Industrial Court of New South Wales CITATION: Inspector Christopher Moore v OSS World Wide Movers Pty Ltd [2010] NSWIRComm 81 Inspector Christopher Moore (Prosecutor) PARTIES: OSS World Wide Movers Pty Ltd (Defendant) FILE NUMBER(S): 588 of 2009 CORAM: Backman J CATCHWORDS: Occupational health and safety - Occupational Health and Safety Act 2000 - plea of guilty - workers are injured after falling over first floor balcony railing while attempting to move furniture - systems in place prior to offence - risk to safety and reasonable foreseeability of the risk - consequences of the breach - availability of simple measures to minimise risk - deterrence - section 21A(2)(i) whether offence committed without regard to public safety - subjective factors - penalty - orders LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Elyard v Regina [2006] NSWCCA 43 Inspector Dimitri Barlas v C & J Carpentry & Construction Pty Ltd and Others [2009] NSWIRComm 127 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 CASES CITED: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 R v Mauai [2005] NSWCCA 207 R v Way (2004) 60 NSWLR 168 Regina v Aslan [2005] NSWCCA 121 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 HEARING DATES: 5/11/2009 DATE OF JUDGMENT: 28 June 2010 Mr M Scott (Prosecutor) WorkCover Authority of New South Wales (Ms A Wong) LEGAL REPRESENTATIVES: Mr A Gotting (Defendant) Heidtman & Co Lawyers (Ms KA Nathan) JUDGMENT: - 7 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J Monday, 28 June 2010 No IC 588 of 2009 Inspector Christopher Moore v OSS World Wide Movers Pty Ltd [ACN 000 776 750] Prosecution pursuant to section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2010] NSWIRComm 81 1 OSS World Wide Movers Pty Ltd (the defendant) has pleaded guilty to one offence under s 8(1) of the Occupational Health and Safety Act 2000. The defendant undertook the business of domestic and international furniture removal. It commenced operations in 1970. At the time of the offence, the defendant employed about 40 workers of whom approximately two thirds were engaged in furniture removal activities. 2 The defendant had a process for accepting bookings for removal services which involved a sales consultant or estimator attending the pick-up or delivery address to approve the goods scheduled for removal and to assess the sites. This procedure facilitated the provision of an accurate costing to clients. It also enabled the defendant to identify any special plant or equipment (for example, a lift platform) which might be required for the task. The information from the estimator's job sheet was noted on a worksheet (which also noted any special requirements). The worksheet was then provided to the work crew assigned to the task. 3 On or about 24 April 2007, an employee of the defendant carried out a survey for the removal of furniture and effects from a dwelling located at 14 Ivy Lane, Darlington. No survey, however, was conducted with regard to the delivery address at 182 Abercrombie Street, Darlington. 4 On 9 May 2007, two employees of the defendant, John Vincent Spiteri and Jason Wetere, were assigned the task of moving furniture from and to the two previously mentioned addresses in Darlington. Mr Spiteri, at that time, had been employed by the defendant as a removalist with some 2.5 years experience. His principal duties involved driving trucks, delivering shipments and warehouse duties. Mr Wetere had been employed by the defendant as a casual removalist and had been working for the defendant since 3 February 2006. 5 Mr Spiteri was assigned the role of acting team leader. He and Mr Wetere were to remove the furniture and effects from the Ivy Lane premises and deliver and unload the items at the Abercrombie Street premises. They were given a job sheet for the task which only provided the pick up and delivery addresses. It did not note any special requirements. While the two workers were loading the furniture and effects at the Ivy Lane premises, they were joined by Michael John Seaton and Sam Tuala, two other employees of the defendant who had been instructed to assist Mr Spiteri and Mr Wetere to complete the task. Mr Seaton had approximately 15 years experience as a removalist prior to working for the defendant. As at 9 May 2007, he had been working for the defendant for a little over three years as a removalist and driver. Mr Tuala, who had about 2 years removal experience prior to joining the defendant, had worked as a permanent removalist for the defendant for three to four years. 6 Some of the furniture from the Ivy Lane premises was loaded into Mr Seaton's truck. When the loading up of the furniture and effects was completed both trucks drove the few blocks to the Abercrombie Street premises. 7 Those premises consisted of a terrace dwelling about 3.4 metres wide with access to the second level via a narrow and twisting internal staircase. The premises was undergoing renovation at the time with tools and leads blocking free access. The four employees implemented a "train of movement" system whereby boxes and material were passed from one employee to the other, with each employee strategically placed so as to reach the material and pass it to the next person. 8 It was ascertained that some items of furniture were not able to fit through the narrow stairway. The decision was made that these items would be lifted via the first floor balcony which came off the main bedroom of the premises. Mr Seaton stood on this balcony. Mr Tuala positioned himself on the ground and handed up parts of a bed frame to Mr Seaton. At some stage, Mr Tuala attempted to hand to Mr Seaton an armchair, but Mr Seaton could not reach it. Mr Spiteri joined Mr Seaton on the first floor balcony in order to render assistance. Mr Tuala raised the armchair towards the balcony but as Mr Spiteri and Mr Seaton reached forward the balcony gave way and both men fell approximately 3.2 metres to the ground below. Mr Spiteri landed on his feet and rolled. His head impacted the side of a parked car. He suffered injuries to his cervical and lumbar spine and psychological injury. He returned to work on light duties on 4 October 2007 and on 5 May 2008 his employment was terminated by the defendant (for reasons unrelated to the incident). Mr Seaton landed on or near the gutter with the major impact being on his right heel. He suffered nine fractures to his heel, some of which punctured the skin leading to significant bleeding. He returned to work on restricted duties on 20 September 2007, but underwent further surgery on 13 February 2008 and was subsequently declared unfit for work. According to the agreed facts, it is likely that Mr Seaton will be unable to return to his normal duties as a removalist. Systems of work in place prior to the offence 9 In 2001, the defendant used a joint Australian Furniture Removal Association (AFRA) WorkCover video in its induction of new employees. The video addressed safe working procedures in the removal industry. In 2002, the defendant began using a joint AFRA/WorkCover DVD which addressed balcony moves, including the need to check the stability of the balcony before undertaking any such move and the need to avoid leaning on the balcony. The DVD was used to induct new employees and to train existing employees. In the same year, the defendant began distributing to employees a booklet associated with the DVD entitled, "Work Smarter, Not Harder". It also developed, with the assistance of a specialist consulting firm with experience in occupational health and safety risks in the removal industry, an OHS Policy and an Employment and Safety Handbook, which was distributed to its employees. 10 In an affidavit sworn by Robert John Wray, a joint managing director of the corporate group of which the defendant is a member, Mr Wray said that Mr Spiteri completed a four-day OHS training course in April 2004. This training included risk assessment and hazard identification training, as well as effective OHS consultation in the workplace. The training was undertaken when Mr Spiteri worked for a labour hire company who hired his services to the defendant. Subsequently, Mr Spiteri was employed by the defendant. 11 The defendant, since May 2006, also conducted monthly toolbox talks with operational staff and provided updates concerning occupational health and safety issues relevant to the work conducted by the defendant. On 2 June 2006, one of the topics of the toolbox meeting held on that day was balcony moves. This meeting was attended by Mr Spiteri, Mr Seaton and Mr Tuala. Specific procedures were addressed for conducting a balcony move which included the need to refrain from undertaking a balcony move unless contact was first made with the defendant's management. The express purpose for addressing these procedures was so that possible risks could be identified and appropriate equipment could be ascertained. 12 On 1 February 2007, Mr Wray arranged for the defendant to engage Chris Farley as a full-time Quality Manager, a newly created role which included having day-to-day responsibility for occupational health and safety matters. 13 On 27 April 2007, Mr Farley and Mr Wray arranged for the defendant to re-engage the specialist consulting firm to review the OHS Policy and the Employment and Safety Handbook. On the same day the defendant received from the specialist consulting firm a "best practice" workplace management system model for implementation in the workplace. 14 According to the agreed facts, the practice of lifting furniture over balconies was not common practice. The Court was not further enlightened as to the significance of that particular item of information to the present proceedings. It may not have been a common practice, but it was a procedure contemplated by the defendant prior to the offence, and it was incumbent upon the defendant to devise appropriate and safe procedures whenever the practice was to be utilised. It held a toolbox meeting on 2 June 2006 during which balcony moves was a subject of discussion. Nevertheless, as earlier mentioned, there was a procedure in place which had been formulated by the defendant and which was specifically tailored to tasks involving the removal and delivery of furniture and other items. This procedure was not followed with regard to the Abercrombie Street premises. Had the estimator conducted a proper assessment of those premises it might have come to his or her attention that access to the first floor of the premises would pose difficulties for the removalists in delivering some of the furniture and items to that level. Appropriate measures and procedures could no doubt have been devised and made available in order to facilitate the workers in completing the task safely and effectively. A procedure which involved lifting heavy and cumbersome items over the balcony, which was situated directly above a public street, could have been considered and adequate instructions issued to the effect that such a procedure should not be attempted unless and until all appropriate measures were in place to ensure that the activity could proceed safely. It would appear that apart from the defendant's failures to ensure the procedures followed on the day of the offence satisfied the stringent requirements for safety, it did have in place an impressive number of procedures designed to ensure the safety of its workers and any other personnel involved in, or in the vicinity of, its removalist operations. These procedures included those to be adopted with regard to balcony moves. In particular, during the toolbox meeting of 2 June 2006, the defendant sought to emphasise that balcony moves should not be undertaken without first contacting the defendant's management. These measures, put in place by the defendant prior to the offence, serve to mitigate the otherwise objective seriousness of the offence. Risk to safety and reasonable foreseeability of the risk 15 In written submissions, the prosecutor submitted that the level of risk to Mr Seaton, Mr Spiteri and Mr Tuala was high. The risk to Mr Tuala was characterised by the prosecutor as a risk to his safety by reason of his location directly underneath the balcony on the footpath which, it was said, exposed him to a "real risk" of injury from the falling armchair, as well as from the falling workers. The risk to Mr Seaton and Mr Spiteri, the Court finds, by reference to the particulars in the charge, was the risk which arose from working at height from the balcony. No submissions were made by the prosecutor as to whether the fourth worker, Mr Wetere, was placed at risk. 16 According to the prosecutor, the risks to safety were "highly foreseeable" in circumstances which involved two furniture removalists on a small balcony leaning against it in order to reach (and lift) a heavy piece of furniture without any form of harness or strap attachment. The prosecutor did not address whether, and if so to what extent, some form of harness or strap attachment would have constituted a practical measure designed to alleviate or minimise the risks. It seems both obvious, and foreseeable, in my view, that a risk to the safety of Mr Spiteri and Mr Seaton would arise in circumstances where the estimator failed to assess the Abercrombie Street premises beforehand, where the workers were given inadequate instructions and information concerning the hazards of working at height (on the balcony) and where the method used involved the two workers leaning over the balcony railing without any form of restraint (either for themselves or for the armchair) at a height in excess of three metres. Given those circumstances, it is equally obvious and foreseeable, in my view, that Mr Tuala, standing directly below the balcony, was exposed to a risk to his safety by reason of the risk of the workers falling (from the balcony) and/or the armchair falling. 17 The prosecutor also submitted that the balcony was of a flimsy construction which added to the foreseeability of the risks. The only evidence relied upon by the prosecutor to support the submission was a photograph which purports to depict parts of the balcony railing, after it collapsed, on the footpath below the balcony. Reliance on a photograph, without more, is insufficient to sustain an inference that the railing was of a flimsy construction. It was not suggested by the prosecutor that the balcony railing was of substandard workmanship. The Court is therefore unable to conclude on any reasonable basis that the construction of the balcony railing or the material used in its construction was of such poor quality or workmanship that these facts could have contributed in some way to the risks to safety of the workers. 18 A finding that the risks to safety were foreseeable serves to illustrate the objective seriousness of the offence. Consequences of the breach 19 The very serious injuries suffered by Mr Spiteri and Mr Seaton manifest the degree of seriousness of the risks to safety. As the authorities have repeatedly emphasised, although the fact of injury alone does not dictate the seriousness of the offence or the penalty, it nevertheless indicates in the circumstances here that the breach of the Act had every prospect of serious consequences: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] [18] [23]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. Availability of simple measures to minimise the risks 20 A further factor which heightened the objective seriousness of the offence was the availability of relatively simple measures which would have obviated or minimised the risks. The defendant, immediately after the accident, implemented a number of measures designed to ensure that its workers could remove and deliver furniture without being placed at risk. The agreed facts record that following the incident Mr Wray issued a directive to the defendant's operational management, and notified all staff (on 18 May 2007) with a view to reinforcing the policy that no balcony moves were to be undertaken unless prior arrangements had been made and an appropriate risk assessment undertaken. 21 The defendant also implemented a number of measures which are summarised below: (i) on 17 May 2007, a procedure was implemented with regard to the use of a written risk assessment/hazard identification form which was required to be completed prior to the commencement of a removal job and which also required the identification of risks and control measures; (ii) a range of OHS training was arranged for employees; (iii) in 2008 a new Employee Handbook was implemented; (iv) on 14 July 2009 the, "no balcony moves" message was reinforced at the monthly toolbox meeting; (v) since the incident monthly toolbox meetings continue to be held, an OHS Committee has been maintained, arrangements have been made for occasional OH&S audits, a specialist consultancy firm has been retained on an annual retainer to obtain advice and assistance on safety issues, a Fatigue Management procedure has been distributed, and an OH&S Consultants Statement has also been distributed. 22 Many of these steps which seem reasonably simple and straightforward could have been taken, or in the case of topics discussed at the monthly toolbox meetings, reinforced by the defendant at any time before the offence. Deterrence 23 The defendant accepted that general deterrence was a proper and appropriate consideration in the circumstances of the offence: see Inspector Dimitri Barlas v C & J Carpentry & Construction Pty Ltd and Others [2009] NSWIRComm 127 at [16]. 24 With regard to specific deterrence, the defendant submitted that given the range of safety instructions introduced by it after the accident, including the restrictions imposed on balcony moves, the need for specific deterrence is limited. 25 Although the measures introduced by the defendant after the offence are impressive and suggest practical and effective solutions aimed at minimising further risks to the safety of its employees, the defendant is still engaged in removalist operations and for that reason a small component of the penalty to be imposed will reflect the need to apply the principle of specific deterrence. Section 21A(2)(i) Crimes (Sentencing Procedure) Act 1999 26 The prosecutor submitted that the Court should also take into account as an aggravating factor s 21A(2)(i) of the CSPA which deals with offences committed "without regard for public safety". The bases upon which it was submitted that the sub-section applied were: (a) the photographs show that the balcony was hanging over a public street; (b) debris from the railing was in the public street; (c) Mr Spiteri and Mr Seaton fell onto the footpath; (d) any persons who were present on the street at the relevant time stood a real and substantial risk of being injured. 27 The defendant raised for consideration the issue of the absence of an allegation in the charge that a member of the public was at risk. If such an allegation were to be made, it would form the subject of a charge under s 8(2) of the Act and no charge under that section has been brought against the defendant. 28 The evidence before the Court does not give rise to a suggestion (or indication) that any member of the public was in the area or in the vicinity of the area at the time the workers were attempting to deliver furniture by means of raising the furniture up to the balcony on the first floor level. Although the prosecutor relied on the application of the sub-section to members of the public being present "at the relevant time" there were no members of the public present at any time during the exercise. The words "without regard to public safety" arguably encompass a broader set of considerations than those concerned with members of the public being actually present on the footpath at the time the delivery of the items was taking place. In Regina v Aslan [2005] NSWCCA 121 at [15], Grove J (with whom Hunt AJA and Hull J agreed) observed that, "the concept of an offence being committed without regard for public safety is distinguishable from the concept of specifically placing the public at risk". 29 The factual circumstances in the present proceedings may, however, prevent the application of the sub-section. Thus, in R v Mauai [2005] NSWCCA 207 at [19] no issue was raised of public safety in circumstances involving an armed robbery in a hotel which was closed to the public and where only the manager and his wife were present at the premises. 30 Aslan concerned the supply of prohibited drugs to an undercover police officer, as well as the sale of firearms. It was submitted on appeal that the sentencing judge was in error for taking into account, as an aggravating factor, that the applicant had provided the firearms (pistols) without regard for public safety. In finding that error had not been established, Grove J placed reliance on a passage from R v Way (2004) 60 NSWLR 168 where it was said: We also consider that it was appropriate for his Honour to have regarded the offence as one committed without regard for public safety (another s 21A(2) factor). The applicant was not to know that the buyer was an undercover operative and that the drugs would be seized and destroyed. What was relevant in this context was his motivation or understanding, so far as that went to an assessment of his moral culpability. He undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be resold, heedless of the consequences to those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake. The observations of Smart AJ in R v Chan [1999] NSWCCA 103 as to the limited relevance of the fact that drugs which are supplied to undercover agents will not reach the community, apply. As his Honour pointed out, that circumstance was not due to any act of the offender. 31 The above passage suggests that an assessment of what might amount to conduct "without regard to public safety" involves a subjective test, relying on establishing an offender's motive, as well as an analysis of whether the offender was, "heedless of the consequences". If so, in the present circumstances there is no evidence to sustain a finding that the sub-section has any application to the defendant. If, on the other hand, the test is objective (or a combination of both), different considerations will apply. Some authorities on the issue suggest, however, that an aggravating factor (under s 21A(2) of the CSPA) may not be engaged if it constitutes an element or an inherent characteristic of the offence: see for example Elyard v Regina [2006] NSWCCA 43 at [10] [11] [15] per Basten JA. A failure to have regard to public safety is not an element of the present offence, nor is it an inherent characteristic of the offence. The offence under s 8(1) is directed towards the safety of employees at work, not members of the public. The Court has not been directed to or been addressed on any evidence or any authorities that might assist in the resolution of these matters, or their relevance to the circumstances of the present offence. That being so, the Court finds itself unable to determine the issue. Subjective factors 32 The defendant has no prior convictions. The maximum penalty therefore is $550,000. The absence of prior convictions also entitles the defendant to leniency normally extended to an offender not adversely recorded. 33 The defendant also entered its plea of guilty at the first reasonable opportunity. I propose to award a discount of 25 per cent for the utilitarian benefit derived from the plea of guilty. 34 As a separate consideration, the defendant is also entitled to leniency in recognition of the remorse shown by the plea of guilty. 35 The extensive remedial action undertaken by the defendant after the offence, which has been earlier set out in some detail, will be taken into account in mitigation of the penalty to be imposed. 36 The defendant also co-operated with the WorkCover Authority. It has also shown contrition as reflected in its expression (through Mr Wray) of sincere and profound regret over the incident and in its endeavours undertaken after the offence to implement effective and safe measures in order to obviate any further risks to safety. 37 The defendant has also demonstrated its good industrial record. Since 1970, Mr Wray estimates that the defendant has undertaken close to 100,000 removal jobs in and out of Sydney alone. It has had a long involvement in the industry and has operated extensively within that industry not only in Sydney, but also in Brisbane and Melbourne. 38 It also rendered assistance to the injured workers and to other employees. Mr Farley visited the injured workers in hospital. Mr Wray visited Mr Seaton in hospital and spoke to Mr Spiteri by telephone at his home. The defendant also provided financial assistance to Mr Seaton and also made available to him four short-term loans. 39 The defendant also relied on a number of testimonials which attest to its good corporate character and reputation. 40 These subjective factors will be taken into account in the defendant's favour in mitigation of penalty. Penalty 41 In determining penalty the Court has taken into account the objective seriousness of the offence, the subjective factors, the maximum penalty and the absence of prior convictions by reference to the CSPA, in particular, s 21A. Orders 42 In Matter No IRC 588 of 2009, the Court makes the following orders: 1. The defendant is convicted of the offence. 2. The defendant is fined $70,000 with a moiety to the prosecutor. 3. The defendant is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement, as assessed. ___________________ 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.