Industrial Court of New South Wales CITATION: Inspector Constable v Dubel Pty Ltd [2007] NSWIRComm 235 This decision has been amended. Please see the end of the judgment for a list of the amendments. PROSECUTOR Inspector Martin Constable PARTIES: DEFENDANT Dubel Pty Ltd FILE NUMBER(S): IRC 2933 and IRC 2944 of 2007 CORAM: Staff J CATCHWORDS: Occupational health & safety - Prosecution under s 8(1) and s 8(2) of the Occupational Health & Safety Act 2000 - Construction industry - Crane collapsed - Employee suffered minor injuries - General deterrence - Subjective factors - Forty years operating in industry - Good safety record - Offence proven - Prior convictions - Totality - Penalties imposed LEGISLATION CITED: Occupational Health & Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 CASES CITED: Inspector Steven Jones v Belmadar Constructions Pty Ltd [2004] NSWCIMC 17 Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 Pearce v The Queen (1998) 194 CLR 610 WorkCover Authority of New South Wales v Belmadar Constructions Pty Ltd [2000] NSWIRComm 206 HEARING DATES: 8 August 2007 DATE OF JUDGMENT: 17 September 2007 PROSECUTOR Mr D O'Neil of counsel Solicitor: Mr N Correy Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT Ms L M McManus of counsel Solicitor: Mr C Zoppo Sparke Helmore JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 17 September 2007 Matter No IRC 2933 of 2006 INSPECTOR MARTIN CONSTABLE v DUBEL PTY LTD Prosecution under section 8(1) of the Occupational Health & Safety Act 2000 Matter No IRC 2934 of 2006 INSPECTOR MARTIN CONSTABLE v DUBEL PTY LTD Prosecution under section 8(2) of the Occupational Health & Safety Act 2000 JUDGMENT [2007] NSWIRComm 235 1 Dubel Pty Ltd ("the defendant"), formerly known as Belmadar Constructions Pty Ltd ("Belmadar"), is a construction company which was engaged to carry out work on the Jindabyne Dam Wall situated on Kosciuskzo Road, Jindabyne, in the State of New South Wales ("the site"). 2 Mr Francis Christopher Murphy was an employee of the defendant. At about midday on 16 April 2005, Mr Murphy was operating an 82-tonne mobile crane which was being used to lift an Elevated Work Platform ("EWP"). Whilst the EWP was being lifted, the crane became unstable and toppled over, causing minor injuries to Mr Murphy, who was trapped in the crushed cabin of the crane for in excess of one hour prior to being freed. 3 Mr Garrith John Gravenor was acting as a dogman when the boom of the crane toppled into the intake channel of the Jindabyne Dam Project, exposing him to risk from the falling EWP and crane boom. Mr Gravenor, who was not employed by the defendant, was able to avoid injury from the falling objects by going into the tunnel in the intake channel. 4 The defendant was charged with offences under s 8(1) and s 8(2) of the Occupational Health & Safety Act 2000 ("the Act"). This section provides: 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. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 5 The s 8(1) offence with which the defendant was charged was that: On 16 April 2005 at the Jindabyne Dam Project situated at Kosciuskzo Road, Jindabyne in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of its employees, in particular, Francis Christopher Murphy. The particulars of the charge are: 1. At all material times the defendant was an employer. 2. At all material times the defendant employed [Mr Murphy] the worker as a crane driver. 3. At about midday on 16 April 2005 the worker was operating an 82-tonne mobile crane which was being used to lift a JLG600SC Boom Lift ('elevated work platform') into the intake channel of the Jindabyne Dam Project. 4. Whilst the elevated work platform was being lifted and ferried into position for lowering into the intake channel the crane became unstable and toppled over and the load and the boom of the crane fell down into the intake channel. 5. The worker sustained minor injuries only but was trapped in the crushed cabin of the crane for in excess of one hour prior to being freed by SES officers. 6. The defendant failed to ensure that the systems of work and the working environment of its employees was safe and without risk to health in that: (a) It failed to conduct a proper risk assessment in respect of the work of lifting the elevated work platform into the intake channel prior to the lift being performed as required by clause 10 of the OH&S Regulation 2001 and its own documented OH&S management plan. (b) There was no safe work method procedure formulated subsequent to a proper risk assessment being conducted. (c) The lift was conducted without the weight of the load to be lifted being accurately determined to be within the capacity of the crane in the condition in which it was set up. 7. The defendant failed to provide such information, training, instruction and supervision in relation to the work of lifting the elevated work platform into the intake channel using the crane such as was necessary to ensure that such work could be conducted without risk to the health and safety of its employees including the worker. 6 The s 8(2) offence with which the defendant was charged was that: On 16 April 2005, at the Jindabyne Dam Project situated at Kosciuskzo Road, Jindabyne in the State of New South Wales, the defendant failed to ensure that people other than its employees, including Mr Garrith John Gravenor were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at its place of work. The particulars of the charge are: 1. At all material times the defendant was an employer. 2. At about midday on 16 April 2005 Francis Christopher Murphy ('the crane driver') was operating an 82-tonne mobile crane which was being used to lift a JLG600SC Boom Lift ('elevated work platform') into the intake channel of the Jindabyne Dam Project. 3. Whilst the elevated work platform was being lifted and ferried into position for lowering into the intake channel the crane became unstable and toppled over and the load and the boom of the crane fell down into the intake channel. 4. The crane driver was trapped in the crushed cabin of the crane for in excess of one hour prior to being freed by SES officers. 5. The worker was situated in the intake channel below acting as dogman to direct and receive the load, that is, the elevated work platform, into the correct position in the channel when it and the boom of the crane toppled into the channel. The worker, however, was able to avoid injury from the falling objects by going into the tunnel in the intake channel. The worker was nevertheless exposed to risk from the falling elevated work platform and crane boom. 6. The incident occurred as a consequence of work system failures on the part of the defendant in that: (a) It failed to conduct a proper risk assessment in respect of the work of lifting the elevated work platform into the intake channel prior to the lift being performed as required by clause 10 of the OH&S Regulation 2001 and its own documented OH&S management plan. (b) There was no safe work method procedure formulated subsequent to a proper risk assessment being conducted. (c) The lift was conducted without the weight of the load to be lifted being accurately determined to be within the capacity of the crane in the condition in which it was set up. 7. The defendant failed to provide such information, training, instruction and supervision in relation to the work of lifting the elevated work platform into the intake channel using the crane such as was necessary to ensure that such work could be conducted without risk to the health and safety of its employees including the worker. 7 The defendant pleaded guilty to each of the charges. 8 Mr D O'Neil of counsel, who appeared for the prosecutor, tendered the following evidence in the sentencing proceedings: 1. An agreed statement of facts in respect of each prosecution. 2. A factual inspection report by Inspector Martin Constable dated 6 May 2005. 3. 44 coloured photographs taken by Inspector Constable on 18 and 19 April 2005 and 4 May 2005 showing the construction work on the Jindabyne Dam wall; the crushed cabin of the crane; the crane boom in the inlet channel; the outrigger legs and steel pads for the crane; the identification plate; operator's instructions and warnings on the side of the JLG boom lift; the tie down points and lift points on the crane and the crane recovery operation. 4. Defendant's Occupational Health and Safety Management Plan: Jindabyne Dam Spillway Upgrade and Outlet Works dated 1 March 2005. 5. Australian Standard 2550.1 - 2002 Cranes, hoists and winches - Safe Use. Part 1: general requirements. 6. Recommendations from defendants' internal investigation (undated). 7. Belmadar Constructions Pty Ltd: General crane lifting plan revision dated 20 April 2005. 8. Belmadar Constructions Pty Ltd - Jindabyne Dam upgrade: Mobile plant which may be lifted by cranes dated 6 July 2005. 8. Defendant's record of prior convictions which showed two prior convictions. 9 The agreed statement of facts (excluding formal parts) stated: 8. Work in respect of the contract at the site commenced in or around June 2004. 9. Prior to 10 April 2005 the defendant hired a P&HTC1090 crane, serial number 699 ("the crane") from Melrose Cranes & Rigging Pty Ltd for use in the Jindabyne Dam Project. 10. Between the 10th and 15th of April 2005 Ennio La Cioppa, an employee of Melrose Cranes undertook the rigging and erection of the crane at the site. La Cioppa was assisted by [Mr Murphy] the Worker and other employees of the defendant in the setting up of the crane. La Cioppa tested the Robway Load Indication System and found it to be accurate. 11. At all material times the crane was set up on a level pad approximately 10 metres from the side and at the top of the inlet channel and parallel with the access road. The ground was levelled by bringing in dirt using an excavator which was track rolled. Steel plates 2.5x1.5 metres and 20mm thick were then placed on the ground and one layer of hardwood timbers placed on top of the steel plates. The outriggers to the crane were then placed on top of the timbers. 12. The set up of the crane included: (a) The boom length was 52 metres (b) There were two falls of rope on the hook (c) There was a 6 ton bumper weight and a rear counter weight on the tope deck of 11.6 tons (d) The outriggers were fully extended with cam locks in position 13. At all material times the crane, supplied by Melrose, was provided with an operator's manual and appropriate load charts for the crane as it was configured as set up by Melrose at the site. 14. At all material times the crane had its own inbuilt load indication system, which was known as a Robway Load Indication System. This system was provided to indicate to the operator of the crane the weight of items to be lifted. 15. During the period whilst the crane was being set up by La Cioppa, the worker was provided with some instruction by La Cioppa in relation to the operation of the crane and in relation to the use and operation of the Robway Load Indication System. La Cioppa spent one day instructing the worker as the worker drove the crane after it was set up. 16. Murphy's training in relation to the Robway System was limited to being with La Cioppa when La Cioppa was setting up the Robway Load Indication System. 17. Murphy had not used the Robway Load Indication System before. 18. La Cioppa completed the set up of the crane and the instruction of the worker between the period 10 to 15 April 2005 and was not present at the site on 16 April 2005. 19. The crane as set up was used on Friday 15 April 2005 in lifting sheet piles out of the intake channel. On Saturday 16 April 2005 the crane was being operated by the worker with the assistance of the foreman, John Weatherill, acting as dogman, as well as another dogman who was employed by Snowy Constructions Plumbing & Civil Pty Ltd, namely Garrith John Gravenor, known as Gary Gravenor. 20. At a pre-start meeting on the morning of 16 April 2005, Weatherill instructed the worker that an Elevated Work Platform ("EWP") identified as a JLGSC Boom Lift, was to be lifted down and positioned in the intake channel at the site ("relocation lift"). 21. Mr Weatherill had 25 years experience working with cranes in the construction industry including experience as dogman. Weatherill did not participate in assessing the load. 22. Murphy had worked in the engineering industry since 1986 and subsequently transferred to the construction industry. Whilst working within the construction industry he worked with cranes and became a certified crane operator in 1997. He then worked as a crane driver, dogman and a rigger under supervision for about three years. 23. Stewart Bevan was the OHS officer on the site. He has an Associate Diploma in OHS, was a Category 4 OHS trainer and assessor and was a WorkCover accredited trainer in consultation, construction induction, manual handling, workplace substances, managers and supervisors risk assessment and had worked as an OHS advisor in the mining and construction industry since 1996. 24. Bevan attended the intake channel at about 11.00am for about 15 minutes. 25. Bevan asked Murphy about the weight of the lift, the maximum radius available and the maximum radius he had to swing the load. 26. Bevan then inspected the crane set up being, the outriggers, the pads and ground conditions, and he assessed those to be satisfactory. Bevan had no role to play in determining the weight on the boom lift. 27. At all material times the EWP had an identification plate attached to it which included information on its gross weight and the lifting points and lifting instructions. This information was also available in the operator's manual for the EWP which was in the EWP. 28. Prior to carrying out the relocation of the EWP, the worker used the crane to carry out a test lift of it. For the purposes of the test lift the EWP was lifted between half a metre to two metres off the ground. During this test lift the worker noted the Robway Load Indication System indicated the weight of the EWP to be floating between 3.8 and 4.1 tonne. 29. The worker determined the weight of the EWP for the purpose of the lift and relocation to be 4.1 tonnes. 30. Once the Robway Load Indication System had been correctly set up by Mr La Cioppa it did not require any further input from the operator of the crane when using the crane to lift unless there was a change of the set up of the crane. No such change occurred between the commissioning of the crane at the site and the lift of the EWP. 31. At all material times on and prior to the actual relocation lift neither the foreman nor the crane driver nor any other employees of the defendant associated with the conduct of the lift referred to the identification plate on the EWP or to the information in the manual within the EWP in order to check its weight. The load of the EWP was assessed at 4.1 tonne when the actual weight was 10.2 tonne. 32. Mr Weatherill had told Murphy and Thomas Knowles that there was a chart on the EWP. Murphy and Knowles informed Weatherill they could not find the chart. Weatherill noticed that the safety officer was there at the time. Weatherill was called away. Weatherill thought the others had worked it out." 33. At all material times on and prior to the lift for the purpose of the relocation of the EWP, neither the foreman nor the crane driver nor any other employees or contractors of the defendant associated with the conduct of the lift referred to the operator's manual in determining where to locate the chain slings onto the EWP for the purpose of the lift. 34. At all material times the EWP had identified lifting points attached to it as distinct from other points which were signified as hold down or tie down points. 35. Prior to performing the relocation lift of the EWP, Weatherill advised the worker to hook up a tag line and lifting chains to it. 36. The worker incorrectly connected two of the four chain slings used for the lift onto the hold down/tie down points of the EWP instead of the correct lifting points. The lift was carried out when the crane attachments to the load were not connected to the designated lifting points on the EWP, in accordance with the manufacturer's stipulated requirements. 37. At all material times on 16 April 2005, Weatherill acting as dogman was situated at the top south-east corner of the intake channel and the other dogman, Gravenor, was in the intake channel at the bottom acting as dogman to receive the EWP. 38. Gravenor's experience as a dogman was limited to one day of training on 15 April 2005. He had been working for the Jindabyne project for 5 months employed as a labourer. 39. During the relocation lift Weatherill, Murphy and Gravenor communicated by hand held radio and hand signals. 40. At approximately midday on 16 April 2005 the lift to relocate the EWP was undertaken. The lift was calculated upon a weight of 4.1 tonnes and the crane was configured to lift this weight safely. However as the load was actually 10.2 tonnes the crane could not safely lift at that radius. The worker operated the crane and slewed the EWP out over the channel and then proceeded to jib it down and during this process the crane became unstable and the load started to shift, at which point the worker tried to lower the boom of the crane but it was too late and the crane fell onto its side and the EWP and boom of the crane fell down into the intake channel. 41. When the crane cabin toppled the worker was trapped within it and remained trapped for approximately one hour until he was freed by emergency services. The worker sustained minor scratches and bruising in the incident. 42. At the time the EWP and crane boom fell into the intake channel, Gravenor was in proximity below it. Weatherill yelled out to Gravenor and Gravenor ran into a tunnel in the intake channel to avoid the falling objects and sustained no injuries. 43. At all material times on and prior to the lift of the EWP being conducted to relocate it, the defendant had in place an OH&S management plan which stipulated requirements in relation to such work. The lift was performed without complying with such requirements. 44. The OH&S Management Plan required at paragraph 3.5.8.2 that the lifting and handling plant including cranes, concrete boom pumps, elevated work platforms, etc. shall be inspected, serviced, maintained and used in accordance with the following publications, as applicable: · WorkCover Guide 2001 – Plant · AS 1418.1 Cranes – General Requirements · AS 2550.1 Cranes – Safe Use – General Requirements 45. Specifically AS 2550.1 at 7.3.2 required that the operating and emergency controls be given a visual and functional test at the commencement of each work shift. 46. No JSA (or safe work method) document was prepared in relation to the relocation lift. 47. No one conducted a proper risk assessment in relation to the relocation lift. 48. Following the incident the Defendant changed its systems of work regarding lifting of plant and materials. It put in place a system where two dogmen were used on each lift. In addition, no trainees were allowed to substitute for a dogman. A crane lift plan was implemented in all instances. All plant which was to be lifted had to be listed on a register with a clear indication of the plant's weight. All cranes were inspected monthly and the load indication system had to be tested with a known weight. 49. After the incident the defendant put in place a document entitled 'Crane Monthly Inspection Checklist'. 50. The Defendant entered its plea at the earliest opportunity following the amendment of the charge by the Prosecutor. 51. The Defendant cooperated with the Prosecutor during the course of the investigation of this matter. 10 Ms L M McManus of counsel, who appeared for the defendant, read affidavits of Mr Dominic Marrocco and Mr Mark Madani. Mr Marrocco is one of the three Managing Directors of the defendant and has been a Director of the defendant and its predecessor Belmandar since 1971. 11 Mr Marrocco set out the history of the defendant and its experience in civil construction and engineering in Australia since 1964. He annexed a brochure which was prepared to mark the 40th Anniversary of the defendant and its predecessor in 2004. The brochure recorded that the defendant and Belmadar had been involved in public sector infrastructure works in New South Wales and Queensland, including the building of a number of coal fired power stations, constructing sewage treatment plants, major roadworks projects, carparks, bus and taxi shelters, the Overpass at Homebush Bay for the Sydney Olympic Games, upgrading George Street and the Devonshire Street Pedestrian Tunnel. Besides civil engineering projects, the defendant and prior to that, Belmandar, completed many prestigious building projects ranging from schools, law courts, research laboratories, defence establishments and community and recreational facilities. Various Awards which were received by the defendant for involvement in construction projects were set out and copies of the Awards annexed. 12 Mr Marrocco stated that Belmadar was committed to securing workplace safety. It had developed a comprehensive Integrated Management System ("IMS") that incorporated occupational health and safety and rehabilitation ("OHSR"), environmental, industrial relations, training and quality management. This system was developed in accordance with international standards including: (a) AS 4801 - 2000 Occupational Health and Safety Management Systems; (b) AS 14001 - Environmental Management Systems; and (c) ISO 9001:2000 - Quality Management Systems. 13 Belmadar was accredited for its occupational health and safety system in a range of areas and achieved Best Practice Pre-Qualification from the Department of Commerce. This pre-qualification allowed Belmadar to tender and undertake substantial public infrastructure projects (projects over $40 million in value) for Government Departments, including the Department of Commerce; Roads and Traffic Authority; Sydney Water; Railcorp; Sydney Catchment Authority, Transgrid; Hunter Water, and the Department of Housing. 14 Mr Marrocco stated that pre-qualification is only awarded to companies that demonstrate excellence in construction and best practice in project management including the highest standards in occupational health management, performance, technical knowledge and competency. Belmadar was a longstanding member of the Civil Contractors Federation NSW ("CCF") and the Master Builders Association ("MBA") and other similar organisations who were regularly engaged to provide occupational health and safety services including site auditing, training, expert advice and assistance in improving occupational health and safety management. 15 References from Mr Craig Long, Chief Executive Officer of the CCF and Brian Seidler of the MBA were annexed. Mr Seidler confirmed the defendant's involvement in various committees where occupational health and safety issues in the construction industry were discussed on frequent occasions and that the defendant had utilised the services of the MBA to conduct unannounced site inspections to review safety performance. Site audits of the defendant's operations at the Jindabyne Project were conducted on a regular basis. Similar comments were made by Mr Long in his reference. 16 Mr Marrocco stated that in respect of the Jindabyne Project, to ensure that the construction operation was carried out in compliance with head contract conditions and statutory requirements, he: (a) employed a dedicated safety officer for the Jindabyne project to work with staff and contractors to ensure safety at the workplace; (b) engaged the CCF, the MBA and other organisations to undertake auditing (both announced and unannounced) of the project to ensure that the systems in place were being followed and that the workplace was safe; (c) conducted regular inspections of the project which included inspecting sites to ensure that safety systems were being implemented; and (d) took action where unsafe practices were noted. Examples were given of disciplinary action taken at other projects where unsafe practices were noted. 17 Mr Marrocco attended the Jindabyne site shortly after the incident and addressed employees and reiterated the importance of safety and compliance with systems and procedures. He made it clear that disciplinary action would follow where a person did not comply with safety systems and procedures. In the weeks following the incident, he continued to inspect the site to ensure that systems and procedures were being followed. 18 Mr Marrocco stated that the defendant is no longer in the construction industry. Mr Marrocco is aged 69 years and his partners, 70 and 71 years of age. At this stage, they do not have any plans to return to the construction industry following the sale of Belmadar. He stated that the defendant has no employees, except for administrative staff who are employed on a casual basis and no plans to employ any new employees in the near future. Mr Marrocco stated that in light of the defendant and Belmadar's history and their commitment to the highest standards of workplace safety including the IMS in place, the incident that occurred at Jindabyne was out of character with the proactive and dedicated approach that Belmadar and its employees took with respect to health and safety at its workplaces. 19 Mr Madani was employed by Belmadar in the role of Quality Manger from 1991 to November 2005. Mr Madani described the policies, procedures and systems developed by Belmadar to ensure that it complied with its obligations as an employer and satisfied pre-tender qualifications to obtain Government engineering projects. In this respect, his evidence was similar to that given by Mr Marrocco. Mr Madani also set out in extensive detail the IMS and corporate occupational health, safety and rehabilitation management systems procedures in operation at Belmadar. 20 The OHSR Management System was divided into 23 key topics, developed to cover discrete areas of occupational health and safety management as it applies to the construction industry. The procedures were developed in compliance with the NSW Government Guidelines on Workplace Occupational Health and Safety Management. A copy of the procedures were annexed to his affidavit together with a copy of Belmadar's Safety and Rehabilitation, Quality and Environmental Policy Statements in force at the time of the incident. The Corporate Quality Management System Procedures formed a key part of the overall IMS. They provided mechanisms for ensuring that the Occupational Health and Safety and Rehabilitation Management System was implemented across Belmadar's activities. The Quality Management System Procedures were developed to plan, document, monitor, assess, audit and verify the effectiveness of Belmadar's: (a) OHSR Policies; (b) OHSR Management System Procedures; (c) Environmental Policies and Management System Procedures; (d) Industrial Relations Program; (e) Best Practice Program; and (f) Training and Skills Enhancement Program. 21 Mr Madani stated that the OHSR Management, the Quality Management System was designed to: (a) Plan, establish and implement the requirements of the OHSR Management system; (b) Distribute the latest data and information to the workforce; (c) Provide all necessary induction and training for tasks and projects; (d) Plan, carry out and document inspection, testing and verification activities to ensure compliance with OHS statutory requirements and project contractual requirements; (e) Identify and improve any shortcomings noted in the OHSR Management System; (f) Undertake regular internal audits of the OHSR Management System to determine levels of implementation and compliance and the effectiveness of the system in achieving set OHS outcomes; and (g) Review of the OHSR Management System to ensure compliance with applicable legislation and to recommend corrective actions in areas requiring improvement. 22 The Quality Manual required each Belmadar construction site or project to prepare and implement the following measures to ensure compliance with occupational health and safety at the project level: (a) A Project Safety Management Plan that included safety rules and conditions that the workforce must follow on site: (b) Systems for ensuring compliance with OHS Act, OHS Regulation and relevant Code of Practice requirements; (c) Measures for ensuring the project workforce is not exposed to uncontrolled high risk hazards; (d) Systems for preventing dangerous occurrences and incidents; (e) Undertaking regular hazard identification and risk assessments to identify, assess, eliminate or control all risks arising on the project; (f) Establishing a comprehensive induction program to ensure the workforce understands the OHS standards and systems applicable to the project, including SWMS and Site Safety Rules; (g) Preparation of inspection and testing regimes for plant, equipment and employee competencies and accreditations; (h) Monitoring programs to verify that all construction work on the project was being undertaken in a safe and controlled manner; (i) Workplace inspection procedures, incorporating daily pre-start checks, weekly toolbox talks and weekly and monthly site safety and environment inspections; (j) Ensuring each construction activity was carefully planned and assessed prior to commencement, again, including the preparation of SWMS and JSEAs as required; (k) Promoting and providing regular OHS consultation through elected OHS representatives, OHS committees and workplace talks to promote workforce OHS awareness and to ensure OHS concerns are discussed and the workforce had the latest information on OHS risk control measures. 23 Mr Madani then described how Belmadar's Project Management Systems had been implemented at the Jindabyne site. He annexed to his affidavit copies of : (a) the Project Management Plan; (b) the Project OHS&R Management Plan; (c) the Project Quality Assurance Plan; and (d) the Project Emergency Response Plan. 24 Mr Madani stated that a comprehensive Occupational Health and Safety and Rehabilitation Management Plan was prepared and implemented for the Jindabyne Project following careful analysis of the tasks, scope of works, site layout characteristics and plant to be used during that Project. In accordance with the IMS, all persons on Belmadar's Project sites were required to attend an induction prior to commencing work on the Project. The induction covers the substance of the project specific OHSR Environmental and Quality Management Plans. A copy of the Project Induction Plan for the Jindabyne Project was annexed to Mr Madani's affidavit. Each of the plans in operation at the Jindabyne Project site required regular risk assessments to be conducted to ensure that risks to workplace safety were identified, assessed and eliminated, or subject to measures that controlled the risk. 25 Mr Madani stated that in addition to the plans and systems already outlined, the OHSR Management Plans set out further occupational health and safety conditions for the use of cranes during the Jindabyne Project. These included careful attention to: (a) Qualification of crane operators; (b) Certification of all cranes on site and records of recent inspections and tests of the crane and its lifting equipment; (c) Weather conditions and proximity to overhead power lines during a lift; (d) General conditions for crane use and planning a lift to ensure, when practical, that: (1) Lines of sight were maintained between the operator and load spotter and radio communication is provided; (2) Areas within the lift radius were barricaded to prevent unauthorised access; (3) No person was to ride on a load during a lift; (4) Observe strict safety requirements when lifting persons in approved platforms; (5) Ensuring SWL of the crane and its lifting equipment was not exceeded; and (6) All cranes and operators were certified in accordance with legislative requirements prior to use on site. 26 Extracts from the OHSR Management Plan for the Jindabyne Project that set out additional requirements for the use of cranes and lifting equipment were annexed to the affidavit. The OHSR Plan also requires consultation on a daily and weekly basis. An OHSR committee was also required to be established and a spokesperson for the workforce elected. Regular internal auditing of the Project to determine the level of compliance was also required. Mr Madani described the Project Audit Program and stated that the first internal audit for the Jindabyne Project was scheduled for 1 September 2004 with audits occurring every three months until January 2006. External audit services offered by the MBA and CCF were also utilised. 27 Mr Madani stated that Belmadar took its occupational health and safety obligations very seriously and was committed to providing a safe workplace for employees, contractors and visitors to Belmadar's Projects. Its commitment was demonstrated by the development and implementation of sophisticated IMS that drew together all aspects of the business, including occupational health and safety, environmental and quality management. The importance of a safe workplace and applying safe working procedures was a cornerstone of this IMS, which was implemented, tailored to and detailed at the project level via a customised range of product documents, including the PMP and Project OHSR Management Plan. 28 Mr Madani stated that the PMP in turn informed the particular risk control measures required on site and set out specific OHS controls, such as safety rules, SWMS, JSEAs and requirements for training, qualification of the project workforce and technical procedures for inspection, testing and certification of plant. Belmadar's IMS and Project OHS Performance during its long involvement with the construction and engineering industry was repeatedly assessed and certified by a range of external and internal professions and Government organisations. 29 Mr Madani said that Belmadar was understandably proud of its OHS record. The incident on the Jindabyne Project was an uncharacteristic failure of otherwise sound procedures and systems for ensuring workplace safety and OHS management. Relevant Principles 30 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: [I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: ... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]). [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: [B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Consideration 31 I will commence the consideration of penalty by having regard to the principles stated above and examining the nature and quality of the offence. The risk of a crane overbalancing if the weight of the load is not properly assessed is obvious and gives rise to a serious risk of injury to the crane driver and workers on the ground. The crane had its own inbuilt load indication system which was known as a Robway Load Indication System. This system was provided to indicate to the operator of the crane the weight of items to be lifted. Although Mr Murphy was an experienced crane driver, he received only one day's instruction driving the crane from the supplier of the crane. Mr Murphy had not previously used the Robway System. Neither the foreman, nor the crane driver or any other employee of the defendant associated with the lift undertaken by the crane referred to an identification plate attached to the EWP which included information on its gross weight. The information was also available in the operation manual located within the EWP. The load of the EWP was assessed at 4.1 tonne when the actual weight was 10.2 tonne. There was no evidence as to why there was no reference to the documentation to independently establish the weight of the lift. 32 Clearly, if the workers have been properly instructed and trained, they could have identified the correct weight of the EWP. The lack of information and training highlights the failure of the defendant: see Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [61]. In addition, there was no proper risk assessment undertaken prior to the work being carried out. This was despite the OHS management plan for the Jindabyne Dam Spillway upgrade and outlet works providing at 3.2.1C under the heading Hazard Identification and Risk Assessment: Hazards associated with each construction activity or process will be identified and assessed using the Risk Assessment Tools included in the Belmadar Integrated Management System. Based on the risks assessed for each hazard, hazard control measures must be established which reduce the risk exposure score to an acceptable level. Controls will be developed and incorporated into the Safe Work Method Statements ("SWMS"). 33 The Australian Standard, 2550.1 - 2002 Cranes, hoists and winches - Safe use Part 1: general requirements provides at 6.1.3 under the heading Operating Instructions as follows: The instructions shall include, as a minimum, the following: (a) Pre-operational inspections shall be carried out by the designated person at the beginning of each working shift in accordance with the pre-operational check list. (b) Where pre-operational inspections reveal a safety malfunction or potential risk, the crane shall not be put in service until the risk has been assessed by a competent person and the appropriate action recorded and carried out. (c) All malfunctions and hazards shall be reported and properly recorded for assessment by a competent person and acted upon as appropriate. (d) Cranes that are not in a safe condition shall be removed immediately from service and shall remain out of service until repaired. (e) The operational area shall be checked for hazards prior to and during each work shift. (f) For remotely operated cranes, the load shall be constantly in view of either the operator or a competent person who shall be able to relay the position of the load to the operator at all times. (g) Unnecessary operation of the crane motion limits shall be avoided. (h) Cranes shall be left in a safe condition. Before the operator leaves a cabin-operated crane, the crane shall be positioned at the designated parking place and all the crane motions disabled against unauthorised operation. ... 34 Section 7, Maintenance, Inspection and Repair of the Standard provides at 7.3.2 as follows: Pre-operation inspection Before the commencement of each work shift, the crane shall be given a visual inspection and functional test. The visual and functional tests may be carried out by the operator. The inspection and test should include the following: (a) Operating and emergency controls. (b) Brakes. (c) Safety switches and interlocks. (d) Structure. (e) Wire ropes to ensure they are on the drum and correctly reeved on the sheave. Any personal protective equipment should also be inspected for correct function. All safety-related problems shall be rectified prior to using a crane and recorded at an appropriate time. 35 Although the defendant had an occupational health and safety management plan which stipulated requirements in relation to such work, there was a significant breakdown in the system as no proper assessment of the risk occurred. There was a failure to carry out a proper test lift. Although a test lift was conducted, it only involved a lift of half a metre to two metres. It did not involve the full swing out of the crane. It was the swing out of the crane's boom under an incorrectly weighed load which created the risk. 36 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. Although there were systems of work in place, there was a failure to adhere to these systems. There was no safe work method document prepared in relation to the lift. Following the incident, the defendant changed its system of work regarding the lifting of plant and materials. It put in place a system where two dogmen were used on each lift. In addition, no trainees were allowed to substitute for a dogman. A crane lift plan was implemented in all instances. All plant which had to be lifted had to be listed on a register with a clear indication of the plant's weight. In addition, the defendant reinforced that all cranes were inspected monthly and the load indication system had to be tested with a known weight. 37 These steps illustrate that there were simple and straightforward remedial steps available which indicate the extent to which the foreseeability of the risk was readily identifiable. 38 Whilst the injuries to Mr Murphy could not be described as serious, it seems to me that they could have been worse and I am bound to take this into account and the fact that Mr Gravenor had what could only be described as a lucky escape in determining the level of seriousness of the offence. Upon proper analysis, I therefore assess the offence to be objectively serious and will consider penalty on that basis. 39 As to general deterrence, I consider it is appropriate to draw attention to the need for employers and contractors operating in the construction industry to be constantly vigilant of the need to ensure that workers are not exposed to risks to their health and safety in respect of the operation of cranes. To state the obvious a crane is a machine designed to lift heavy weights. If the weight of a load is not accurately determined, the essential and critical basis of the crane's operation may potentially fail and give rise to a risk to health and safety. 40 In Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 at [25], Boland J wrote: The construction industry is a notoriously dangerous industry and prosecutions in that industry under the Occupational Health and Safety Act, … continue to constitute a significant proportion of the cases coming before the Commission in Court Session. There is a strong case for including an element in the penalty in this case for general deterrence. It is therefore appropriate that I give weight to the need for general deterrence. 41 In relation to specific deterrence, I note that the defendant is no longer operating in the construction industry, although it still employs some casual administrative staff. To disregard specific deterrence as was submitted by Ms McManus for the defendant, would be to fall into error. I accept this is not a case where it is necessary to impose some additional specific punishment aimed at deterring the defendant from further offending against the Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues. The defendant has a good record in a large and dangerous industry. However, as the defendant is still an employer, a small element of the penalty is in consideration for the need for specific deterrence. 42 The subjective considerations include an early plea of guilty for which I grant a discount of 25 per cent, co-operation with the WorkCover Authority in its investigation of the accident, the remedial measures implemented by the defendant following the accident, the defendant's good corporate citizenship and the defendant's obvious strong commitment to occupational health and safety. I accept that the defendant had an impressive range of systems in place which were not just paper systems but implemented by the defendant. A failure occurred with the systems implemented by the defendant in that no one took steps to ensure the correct weight of the EWP was identified. 43 The maximum penalty in this case is $825,000, given the defendant's prior convictions. The prosecutor referred the Court to two decisions dealing with the defendants' prior convictions: WorkCover Authority of New South Wales v Belmadar Constructions Pty Ltd [2000] NSWIRComm 206 and Inspector Steven Jones v Belmadar Constructions Pty Ltd [2004] NSWCIMC 17. 44 In the first of these cases, the defendant, in 2002, was prosecuted under s 16(1) in respect of an incident in 1997 involving the failure of a crane's lifting mechanism which caused a steel beam to fall. This resulted in an employee also falling to the ground and suffering injuries. Peterson J imposed a fine of $45,500. In the second case, the Chief Industrial Magistrate, in 2004, imposed a fine of $27,000 in respect of a prosecution brought under s 16(1). The incident which was the subject of the prosecution related to concrete pumping. There was no safe work method developed or risk assessment undertaken in respect of that work. 45 When the defendant was known as Belmadar Constructions Pty Ltd, it employed up to 400 personnel in civil construction work in New South Wales, Victoria and Queensland. It has operated in a dangerous industry since 1964 and has a good record in this industry. I take these factors into account. 46 I am unable to find an appropriate basis to distinguish between the level of culpability of the defendant in each of the matters. Both employees and non-employees were exposed to the risk of serious injury through the defendant's failure. The offences arise out the same incident, involve the same conduct by the defendant, and have common elements. It is therefore necessary to apply the principle of totality. 47 The approach to the application of the principles of totality is found in the decision of the Full Bench in Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181, which considered the High Court's ruling in Pearce v The Queen (1998) 194 CLR 610. The Full Bench held that: [23] The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflected the totality of the criminality involved. … [29] In an appropriate case, however, it may still be appropriate to impose a single penalty for multiple offences under the Act, but only as the result of the operation of the principle of totality after separate penalties have been assessed for each offence. However, we consider that the preferable course is that separate penalties should be imposed after the principle of totality is applied. … [51] In view of our conclusion that the two offences contained very substantial common elements, it could not be considered that the deduction made by her Honour was appropriate and sufficient. In a case such as this, the totality principle must be applied to ensure that the defendant is not punished more than once for the common elements of the offences and that the resultant penalty is appropriate to the overall criminality of the offences for which the defendant is being sentenced. 48 In determining the penalty to be applied to the defendant, taking into account the total criminality of the offences under s 8(1) and s 8(2) of the Act, I consider the appropriate penalty to be: 1. In matter No IRC 2933 of 2006 - $150,000. 2. In matter No IRC 2934 of 2006 - $150,000. 49 Having regard to the common elements of the two offences, by applying the totality principle and having regard to the overall criminality, I consider the total fine should be reduced to $180,000. 50 Accordingly, the fines to be imposed in relation to each offence are: 1. In matter No IRC 2933 of 2006 - $90,000. 2. In matter No IRC 2934 of 2006 - $90,000. ORDERS 51 The Court makes the following orders: In matter No IRC 2933 of 2006: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence. 3. The defendant is fined an amount of $90,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. In matter No IRC 2934 of 2006: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence. 3. The defendant is fined an amount of $90,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. AMENDMENTS HISTORY: 07/12/2007 - The words "is entered" inserted. - Paragraph(s) 51 10/03/2008 - "Court" replaces "Relations Commission". - Paragraph(s) Cover. 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.