Industrial Court of New South Wales CITATION: Inspector Meaghan ONeil v Brickmart (NSW) Pty Limited [2007] NSWIRComm 273 Prosecutor: Inspector Meaghan ONeil PARTIES: Defendant: Brickmart (NSW) Pty Limited FILE NUMBER(S): IRC3034; IRC3035 of 2006 CORAM: Kavanagh J CATCHWORDS: Two charges against defendant company under s8(1) and s8(2) of the Occupational Health and Safety Act 2000 - recognised risk to safety in unloading scaffolding from shipping container - failure to control risk - system of work being redesigned - safe working procedures introduced - no re-training of employees - fatality - general and specific deterrence - principle of totality applicable - penalty imposed LEGISLATION CITED: Occupational Health and Safety Act 2000 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383 CASES CITED: Thornelloe v Filipowski (2001) 52 NSWLR 60 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Anor (2000) 95 IR 383 HEARING DATES: 20/08/07, 21/08/07, 22/08/07, 17/09/07 DATE OF JUDGMENT: 26 November 2007 Prosecutor: Mr S. Crawshaw SC with Mr D.W.M. Chin of counsel Solicitors: Ms R. Panagoda WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr K.G. Bennett of counsel Solicitors: Dr S. Bridgeford Bridgeford & Associates JUDGMENT: - 15 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Monday 26 November 2007 Matter No IRC 3034 of 2006 INSPECTOR MEAGHAN O'NEIL v BRICKMART (NSW) PTY LIMITED Prosecution under s8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 3035 of 2006 INSPECTOR MEAGHAN O'NEIL v BRICKMART (NSW) PTY LIMITED Prosecution under s8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 273 1 Two prosecutions are brought by Inspector Meaghan ONeil of the WorkCover Authority of New South Wales (the prosecutor) against Brickmark (NSW) Pty Limited (the defendant company) one under s8(1) of the Occupational Health and Safety Act 2000 (the Act) and the other under s8(2) of the Act. 2 It is alleged in Matter No. IRC3034 of 2006, the defendant company contravened s8(1) of the Act in that it failed to: ensure the health, safety and welfare at work of all its employees, and in particular, Anthony Randall, contrary to section 8(1) of the Act. In particular, the defendant failed to: (a) ensure that premises controlled by the defendant where the employees work were safe and without risks to health, in particular of the shipping container identified by markings as "ECMU 412022 8 42G1 ic 87", "2.8m 8'6" which was located at the Premises ("Container"). (b) ensure that the system of work and the working environment of the employees was safe and without risk to health, in particular the system of work for unloading shipping containers such as the Container. (c) prevent the employees from unloading shipping containers such as the container before any identified risks to safety associated with unloading the shipping containers were either eliminated or controlled. (d) ensure the stability and structural integrity of the contents of the Container and the stillages/frames used in the Container prior to and in the course of unloading the Container. (e) prevent the employees from entering the Container prior to ensuring the stability and structural integrity of the contents of the Container and the stillages/frames used in the Container. (f) provide any or any adequate information, instruction, training and supervision as was necessary to ensure the employees' health and safety at work, in particular in relation to unloading shipping containers such as the Container. (g) undertake a formal and adequate risk assessment to identify the risks associated with unloading shipping containers prior to unloading those containers, including a risk assessment of the method of storage of the contents of shipping containers such as the Container. As a result of the said failures, Anthony Randall was placed at risk to his health and safety. 3 It is alleged in Matter No. IRC3035 of 2006, the defendant company, contravened s8(2) of the Act in that it failed to: ensure that persons not in its employment, and in particular David Worley, were not exposed to risks to their health or safety arising from the conduct of its undertaking, while they were at its place of work, contrary to section 8(2) of the Act. In particular, the defendant failed to: (a) ensure that premises controlled by the defendant were safe and without risks to health, in particular of the shipping container identified by markings as "ECMU 412022 8 42G1 ic 87", "2.8m 8'6" ("Container") which was located at the Premises. (b) ensure that the system of work and the working environment was safe and without risks to health to non-employees, in particular the system of work for unloading shipping containers such as the Container. (c) prevent the entry of non-employees into or in the vicinity of shipping containers such as the Container during the unloading of the shipping containers. (d) undertake a formal and adequate risk assessment to identify the risks associated with unloading shipping containers including the risks of non is-employees entering or being in the vicinity of shipping containers such as the Container prior to and in the course of unloading of such containers. As a result of the said failures, David Worley was placed at risk to his health and safety. 4 The defendant pleaded guilty to the charges. 5 Mr S. Crawshaw, SC, with Mr D.W.M. Chin, of counsel, appeared for the prosecution. The defendant had been before the court in part heard proceedings and pleaded "not guilty". The prosecution relied upon transcript and evidence tendered before the court in the defence of the charge that was heard on 20, 21, 22 August 2007. On 22 August 2007, a plea of "guilty" was then entered. The plea then proceeded to a hearing on 17 September 2007. Mr D.W.M. Chin, of counsel, appeared for the prosecution. An Agreed Statement of Facts, a Prior Conviction Certificate and Statement of Terence Hough, Director of the defendant corporation of 3 March 2005 were tendered in evidence. Transcript in the hearing was relied upon. No witnesses were called on the guilty plea proceedings. 6 Mr G.K. Bennett, of counsel, appeared for the defendant company. The defendant tendered on the plea: an affidavit of Terence Hough sworn 17 September 2007 and bundle of exhibits including the company's Safety Management System Manual in place before the incident. No witnesses were called on behalf of the defendant. 7 The Agreed Statement of Facts relating to both charges relevantly read: 4. At all material times Brickmart and Walsos shared and utilised 222 Harbord Road Brookvale and its immediate environs or surroundings ( the Premises ) for the following purposes: (a) Brickmart conducted an undertaking which comprised the retailing and leasing of building supplies and which, since 1999, involved unloading shipping containers containing scaffolding equipment imported from a supplier in China known as "Steady Scaffold" (on average) once every three months ( the undertaking ); and (b) Walsos conducted a construction business and was supplied with construction plant and materials by Brickmart. 5. As at 4 September 2004: (a) a shipping container containing scaffolding equipment imported from Steady Scaffold and marked "ECMU 412022 8 42G1 ic 87" was situated at, and formed part of, the Premises ( the shipping container ). (b) Brickmart employed Anthony Randall (aged 62) (in the position of "Yard Manager"), Matthew Oliver Amiss (in the position of Plant Manager), and Mr Leonard Ashcroft (in the position of forklift driver) to perform work unloading the shipping container at the Premises. (c) Mr Randall was primarily responsible for unloading shipping containers at the Premises. Since 1997 Mr Randall had been periodically employed by Brickmart and Walsos as shop manager, yard manager, truck driver and as a bricklayer. (d) The work performed by Mr Randall, Mr Ashcroft and Mr Amiss unloading the shipping container at the premises was part of the undertaking and was performed at Brickmart's place of work. (e) David Worley (aged 37) was employed as a Contract Manager by Walsos. He was not employed by Brickmart. (f) Terance Joseph Hough was the only Director of Brickmart who was actively involved in the management of Brickmart. Mr Hough was also the Managing Director of Walsos. Messrs Randall, Amiss, Ashcroft and Worley directly reported to Mr Hough. The prior system for unloading shipping containers 6. In the period before the accident each shipping container received from Steady Scaffold was packed with scaffolding equipment in a manner that was different to each preceding container. 7. Prior to 4 September 2004, although Brickmart had not performed any written risk assessment in respect of unloading the shipping containers, the sequence of unloading was discussed between employees at the time of opening each container. Mr Hough had discussed and identified with Mr Randall the following hazards associated with such unloading: (a) the contents of each shipping container could move in transit. (b) if the contents of the container were disturbed in transit there was a potential for items to fall from the container upon opening the doors of the container. (c) manual handling injuries could arise while unloading the container. 8. Subject to the final approval of Mr Hough, Mr Randall was given responsibility for designing a method which would reduce manual handling of items including scaffolding braces. 9. In view of the identified hazards as referred to above, the usual procedure for unloading shipping containers prior to 4 September 2004 was as follows: (a) A forklift was placed against the door of the shipping container prior to opening the container door in case any of its contents had fallen against the door. (b) A visual inspection of the contents of the container would take place prior to unloading to see if any items had moved in transit. (c) Half of the cross-braces loaded in a racking frame would be manually removed and stacked on Brickmart's own racking frames situated outside the container. (d) The racking frame would then be removed from within the container by a forklift. (e) If possible, workers were not to walk in the container. (f) As each container contained a different mix of items, Mr Randall and Mr Amiss adopted unloading procedures which depended on the contents and the manner in which each container was loaded. 10. Prior to 4 September 2004, in consultation with Steady Scaffold, Brickmart had also commenced a process of designing new racking frames using separate modular racks for use in transporting scaffolding equipment within shipping containers. As at 4 September 2004, the new modular racks had not been implemented as Brickmart was still in the process of determining the correct height of each module so they could be lifted off each other and fit in and out of the container. 11. Prior to 4 September 2004, Brickmart had not provided any of its employees with formal training in the procedures it adopted for unloading shipping containers. However, Brickmart employees, including Mr Ashcroft and Mr Randall were qualified to operate forklifts as well as possessing those manual handling skills pertinent to the building and bricklaying industries. 12. Prior to 4 September 2004 Brickmart and Walsos had purchased a commercially available computer based Occupational Health and Safety Management System. Both Walsos and Brickmart used this system. The system was primarily geared towards Walsos' tasks and requirements. Brickmart utilised the more generic aspects of the system, but not the task specific aspects of the system. The incident on 4 September 2004 13. About one week prior to the 4 September 2004, Mr Hough told Mr Randall that the shipping container was arriving a week later than scheduled, and that Mr Randall would have to re-arrange personnel whose assistance he required to unload the container. 14. The shipping container was delivered to the Premises the night before 4 September 2004. 15. Between 7.00am and 8.00am on 4 September 2004, Mr Randall, Mr Amiss and Mr Ashcroft unloaded the shipping container as follows: (a) Mr Randall and Mr Amiss commenced unloading the shipping container by manually removing loose bags of joint pins. (b) Mr Amiss and Mr Ashcroft were assisting Mr Randall. Mr Randall was the supervisor during the unloading process. (c) While Mr Worley was waiting to collect some material from a hardware store, which did not open until 8.00am, he assisted Mr Randall and Mr Amiss in removing the bags of joint pins from the shipping container. (d) A forklift was then used to remove an A-frame-pallet from within the container. (e) At around 8.00am, in order to say goodbye to Mr Randall, Mr Worley walked around to the front of the container and stepped a foot or two inside the container. (f) Mr Ashcroft was operating a forklift which was situated on the outside of the container with the front wheels of the forklift on the cusp of the entrance to the container, and with the forklift tynes extending into the container. He was using the forklift to manoeuvre a racking frame filled with scaffolding cross-braces. Mr Randall was standing next to the load trying to steady it while it was being manoeuvred by the forklift. The forklift lifted the racking frame about 100mm off the container floor. At this time the load became unstable and started to topple over. Mr Worley rushed forward to assist Mr Randall when the toppling load knocked him back and struck his left shoulder and elbow against another frame behind him. (g) Mr Randall was crushed under the fallen load. (h) The fallen racking frame contained approximately 250 cross braces weighing between 5 to 7 kgs each. (i) There were two D-shaped anchor rings welded to the shipping container above the fallen racking frame. The fallen racking frame was not secured to these anchor points or to anything else. 16. Mr Randall was taken by ambulance to the Royal North Shore Hospital at about 9.00am. Mr Randall was profoundly shocked and had suffered skull and facial fractures, multiple rib fractures, and blood loss within the chest and abdomen. He suffered a cardiac arrest during surgery and was revived. Mr Randall suffered a subsequent cardiac arrest at around 3.00pm and was soon after pronounced dead. 17. Mr Worley suffered bruising, a pulled shoulder and slight scratching to the left elbow and upper arm. Remedial action by Brickmart 18. Since the incident on 4 September 2004, Brickmart has taken the following remedial steps: (a) Implementing the use of new stillages or racking frames. All future shipments of scaffolding components will have cross braces stored in modular stillages made of high-grade steel. Each stillage will not exceed 1 metre in height and will be placed so that it can be removed using a forklift, without the need for a person to walk into the container to remove the cross braces. (b) Implementing procedures that require two or more persons (where practicable, one being Mr Hough) to undertake a risk assessment and visual inspection of each open container before any persons are allowed to enter. (c) Implementing procedures that require two or more persons (where practicable, one being Mr Hough) to undertake a risk assessment and visual inspection of each item before the item is handled or removed from the container. (d) Full implementation within Brickmart of a commercially available Occupational Health and Safety System that had been purchased by Brickmart prior to the incident. Since the incident Brickmart has customised this safety system to include written risk assessments and procedures for all tasks undertaken, documented records of training, regular toolbox talks, an improved induction process and implementation of formal OHS consultation mechanisms. Relevant Principles 8 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213. In that case, their Honours were of the view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(1) & (2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor. The court could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 9 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 10 Proper regard is had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to compel attention to occupational health and safety issues so that persons are not exposed to risks to their health, safety and welfare at the workplace. Consideration 11 In consideration of penalty, the Court must examine the objective seriousness of the offence or, as has been said "the nature and quality of the offence" (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474) ad idem with the view expressed in Markarian.) 12 The charges for which the defendant is brought before the court and to which it pleads guilty is "the offence" and that is what the court must address (WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [43]). 13 The defendant had knowledge that shipping containers bringing scaffolding from China were badly stacked and the racking frames inside were difficult to unpack from the container. The racking frames were stacked with scaffolding and heavy, unable to be moved easily. There was no space underneath them to allow forklift access. The defendant company recognised that both the racking frames were over stacked and the contents of each shipping container could move during transit. These were the hazards faced by employees unpacking the containers. 14 Evidence revealed there had been significant correspondence between the company director Mr Hough, and the agents in China, to redraw the racking system employed. A model racking frame had already been designed in Sydney by the defendant company and it was being used by the company when unpacking the cross braces from the container. Further, a system of work was introduced which required the tynes of a forklift be placed against the container door that were then eased open and a visual inspection conducted. Loose material was removed by hand. Half the cross braces were to be removed manually from within the racking frames before the forklift was employed. Its tynes were then to be placed under the racking frame to lift it out of the container. No employee was to enter the container unless necessary. It was to be avoided. These were measures designed to meet recognised hazards and risks. 15 On the morning of 4 September 2004, three of the defendant's employees began the task of unpacking a container shipped from China. In accordance with the company's procedures, a forklift was used to open the container doors. A visual inspection of the container was made. Bundles of joint pins were removed by hand. However, no cross beams were removed from the racking frames even though the system of work then in place required weight to be taken from the top of the racks. 16 Mr David Worley, an employee of Walsos (a company associated to the defendant company which operated from the same address) had approached the container to greet the defendant's three employees unpacking the container. He had been standing at the entrance of the container and near the forklift. As the forklift tynes were inserted beneath a racking frame to lift it out of the container, the defendant's employee, Mr Randall, entered the container and was trying to steady the load. The forklift proceeded to either manoeuvre the racking frame or remove it. It lifted the racking frame about 100 millimetres off the floor. The load became unstable and toppled. Mr Worley rushed forward to assist Mr Randall as the load toppled, but was knocked back and struck by the scaffolding cross braces on the left shoulder. Mr Randall was crushed by the falling cross braces and suffered fatal injuries. Mr Worley suffered injury to his shoulder and arm. 17 In assessing the objective seriousness of this offence it is relevant to note the hazards had been recognised and a procedure was in place which, if adhered to, could have controlled the risks. A racking frame full of cross braces weighed tonnes. Fifteen of these containers had been delivered over the years and had to be unpacked carefully. The defendant company was so disturbed by the state in which the containers arrived they were in the process of installing, at the China end of the operation, a specially designed new racking frame. A second container delivered at the same time as the one involved in the incident, but not yet opened, carried the new racking frame system. 18 Under the system of work in place there had been an order given no person was to go inside the container "if possible". Mr Randall, the employee who suffered the fatal injuries was highly qualified. He was a qualified bricklayer, demolisher, excavator and general concreter. He had been trained generally in the associated company's occupational health and safety programme. He had his forklift certificate and had been through a safety induction programme. He was a most experienced worker and a trusted employee. He had been integral to the design of the new racking system for the scaffolding. The associated company's safety procedures had been adopted to the defendant company's work. However, neither Mr Randall nor the other employees had been given a rigorous re-training programme in the system of work designed to ensure employees understood the risk of injury from the movement of cross braces if they entered the container. There was no training in place to ensure no employee entered the container while it was being unloaded. As the defendant could not for a period eliminate the risk it had to control the risk. The employer failed in this regard. 19 There is an obligation on an employer to provide a safe system of work and this employer allowed a container to be unpacked while aware of the existing hazards. While the defendant company had in place a system of work for unpacking the container, it failed to control the risk by ensuring its employees were properly trained in the performance of the system. It is the duty of the defendant not only to establish safe procedures but to enforce and promulgate such procedures. In Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [68] it was said: The Act obliges employers not merely to establish safety procedures but also to ensure those procedures are sufficiently promulgated to its workers who are themselves adequately trained in their implementation. 20 The defendant failed to control a recognised risk to safety. It failed to ensure the stability and structural integrity of the contents of the containers in circumstances where it was aware of that hazard and then failed to prevent its employees from entering the container. It failed to provide any adequate information, instruction and training in the unloading of the container. Each of these particulars, as an element of the offence, has been established. I do not accept there was a failure to undertake a "formal" risk assessment. The task had been risk assessed and an interim procedure had been put in place. The Act does not require of an employer a "formal" risk assessment which, the prosecution asserts, should be in writing. Rather I find a risk assessment had been made of the task and the risk to safety recognised and a system of work designed to meet the recognised risk. It was in the promulgation of that safe system to control a recognised risk that there was a failure. 21 The absolute liability of this offence assists not only in deterring prohibited conduct but compelling an employer to take preventative measures and to train its employees in such measures. It is unacceptable to plead that Mr Randall, as a qualified and generally well trained and experienced employee, should have been relied upon to follow procedures. The obligation was on the employer to take such proactive measures as necessary to ensure its employees or others were not exposed to the risk of a collapse from an unstable and unsecured racking frame. As Hill J said in WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 (at 85) there is: The need (is) for employers to exercise abundant caution, maintain constant vigilance and take all practical precautions to ensure safety in the workplace. 22 The defendant asserted it placed reliance upon Mr Randall's skill and this was misplaced. In circumstances where the unloading procedures varied from container to container, depending on the way in which the container was packed, the ever present danger of items becoming dislodged or unstable in transit was well known. The difficulty of unpacking the racking frames was also recognised as a hazard with an associated risk. An employer cannot shift its liability under the Act onto an employee, especially in this circumstance a long serving and loyal one. 23 While the specific injury to an employee and another worker at this work site represents one manifestation of the risk or the potential for harm, it is not definitive of that risk. In Thorneloe v Filipowski (2001) 52 NSWLR 60 (at 71), the Court of Criminal Appeal commented that similar provisions to s8(1) and s8(2) did not represent result offences. The legislative provisions focus on a state or condition rather than a result or consequence. The potential for harm arises by reason of the existence of the state or condition. There were failures of the defendant as charged which led to a risk of injury from the collapse of the contents of the shipping container and that risk became a reality. The words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 are apposite to the circumstances (at 5): The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant. . . 24 In WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383, the Court allowed an element of mitigation to the objective seriousness of the offence with a consideration as to the contribution to the risk by third parties. Walton J, Vice President said (at 434): Thus, the defendants submit that, having regard to the principles of "equal justice", the Court should determine the contributions of each entity both with respect to the "control exercised" by those entities for the purposes of s 17 and more generally (and alternatively) in relation to the contribution of such entities to the accident, including the exercise of expertise and skill. And (at 437): The relationship between the defendants and Lennard, Mercer and the independent contractors is relevant to the extent that it casts light upon the level of culpability of the defendants themselves. The role performed by Lennard and Mercer in the McDonald's System in relation to the installation and maintenance of equipment, as well as the training of staff and the provision of advice, may clearly be pertinent to the reasonableness of the defendants' actions. The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services both in relation to the particular restaurant involved in this case and in the system of safety employed in the entire McDonald's System. The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken. 25 The contribution of others for what occurred can therefore be used as a factor to assist the court to determine the culpability of the defendant as charged. The third party involved here was the scaffolding supplier in China. However, there was no evidence of delay by the supplier nor any lack of co-operation with the installation of the new racking frames once the design was completed. In such a circumstance, there can be no mitigation as to the objective seriousness of the offence. 26 The shipping container delivered subsequent to the incident had the new system of racking frames installed. This reflected the defendant company's endeavor to alleviate a recognised risk. However, that endeavour must be balanced against the knowledge this defendant had of the risk, a risk that became a reality before it was eliminated. There is an element of foreseeability to the offence, given the knowledge of the defendant company of the risk and the failure to rigorously re-train its employees in the work system it introduced. 27 Specific and general deterrence are both relevant as factors in the consideration of penalty. The defendant continues to operate in the building and construction industry, importing and supplying scaffolding to builders. Therefore elements of specific deterrence are relevant. The circumstances reveal the necessity to reiterate to importers using containers the need for rigorous training of employees in the skills associated with unpacking imported loads. Furthermore, once an employer recognises a hazard, rigorous retraining of employees is required in any new safe work procedures. 28 Considering subjective factors, the defendant has now fully implemented the new system and continually looks at ways of improving it including: ... a site induction procedure, induction record; site induction register, OHS employee training register; drug and alcohol policy; harassment/sexual harassment policy; occupation health and safety police; non-smoking policy; site specific details; emergency and evacuation procedure, employees' responsibilities; OHS consultation statement; record of toolbox talk; daily site safety checklist, risk assessment, risk indicators table; manual handling risk management table; plant and equipment risk management assessment; personal protective equipment issue record, has a report; and non-conformance noticing correction. Simple and straightforward steps have been taken to remove the defects in the system of work. New racks which were already in the process of being structured are now in the containers. Further steps have been taken to secure the racking frames to the wall of the container. The use of the forklifts in unloading has now been refined. There is no longer any need for an employee or anyone else to enter the container in the unpacking task. 29 The defendant entered a plea of guilty after the trial had commenced and after the third day of hearing. The court had set aside four further days for the hearing. There can be a discount to a defendant for the utilitarian value of the plea (R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [130]-[133]). In the circumstances, I allow a 15 percent deduction. The defendant has no prior convictions. It co-operated with the WorkCover Authority in its investigations. 30 The defendant gave care and assistance to the widow of Mr Randall. While the deceased's widow was waiting to receive a workers' compensation payment, the defendant's company paid her $500 per week. She was also given other financial assistance for rent and food. 31 No financial information regarding the defendant company was placed before the court for consideration. 32 The defendant has expressed its contrition and the plea reflects that contrition, as did the company director Mr Hough, personally. Mr Hough was clearly disturbed by the death of his friend and employee Mr Randall. He acknowledges the risk that was faced by all his employees and others on his work sites. He has ensured appropriate steps have been taken to ensure the safety of his employees in the future. 33 The maximum penalty for each charge is $550,000. The principle of the totality is relevant as the particulars of each charge under s8(1) and 8(2) are similar and the prosecutions arise out of the same event. 34 Accordingly, I make the following orders: 1. In Matter No. IRC3034 of 2006, I find the defendant guilty as charged. The defendant is fined in the sum of $ 90,000. 2. In Matter No. IRC3035 of 2006, I find the defendant guilty as charged. The defendant is fined in the sum of $90,000. 3. In the application of the principal of totality, I find the appropriate fine is $120,000. 4. In Matter No IRC3034 of 2006, the charge under s8(1) of the Act, the penalty imposed is $60,000. There shall be a moiety to WorkCover Authority of New South Wales. 5. In Matter No IRC3035 of 2006, the charge under s8(2) of the Act, the penalty imposed is $60,000. There shall be a moiety to WorkCover Authority of New South Wales. 6. There shall be only one order as to costs. As there has been no agreement between the parties as to the quantification of the costs, I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. 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