 10 In this regard the defendant emphasised that the trailer that was being used by Mr Jarman had been supplied to the defendant by the manufacturer in 2000. As supplied, it came fitted with the side ladder that Mr Jarman was using at the time of the accident. The defendant said it neither knew nor ought to have known that the ladder was not appropriate in terms of its safe use. Furthermore, the defendant pointed to the fact that the safe access of trailers used to transport livestock was only addressed by the industry and by appropriate government authorities after this particular incident. Ultimately, it was necessary for government regulations to be altered to allow fall-arrest devices to be fitted to trailers and to permit a variation in specifications of the ladders in terms of the overall dimensions of trailers. 11 A complicating factor is that the ladders were counted as part of the dimensions of trailers for the purpose of other government instrumentalities licensing the use of trailers. If the ladders protruded too far from the side of the trailer, this would result in the trailers having to be reduced in interior size which would affect the number of cattle that could be carried from a commercial point of view. As is indicated in the agreed statement of facts, the ladder on which Mr Jarman was ascending was constructed of 20mm square steel tubing. I observe that this does not generally provide a comfortable and wide step. Furthermore, construing the agreed statement of facts, which is ambiguous in this regard, in the manner most favourable to the defendant, there would be at the most a distance of 70mm from the side of the trailer to the external part of the rung. A photograph of the ladder, tendered into evidence, does not appear to indicate that there is any significant handrail or other means for assisting in its use. 12 There is nothing in the agreed statement of facts or in the other material tendered into evidence that gives any indication as to what may have caused Mr Jarman to slip and fall. The prosecutor in his oral evidence made some vague reference to the presence of slippery material in general terms but none of that evidence could possible have gone to the circumstances which prevailed at the time of the accident. I am not prepared to draw any inference adverse to the interests of the defendant unless proven beyond reasonable doubt. 13 There was evidence given in the proceedings that the defendant was aware of its occupational health and safety obligations in a general sense and had taken steps to introduce a structured approach to occupational health and safety matters before this accident occurred. Since the accident, there is evidence that the defendant has made strenuous efforts to ensure that it meets with its occupational health and safety obligations, including an active involvement in the efforts of the transport industry to enhance the safety of operations of the kind that the defendant carries out. 14 There was evidence that Mr Jarman was an experienced driver and was particularly experienced in work associated with the transportation of livestock. He had performed this work on many occasions before without any difficulty. 15 Paragraph 37 of the agreed statement of facts is indicative of the measures that were available to the defendant to avoid or eliminate the risk of injury created by the circumstances that gave rise to these proceedings. Indeed, there was a substantial amount of evidence directed to a sophisticated process now used by the defendant which allows drivers more easy access to the top of a trailer and the use of a mechanism to enable the driver to walk on a platform across the top of the trailer whilst holding on to a travelling arm to which he or she is harnessed as a means of eradicating any foreseeable risk of injury. This procedure involves the driver actually moving to and along the top of the trailer, which is to be contrasted with the position affecting Mr Jarman who was merely required to climb a ladder so as to stand at a position about half way up the trailer. Nevertheless, he was exposed to a risk of falling a significant distance with unfortunately tragic effect in the case of this incident. 16 The starting point for the assessment of an appropriate penalty is the objective seriousness of the offence. I would regard the offence as a serious one involving a requirement to access the side of the trailer at some height using a ladder which although fixed was not of appropriate dimensions and structure to create a safe working environment. 17 The defendant emphasised that it was merely following industry practice and that there had been no known occasion of any undue incident over a period of at least 30 years. Whilst one may sympathise with the defendant who will now be forced to pay a monetary penalty and be convicted of a breach of the Act in circumstances where, on one view, the work practices have not created any difficulty in the past, it is still necessary to have regard to the standard created by the legislature when the Act was enacted. In the last 20 years, there have been significant advances within the community in terms of general commitment to occupational health and safety matters. The use of hard hats, harnesses and other safety equipment in the building industry is now completely standard, a comparatively recent change in industry practice. The same observation may be made of the erection of scaffolding and other devices around any area where building workers are required to work at heights. In a more general sense, the compulsory wearing of helmets by motorcyclists is another instance of changes in community expectations and community standards. The same situation applies generally throughout all of industry and in particular to the circumstances of this defendant and its equipment. Although there may therefore be some basis of sympathy for the position of this defendant, it does not avoid the necessity to characterise this offence objectively as being a serious one. 18 In fixing penalty, I shall have regard to the general deterrent effect that the imposition of a penalty creates in terms of the approach of industry and, to a lesser extent, the specific deterrent effect on this defendant. I make this observation about this defendant because there was substantial evidence concerning its commitment to occupational health and safety matters and the steps taken by it to ensure its compliance with its obligations. 19 There are a number of mitigating factors that apply to the circumstances of these proceedings. The defendant pleaded guilty at the earliest possible opportunity, co-operated fully with the WorkCover Authority in its investigations of the accident and has expressed contrition for the unfortunate circumstances that befell a valued employee. Furthermore, the defendant has had no prior convictions after operating for many years and, on the basis of evidence tendered in the proceedings, has demonstrated itself to be a good corporate citizen. 20 The defendant submitted that it should be entitled to the benefit of an order dismissing the charge under s 10 of the Crimes (Sentencing Procedure) Act 1999. S 10 is in the following terms: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 21 The limited circumstances in which this Court will apply the provisions of s 10 in occupational health and safety prosecutions are well set out in relevant Full Bench authorities. It is not necessary that I refer to them for the purpose of dealing with this matter. I observe that it is mandatory, when considering whether to apply s 10, to have regard to the matters referred to in subsection (3). One of those matters is "the trivial nature of the offence." Having characterised the offence objectively as being of a serious kind, it is impossible to have regard to it as being trivial by nature. Nor, in my opinion, are there any extenuating circumstances or any other matter that would require the exercise of discretion under s 10 of that Act. This submission is rejected. 22 The maximum penalty is $550,000. Having regard to the objective seriousness of the offence, the matters pertaining to deterrence and the circumstances of the accident, which I have referred to, I would assess an appropriate penalty in all the circumstances as being $85,000. Having regard, however, to the other mitigating factors to which I have referred I would fix a penalty in the sum of $55,000. 23 The prosecutor has sought a moiety of the penalty and an order for costs, neither of which was opposed. Orders 24 I make the following orders: 1) the defendant is found guilty of the offence charged and convicted accordingly; 2) the defendant is fined the sum of $55,000 with a moiety to the prosecutor; 3) the defendant is to pay the costs of the prosecution in an amount assessed by the Court in default of agreement. 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.