Industrial Court of New South Wales CITATION: Inspector Robins v Hunter Readymixed Concrete Pty Ltd [2010] NSWIRComm 138 PARTIES: Inspector Steven Robins (Prosecutor) Hunter Readymixed Concrete Pty Ltd (Defendant) FILE NUMBER(S): IRC 2001 of 2009 CORAM: Marks J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY – breach of s 8(1) of the Occupational Health and Safety Act 2000 – early guilty plea and appropriate penalty – fatal injury – objective seriousness – moderately serious – remorse and contrition – commitment to occupational health and safety – remedial steps taken since accident – good corporate citizen – general and specific deterrence – no prior convictions – orders made LEGISLATION CITED: Occupational Health and Safety Act 2000 - s 8(1) HEARING DATES: 28 September 2010 DATE OF JUDGMENT: 7 October 2010 Mr P Ginters of counsel (Prosecutor) Solicitor Legal Group LEGAL REPRESENTATIVES: WorkCover Authority of NSW Mr A Moses SC with Mr D Nagle of counsel (Defendant) Solicitor McDonald Johnson Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Thursday 7 October 2010 Matter No IRC 2001 of 2009 Inspector Steven Robins v Hunter Readymixed Concrete Pty Ltd Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2010] NSWIRComm 138 1 The defendant, Hunter Readymixed Concrete Pty Ltd, has been charged by the prosecutor, Inspector Steven Robins of the WorkCover Authority of New South Wales, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). Section 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. 2 The proceedings are constituted by a further amended application for order which was filed in Court during the course of the sentence hearing on 28 September 2010. The defendant is charged that being an employer, on 16 February 2008 at 8 Nevin Close, Gateshead in the State of New South Wales ("the premises"), (it) FAILED TO ensure, by its acts or omissions as particularised below, the health, safety and welfare at work of all of its employees, and in particular Todd Ashley Smyth ("Mr Smyth"), contrary to section 8 (1) of the Occupational Health and Safety Act 2000. 3 The particulars provided included the particulars of the risk and the particulars of the acts or omissions asserted against the defendant. They were in the following terms: The particulars of the risk are that: (a) The health and safety of the defendant's employees, and in particular Mr Smyth, were put at risk of injury by crushing or entrapment from exposure to an unguarded nip point on concrete agitator trucks. The particulars of the acts or omissions in failing to eliminate that risk are: (b) The defendant failed to ensure that plant provided for use by its employees, and in particular Mr Smyth, at the premises, namely a Mack concrete truck fitted with a Cesco Davcron Engineering agitator assembly registration AQ 86 XG ("the plant"), was safe and without risk to health in that the defendant failed to ensure that the plant was adequately guarded, and in particular: i. The defendant failed to ensure that the plant was fitted with a barrel safety guard at the nip point located between the gob hopper and agitator bowl; ii. The defendant failed to ensure that the barrel safety guard originally fitted upon the plant at the nip point located between the gob hopper and agitator bowl was not removed. (c) The defendant failed to provide and maintain a system of work with respect to the cleaning of concrete agitators trucks, and in particular the plant, that was safe and without risk to health, in that it failed to undertake measures as follows: i. Ensuring that a written safe work procedure for cleaning concrete agitator trucks, and in particular the plant, was developed and implemented in consultation with employees; ii. Ensuring that the agitator bowl of concrete agitators trucks, and in particular the plant, was isolated prior to employees, and in particular Mr Smyth, being permitted to undertake cleaning work on and in the vicinity of the gob hopper and the entry point to the agitator bowl; iii. Ensuring that employees, and in particular Mr Smyth, maintained safe working distances from concrete agitator trucks', and in particular the plant's, assembly whilst undertaking cleaning work on and in the vicinity of the gob hopper and the entry point to the agitator bowl. (d) The defendant failed to conduct an adequate risk assessment with respect to the concrete agitator trucks, and in particular the plant, in that: i. the defendant failed to identify the risk of injury arising from the lack of guarding of the nip point located between the gob hopper and agitator bowl of concrete agitator trucks, and in particular the plant, and determine how the risk could be eliminated or controlled. (e) The defendant failed to provide such information, instruction and training as was necessary with respect to the guarding of concrete agitators trucks, and in particular the plant, in that it failed to undertake measures as follows: i. Ensuring that employees, and in particular Mr Smyth, were provided with information and training in relation to the nip point located between the gob hopper and agitator bowl; ii. Ensuring that employees, and in particular Mr Smyth, were informed that barrel safety guards must be located at the nip point located between the gob hopper and agitator bowl; iii. Ensuring that employees, and in particular Mr Smyth, were instructed not to remove barrel safety guards that were installed at the nip point located between the gob hopper and agitator bowl; iv. Ensuring that employees, and in particular Mr Smyth, were informed of the hazards associated with removing barrel safety guards that were installed at the nip point located between the gob hopper and agitator bowl, and in particular the risk of crush injuries or entrapment. (f) The defendant failed to provide such information, instruction and training as was necessary in relation to the cleaning of concrete agitators trucks, and in particular the plant, in that it failed to undertake measures as follows: i. Ensuring that employees, and in particular Mr Smyth, were provided with competency training with respect to the task of cleaning on and in the vicinity of the gob hopper and the entry point to the agitator bowl, and were assessed as competent; ii. Ensuring that employees, and in particular Mr Smyth were informed and instructed to maintain safe working distances from the agitator assembly whilst undertaking the task of cleaning on and in the vicinity of the gob hopper and the entry point to the agitator bowl; ii. Ensuring that employees were instructed to isolate the agitator bowl prior to undertaking cleaning work on and in the vicinity of the gob hopper and the entry point to the agitator bowl; As a result of the defendant's acts and omissions employees, and in particular Mr Smyth, were exposed to the risk referred to at particular (a). Mr Smyth's death was a manifestation of that risk. 4 The defendant had previously entered a plea of guilty to a prior amended application and maintained that plea in connection with the further amendment made at the hearing. Accordingly, this judgment is concerned only with the question of penalty. 5 For the purpose of the hearing an agreed statement of facts became evidence, which was in the following terms: 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 ("the Act") and empowered under section 106(1)(c) of the Act to institute proceedings in this matter. 2. HUNTER READYMIXED CONCRETE PTY LTD [ACN 076 108 695] ("the defendant") is and was at all material times a corporation whose registered address is situated at 313 Charlestown Road, Charlestown in the State of New South Wales. 3. On 23 July 2010, the defendant entered a plea of guilty to an offence under section 8(1) of the Act. Background 4. At all material times the defendant was an employer conducting a business supplying pre-mixed concrete. 5. As at 16 February 2008 the defendant employed approximately 50 people and operated premises at five different locations within the Hunter and Central Coast areas, namely at Gateshead, Warnervale, Thornton, Tea Gardens and Forster. 6. Mr Todd Ashley Smyth commenced employment as a concrete truck driver with the defendant in 2001. His duties included the delivery of pre-mixed concrete to customer sites and maintaining the cleanliness of the truck he drove. 7. At the time of his death Mr Smyth had approximately 10 years experience driving a wide variety of heavy vehicles (including tow trucks, concrete pumps and concrete trucks) with a multitude of various configurations. He had previously been employed by Hymix Concrete, Pioneer Concrete (which is now known as Hanson) and CSR Readymixed. The plant 8. At all material times the defendant owned and operated a fleet of approximately 40 concrete trucks. The fleet comprised of both large concrete agitator trucks and mini-mix trucks. 9. Each truck driver employed by the defendant generally drove a specific truck. In late September or early October 2007, Mr Smyth was allocated a new Mack concrete truck (registration number AQ 86 XG), which was identified as truck "G15". The truck was fitted with an agitator assembly, which was manufactured and supplied by Cesco Davcron Engineering Pty Ltd (serial number DAV2097). 10. The agitator fitted to truck G15 consisted of a large mixing barrel, which turned on rollers. The rollers were supported on an "A-frame" and could turn the mixing barrel both clockwise and anti-clockwise. Fins were positioned inside the mixing barrel, which were designed to draw product either into, or out of the barrel, depending on the direction of travel. 11. A top-filling hopper (known as a gob hopper) was fitted to the supporting A-frame at the centre of the opening into the mixing barrel. When product was placed into the hopper, it slid down into the mixing barrel via a small chute. The chute entered into the barrel between the (rotating) fins. 12. A work platform and ladder were also attached to the side of the A-frame. The work platform was positioned off the side of the A-frame and next to the mixing barrel. 13. At the time of the incident there was no guard fitted to the barrel opening near the ladder platform. The incident 14. At approximately 12.30 pm on 16 February 2008, Mr Smyth sustained fatal crush injuries when his head was caught between the fin of the truck agitator and the side of the gob hopper. The incident occurred at the defendant's Gateshead premises, which is located at 8 Nevin Close Gateshead, New South Wales ("the premises"). 15. There were no eyewitnesses to the actual incident. It would appear that Mr Smyth was in the process of cleaning the agitator assembly of truck G15 at the time of the incident. 16. Mr Smyth was last seen alive by a fellow co-worker, Mr Michael Gallagher (truck driver), at sometime prior to 12.25 pm. Mr Gallagher witnessed Mr Smyth walking from the workshop area up to the top yard of the premises. At approximately 12.25pm Mr Gallagher observed Mr Smyth's truck parked in the top yard. He did not notice Mr Smyth at this time, but observed what he thought was hydraulic oil on the ground and upon Mr Smyth's truck. 17. Between 12.30pm and 12.50pm a number of other workers at the premises also observed Mr Smyth's truck parked in the top yard. Again, none of the workers noticed Mr Smyth during this time, however his truck engine and/or agitator bowl were seen to be running. 18. At approximately 1.15 pm Mr Lorenzo Tassone (concrete batcher) discovered Mr Smyth lying on the ground at the rear of his truck. He had sustained a severe wound on the side of his head and there was a large amount of blood located around his body, as well as at the rear of the truck. 19. A small paint-scraper was located on the ground behind Mr Smyth's body and a hose was hanging over the top of the discharge chute in an unsecured position. 20. Shortly after Mr Smyth's body was discovered by Mr Tassone, Mr Adam Taylor (truck driver) and Mr Michael Osbourne (truck driver) attended to Mr Smyth and attempted to render assistance to him. Paramedics arrived at the premises shortly after and pronounced Mr Smyth dead on arrival. 21. It would appear that whilst Mr Smyth was in the process of cleaning his truck he climbed the rear of the truck to clean the agitator. Furthermore, it would appear that rather than utilising the purpose built ladder/access platform, Mr Smyth climbed the concrete chute onto the gob hopper A-frame and then attempted to access the unguarded space between the gob hopper and the agitator bowl, whilst the bowl was turning. 22. The method employed by Mr Smyth to clean the truck was not sanctioned by the defendant. Neither Mr Smyth nor any other employees of the defendant were ever instructed to stand in the discharge chute to clean the fins. 23. It is not clear why Mr Smyth attempted to access the space between the gob hopper and the agitator bowl. A number of Mr Smyth's co-workers informed WorkCover Inspectors that Mr Smyth was conscientious about the cleanliness of his truck and that, although not one of them had communicated it to management, they had previously observed him climbing the back of his truck whilst in the process of cleaning it. Investigation of the incident 24. On 16 February 2008, Inspector John Sharpin attended the premises of the defendant and made observations contained in a Factual Inspection Report. 25. During the course of the inspections at the premises Inspector Sharpin took a number of photographs. Attached and marked with the letter "A", is a copy of some of the photographs taken by Inspector Sharpin dated 16 February 2008. Unsafe plant/Inadequate guarding 26. Prior to the incident, trucks within the defendant's fleet did not operate with any guarding in place at the trucks' nip points or danger zones. In particular the defendant's concrete agitator trucks did not have barrel guards fitted at the nip point between the gob hopper and the agitator bowl. 27. Trucks within the defendant's fleet were originally fitted with barrel guards when they were purchased, however the guarding was subsequently removed. 28. The supplier of the concrete agitators, Cesco Davcron Engineering Pty Ltd ("Cesco Davcron"), informed WorkCover Inspectors (through its Operations Manager, Mr Bryan John Stephens ("Mr Stephens")) that Cesco Davcron and its predecessor Davcron Engineering Pty Ltd, had supplied all of the defendant's agitators over the past nine years and that all trucks supplied to the defendant had guards fitted to them. Mr Stephens also informed WorkCover Inspectors that the barrel guards had been a standard fit to concrete agitators since 1996. 29. In addition to the above, Mr Stephens informed WorkCover Inspectors that a barrel safety guard was originally fitted to the agitator between the gob hopper and agitator bowl on truck G15. 30. Mr Darryl Scotman (defendant's General Manger) stated that the defendant's fleet of mini-mix trucks were not supplied with any guarding, and that only the larger trucks (such as truck G15) acquired from approximately 2006 onwards were fitted with a guard between the gob hopper and the agitator bowl. 31. A number of the defendant's employees, including Mr Tassone (concrete batcher), Mr Steven Fleming (truck driver) and Mr Scotman informed WorkCover Inspectors that truck G15 was fitted with a barrel guard between the gob hopper and agitator bowl when it was purchased in late September/early October 2007. 32. It is not known why the guard was removed, however Mr Stephens, Mr Michael Gallagher (truck driver), and Mr Albert Cornwell (truck driver) informed WorkCover Inspectors that there was resistance to the use of guards by truck drivers working for the defendant due to restricted vision and difficulties cleaning the concrete truck agitators when the guards were in place. Risk assessment 33. Prior to the incident the defendant had not undertaken an adequate risk assessment in relation to the concrete agitator trucks. In particular, the defendant did not identify the risk of injury arising from: a. a lack of guarding of the nip point located between the gob hopper and agitator bowl and determine how the risk could be eliminated or controlled. System of work 34. The cleaning of concrete trucks and agitator bowls comprised part of the defendant truck drivers' normal duties at the premises. As such, each driver was responsible for maintaining the cleanliness of the truck that they drove. 35. Prior to the incident the defendant did not have in place a written safe work procedure or method statement, for the task of cleaning concrete agitator trucks. 36. There was however a system of work in place at the premises for the cleaning of concrete trucks that involved the truck drivers parking their trucks in the wash out pit at the depot and cleaning the outside of the concrete truck and agitator as well as the inside of the concrete agitator. 37. The truck drivers would clean the outside of the agitator with water, detergent or acid and a broom. The cleaning of the inside of the agitator involved rinsing the agitator with water a number of times, usually whilst the agitator was turning. The water was loaded into the agitator through the hopper and into the barrel. There was no requirement that the fins be cleaned on a regular basis. 38. The system of work did not include or require the isolation of the agitator bowl at any stage whilst cleaning. In particular, the system of work did not require the agitator bowl to be isolated prior to employees being permitted to undertake cleaning work on and in the vicinity of the gob hopper and the entry point to the agitator bowl. 39. Further, the system of work did not specifically require the maintenance of safe working distances when cleaning the concrete agitator trucks. In particular, the defendant did not ensure that employees maintained a safe working distance from the agitator assembly whilst undertaking cleaning work on and in the vicinity of the gob hopper and the entry point to the agitator bowl. Information, instruction and training 40. Prior to the incident Mr Smyth had commenced undertaking training in road transport and distribution at the defendant's cost. This training was provided by the Small Business Training Company Pty Ltd (trading as Workstar) and was partially completed at the time of the incident. The training encompassed basic work related activities such as vehicle inspection, use of hand tools and minor mechanical equipment, workplace communication and occupational health and safety procedures. 41. Mr Smyth did not receive any specific instructions or training with respect to the concrete truck G15. Mr Scotman (General Manager) informed WorkCover Inspectors that it was normal practice at the time of delivery, for the dealer to go through the features of the truck. The defendant does not possess any records documenting that this had occurred or demonstrating that Mr Smyth had been inducted into truck G15. 42. The defendant did not provide specific instructions or training with respect to the guarding of the concrete agitator trucks. In particular the defendant did not ensure that the employees were: a. provided with information or training in relation to the nip point located between the gob hopper and agitator bowl. b. informed that a safety barrel guard must be located at the nip point between the gob hopper and agitator bowl. c. instructed not to remove the safety barrel guards that were installed at the nip point located between the gob hopper and the agitator bowl and the assembly thereof. d. informed of the hazards associated with removing the safety barrel guards, and in particular the risk of crush injuries or entrapment. 43. The defendant did not provide specific information instruction and training in relation to the cleaning of concrete trucks and agitator bowls, and in particular with respect to: a. ensuring that it always documented the competency training provided by employees regarding the task of cleaning the gob hopper and entry point to the agitator bowl and the assessment thereof. b. informing and instructing employees to isolate the agitator bowl prior to undertaking cleaning work on and in the vicinity of the gob hopper and the entry point to the agitator bowl. c. ensuring that it always documented the circumstances in which employees were formally informed and instructed to maintain safe working distances from the agitator assembly whilst undertaking the task of cleaning on and in the vicinity of the gob hopper and the entry point to the agitator bowl. 44. As a consequence of the above, the only training the defendant's truck drivers received in the cleaning of concrete agitator trucks prior to the incident was through a buddy system. System of work following the incident 47. On 19 February 2008 an Improvement Notice (7-152567) was issued upon the defendant which required it to: a. review risk assessments and control measures adopted by truck drivers/operators for the process of cleaning concrete delivery trucks and agitators in consultation with all relevant staff; and b. provide WorkCover with a report detailing the consultation mechanisms employed in the process, the outcomes of the review and the actions or proposed actions taken by the defendant with respect to implementing the outcomes of the review. 48. On 19 March 2008 the following notices were issued upon the defendant: a. Improvement Notice (7-155053) which required the defendant to: i. securely guard the area between the gob hopper and the agitator bowl on all concrete trucks within the defendant's fleet; ii. develop, implement and maintain safe systems of work to ensure that all plant used at work is securely guarded at all times. b. Improvement Notice (7-155056) which required the defendant to: i. provide employees with appropriate instruction, training, information and supervision in relation to the safe systems of work for cleaning the agitator bowl of concrete trucks. 49. In response to the incident and Improvement Notices, the defendant established an internal audit team to conduct an evaluation of the concrete agitator trucks and the system of work for cleaning of the agitator trucks. The defendant has also fitted all of its concrete trucks with a guard between the gob hopper and agitator bowl. 50. The defendant has also changed its system of work with respect to cleaning concrete trucks and agitators. In doing so, the defendant: a. undertook a Job Safety Analysis; b. developed and documented a safe work procedure titled "Cleaning Agitator Truck"; and c. implemented training in this procedure. 51. In addition, the defendant commenced a formal training regime, which includes ensuring that employees undertake an induction into their vehicle and into the key components of the occupational health and safety management system. Co-operation with WorkCover 52. The defendant co-operated with WorkCover during the investigation. Prior convictions 53. The defendant has no prior criminal convictions. 6 There was also admitted into evidence certain photographic evidence and an affidavit of Gerard Malcolm Lane who provided occupational health and safety services to the defendant company. There were exhibited to Mr Lane's affidavit two volumes of material which supported the affidavit evidence that he gave. 7 I accept that the evidence of Mr Lane has established the following factual matters: 1) That the defendant co-operated fully with the prosecutor in and about the investigations conducted by the WorkCover Authority of New South Wales following the incident that gave rise to these proceedings. 2) That the defendant has expressed tangible remorse and contrition arising out of the incident, including care and assistance rendered to the family of Mr Smyth. 3) That the defendant may be regarded as a good corporate citizen by reason of its assistance to various charities, its general acceptance and acknowledgement of its occupational health and safety obligations, the fact that prior to the incident it did have in place comprehensive and detailed protocols designed to ensure compliance with its occupational health and safety obligations and that after the incident it took positive and constructive steps to endeavour to eradicate the prospect of such an incident occurring in the future. 8 The prosecutor submitted, and the defendant did not dissent from the submission, that there were a number of matters that must be taken into account when assessing the objective seriousness of the offence. This is a matter that is the starting point for the assessment of an appropriate penalty. These were that: 1) There was a failure by the defendant to ensure that the agitator truck was adequately guarded against access to the fins, which were moving at the time that Mr Smyth was undertaking the cleaning operation. 2) Although the defendant did have an informal system of work in relation to the cleaning of trucks, it was not documented and it was not adequately enforced. Furthermore, there was no specification that work should be carried out whilst the agitator had been disabled, at a safe distance and to avoid contact with nip points. 3) No specific instruction or training was given with respect to the guarding of the truck, or about the safe means of cleaning it, including information about the hazards associated with the manner in which the work was seemingly attempted by Mr Smyth. 9 Counsel for the prosecutor submitted that objectively the offence should be assessed as "moderately serious". I agree with this submission. The ostensible seriousness of the offence needs to be tempered by reference to the following additional factual matters: 1) The evidence of Mr Lane, supported by the contents of the agreed statement of facts, was to the effect that the defendant's system of work provided for employees to use a purpose built ladder and platform on the rear of the truck in order to carry out any cleaning operation. Had Mr Smyth used the purpose built platform for this purpose, there would have been no possibility of the accident occurring. 2) Mr Smyth had undergone training before the incident as to the appropriate cleaning method to be adopted, namely access via the ladder and platform. He was performing work contrary to this training on 16 February 2008 when the incident occurred. He had previously been warned by work colleagues about the method, which he ultimately used on 16 February 2008, and had assured them that he would not use that method in future. There is no explanation as to why Mr Smyth climbed on the back of the truck and stood on the discharge chute on this occasion. 10 In considering the quantum of penalty I shall also take into account the deterrent effect of the imposition of a penalty, both generally within industry and specifically in the context of this defendant. However, the specific deterrent effect may be mitigated by reference to the defendant's commitment to its occupational health and safety obligations which includes the taking of comprehensive and detailed steps following the incident to endeavour to avoid any further incident of this kind arising. There is, by way of example, now in place a detailed protocol for the cleaning of trucks which has been disseminated to employees and with which they are required to comply. 11 There are some subjective matters that the Court is required to take into account in determining the penalty. The defendant entered a plea of guilty relevantly at the earliest appropriate opportunity and is therefore entitled to a discount of the order of 25 per cent. Furthermore, as I have previously indicated, the defendant co-operated with the WorkCover Authority of New South Wales, has expressed contrition and remorse for what occurred, has taken proactive steps since the incident to enhance its compliance with its occupational health and safety obligations and is a good corporate citizen. I note also that the defendant has been in operation since October 1996, currently has about 50 employees and has no prior convictions for any offence under the Act. 12 The maximum applicable penalty is the sum of $550,000. Having regard to all of the matters to which I have referred, including the subjective matters in mitigation of the penalty, I am of the opinion that an appropriate penalty is $85,000. 13 The prosecutor sought orders for costs and a moiety of the penalty, which were not opposed and which, in my opinion, it is appropriate to make. Orders 14 I make the following orders: 1) The defendant is found guilty of the offence with which it is charged and convicted accordingly. 2) The Court imposes a monetary penalty of $85,000 with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecutor, assessed 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.