Industrial Court of New South Wales CITATION: Inspector Maurice Vierow v Linddales Pty Ltd [2007] NSWIRComm 255 PROSECUTION Inspector Maurice Vierow PARTIES: DEFENDANTS Linddales Pty Ltd FILE NUMBER(S): IRC 36 of 2007 CORAM: Boland J CATCHWORDS: Occupational health and safety - Breach of s 8(1) of Occupational Health and Safety Act 2000 - Construction industry - Labour Hire firm - Serious injury - Mobile crane toppled over - Guilty plea - Relative culpability - Fine imposed LEGISLATION CITED: Occupational Health and Safety Act 2000 s 8(1) Occupational Health and Safety Regulation 2001 cl 94, cl 122 Capral Aluminium Ltd v WorkCover Authority (2000) 49 NSWLR 610 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 CASES CITED: Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Markarian v R (2005) 215 ALR 213 TNT Australia Pty Ltd v Christie and Others (2003) 65 NSWLR 1 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, 25 February 1994) HEARING DATES: 4 October 2007 DATE OF JUDGMENT: 11 October 2007 PROSECUTION Mr R Reitano of counsel Solicitor: Mr G Diggins WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANTS Mr M J Walsh of counsel Solicitor: Mr D Grace Cooper Grace Ward JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J Thursday, 11 October 2007 Matter No IRC 36 of 2007 Inspector Maurice Vierow v Linddales Pty Ltd Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 255 1 Linddales Pty Ltd, the defendant, was an employer operating as a labour hire company. It had contracted with Barclay Mowlem Construction Limited ("Barclay Mowlem") (now known as Laing O'Rourke (BMC) Pty Ltd) for the provision of labour to perform work at a construction site at 172 Casuarina Way, Kingscliff known as "Peppers at Salt" ("the site"). 2 The defendant supplied a number of its employees, including Mark James, to Barclay Mowlem to do various things including the operation of plant at the site. On 15 January 2005, Mr James was working as the operator of a Manitou mobile crane. In the course of operating the crane with a kibble filled with concrete suspended by chain from a jib attached to the boom of the crane, it toppled over. As a consequence, Mr James received serious injuries including a fractured spine, a broken shoulder blade and psychological injuries. 3 The defendant was subsequently prosecuted by Inspector Maurice Vierow of the Work Cover Authority of New South Wales for breach of s 8(1) of the Occupational Health and Safety Act 2000. Section 8(1) 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. 4 It was alleged in the charge that the defendant "failed to ensure that plant provided for use by James, in particular a Manitou tele-handler, was safe and without risk to his health." The defendant pleaded guilty to the charge. Agreed facts 5 An Agreed Statement of Facts was provided to the Court. Annexed to the Agreed Statement were: · 15 colour photographs of the scene of the incident, including photographs of the crane, · Australian Standard 2550.5-2002 Cranes, hoists and winches - Safe use Part 5: Mobile Cranes, · Australian Standard 2550.5-1993 Cranes - Safe use Part 5: Mobile and vehicle - loading cranes, · Code of Industry Practice for Technical Guidance 2001 a WorkCover Authority of NSW publication, · Australian Standard 1418.5 - 2002, Cranes, hoists and winches Part 5: Mobile Cranes, · Australian Standard 1418.5 - 1995, Cranes (including hoists and winches) Part 5: Mobile and vehicle-loading cranes, · Schedule headed "Prior convictions" showing the defendant had no prior convictions. 6 The body of the Statement indicated that whilst working for Barclay Mowlem Mr James had received training at the defendant's expense and had subsequently been certified to operate a non-slewing mobile crane. The Statement described the circumstances in which the crane toppled over in the following terms: The Manitou was hired or owned by Barclay Mowlem and where and when the Manitou was to be used on the site was under the control of Barclay Mowlem. The construction supervisor/ foreman of Barclay Mowlem responsible for the relevant part of the site was Peter Davis ("Davis"). On 15 January 2005, under the supervision of Davis a pour of concrete for the construction of stairs was being performed at the site. The stairs under construction were located adjacent to the bottom of a ramp ("the ramp") leading to the basement areas of sections of the site known as buildings 4 & 5. The stairs were known as staircase 5.1. The bottom section of the ramp had a slope of approximately 8.2 degrees. The surface of the ramp was predominantly compacted gravel with a transverse strip of rock spalls approximately 600mm in width at its base. The concrete used in the pour was supplied by HiMix Concrete and delivered to the site in an agitator truck driven by Warren Humphries. Mr Humphries was an employee of HiMix Concrete. The way the work was to be performed was that the concrete was to be transferred from the HiMix Concrete agitator truck to a kibble suspended by chain from a jib attached to the boom of the Manitou. This transfer took place in an area at the top of the ramp. The Manitou was then to reverse down to the bottom of the ramp before proceeding to travel slightly up and across the slope of the ramp at an angle of between approximately 45 degrees and 60 degrees to a concrete block wall parallel to the stairway being constructed. The kibble was then positioned at the required location with the assistance of workers present in the stairway area and its contents discharged. James was the driver of the Manitou. The first pour of concrete at staircase 5.1 occurred without incident. This pour was directly supervised by Davis and took place in his presence. Davis was standing next to the Manitou as the pour took place. During the course of an approach for a second pour of concrete, the Manitou became unstable and toppled over down the ramp and into the basement area of building 5. The approach of the Manitou to the concrete block wall for the second pour was on a different angle to that adopted for the first pour. 7 The Statement explained that the crane toppled over because its positioning across the slope of the ramp with an elevated kibble weighing (together with the concrete contained therein) 1100 kilograms transferred the centre of gravity of the crane beyond its lateral tipping axis. The crane was unsafe when used. It was also explained that the crane failed to comply with clause 7.3 of Australian Standard AS 1418.5-2002 Cranes, hoists and winches Part 5: Mobile cranes in the following ways: a) a load indicator system to measure and display the mass of the load being lifted was not fitted. b) a rated capacity limiter to restrict further motion of the crane within the tolerance of 100% to 110% of the rated capacity was not fitted. c) an angle indicator to indicate the angle of the boom or jib to the horizontal at each operating position was not fitted. d) a telescopic boom length indicator to indicate the operating length of the extended boom was not fitted. 8 The Statement noted that the predecessor of AS 1418.5-2002 was AS 1418.5-1995 Cranes (including hoists and winches) Part 5: Mobile and vehicle-loading cranes. With the exception of the failure to fit a rated capacity limiter, the various failures to comply with AS 1418.5-2002 listed above also constituted failures to comply with AS 1418.5-1995. Compliance with AS 1418.5-1995 in the design of a crane is prescribed by clause 94 of the Occupational Health and Safety Regulation 2001. 9 There was further non-compliance with AS 1418.5-2002 in that cl 10.1.1 requires that the manufacturer of a mobile crane provide sufficient charts to clearly define the rated capacity of the crane for all configurations. That Standard sets out various minimum requirements for rated capacity charts including the degree of level applicable to the chart. The rated capacity charts in the Manitou did not comply with clause 10.1.1 in that: a) They were printed in French rather than English. b) They were not applicable to the Manitou as configured but rather to when it was fitted with a forklift attachment. The Manitou on the day was fitted with a jib attachment and therefore the ratings were wrong. c) The speeds at which the Manitou may travel with suspended loads were not shown. d) No charts were provided to clearly define the rated capacity of the Manitou when on sloping ground. e) The tyre size, ply rating and pressures for the Manitou duty were not shown. f) The in-service wind speed for each configuration was not shown. 10 Again, it was noted in the Agreed Statement that with the exception of the failure to show the in-service wind speed for each configuration, the various failures to comply with AS 1418-2002 set out above also constituted failures to comply with AS 1418.5-1995. Compliance with AS 1418.5-1995 in the supply of a crane is prescribed by cl 122 of the Occupational Health and Safety Regulation 2001. 11 Referring to the risk, it was stated that: The risk associated with using plant in the way it was being used at the site is well recognised. Australian Standard AS 2550.5-2002 Cranes, hoists and winches—Safe use Part 5: Mobile cranes ("AS 2550.5-2002") specifically states that when travelling with a suspended load a mobile crane should avoid traversing across a slope. AS 2550.5-2002 also contains a diagrammatic illustration proscribing the set-up of a mobile crane in the manner the defendant permitted the Manitou to operate. The predecessor of AS 2550.5-2002, AS 2550.5-1993 Cranes-Safe use Part 5: Mobile and vehicle-loading cranes ("AS 2550.5-1993") also identified the risk. AS 2550.5-1993 is incorporated into the Workcover industry Code of Practice Technical Guidance . 12 After describing alternative means of supplying concrete to staircase 5.1 that were available, the Statement proceeded to address other matters that contributed to the risk: A safe work method statement had not been devised for the construction of staircase 5.1 such that would have ensured that the use of the Manitou was safe. Barclay Mowlem had in place a SWMS for the operation of the Manitou ("the SWMS"). This SWMS identified the tipping of the machine as a potential hazard in its operation with a jib attachment. The control measures prescribed by the SWMS included ensuring that the machine was operated on a level surface. On 15 January 2005 the Manitou was operated by James on a slope of 8.2 degrees. James failed to check the spirit level indicator and later commented that he did not regard such a step as necessary. The SWMS provided that "all inductees must, before operating the Manitou, sign off that they have read and understood the Manufacturer's Operators Manual". Davis, Barclay Mowlem's supervisor at the site, had not read the SWMS. The operator's manual in respect of the Manitou did not show the allowable slopes or load charts for the Manitou as configured on 15 January 2005. As at 15 January 2005 James had read only some of the operator's manual. Subsequent to the accident on 15 January 2005, Barclay Mowlem revised the SWMS for the operation of the Manitou. The revised SWMS deals in specific terms with the activity step of travelling with a load. It provided as follows: Always travel with the load facing uphill when travelling with a load on a longitudinal slope (ie. ramp). Tilt correction must be used when travelling on side slope. The machine must not travel on side-slope beyond the tilt-correction capacity of the machine (ie. the bubble on the spirit level in the operator's cabin must always be between the two black lines). James received no instruction or training from the defendant about how to go about his duties at the site in the safe operation of the Manitou. James was issued with certification to operate the Manitou on 1 September 2004 pursuant to training paid for by the Defendant. He had operated the Manitou under supervision for a period of about one –and-a-half to two months prior thereto. During most of the time that James operated the Manitou it was fitted with a forklift attachment rather than a crane jib. James estimates that as at 15 January 2005 he had driven the Manitou between half-a-dozen and a dozen times configured in the manner that it was on that day. Davis had no experience operating a Manitou crane. He held no certificate of competency to operate such a crane and was unaware of its capabilities and limitations. The defendant did not provide any direct supervision of James' performance of work whilst operating the Manitou. Such supervision was left to Barclay Mowlem. James had no single supervisor from Barclay Mowlem—the supervisor would vary depending on where on the site James was operating the Manitou at any particular point in time. It was not uncommon for James to have multiple varying supervisors on any given day. The sales representative and workplace health and safety officer of the defendant, Dominic Barrett, visited the site from time-to-time. Mr Barrett states that he visited the site on 30 September 2004, 13 October 2004, 28 October 2004, 8 November 2004, 24 November 2004, 15 December 2004 and 12 January 2005. At no time did the defendant inspect or arrange for an inspection for any purpose of the Manitou before the incident. The defendant was aware that James was performing duties involving the operation of the Manitou. The conditions of hire in force between Barclay Mowlem and the defendant did not require Barclay Mowlem to submit to the defendant safe work method statements for the work to be undertaken by the defendant's employees. The conditions of hire did not require Barclay Mowlem to provide anything to the defendant to demonstrate that the Manitou was safe when used. 13 The Statement noted that the defendant had no prior convictions. Other evidence 14 Other evidence presented by Mr R Reitano of counsel for the prosecutor was a 19-page Serious Incident Technical Report prepared by Mr Bill Chachaty, an Engineer with the WorkCover Authority and dated 17 March 2003. In his summary of findings Mr Chachaty stated: The Telehandler overturned because the sum of the lateral moments … exceeded the sum of the stabilising moments…. Factors that created this unsafe situation include the following: a. The unsuitability of the Telehandler for the task for which it was intended. b. the restricted space in which the Telehandler was required to operate. c. The positioning of the longitudinal axis of the Telehandler at a substantial angle to the longitudinal axis of the ramp. d. The inability to use the stabilisers. e. The inability to use the Telehandler level correction mechanism. 15 For the defendant, Mr M J Walsh of counsel read seven affidavits: · Gregory John Lindores, Managing Director, Executive Officer and shareholder of the defendant since 1998, · Justin Michael King, the defendant's Recruitment and Training Manager, · Kerri Jennifer Gossling, the defendant's Chief Financial Officer, · Peter McDonald Watt, the defendant's Safety Manager, · Dominic John Barrett, the defendant's Workplace Health and Safety Officer (up to July 2007), · Cuneyt Cosyan, the defendant's Safety Officer and Sales Manager, · Ry Collins, the defendant's Human Resources Manager. 16 In addition, Mr Walsh tendered three lever-arch folders of material which related to the following subject matters: · General documentation including a plan of the site and Linddales' current standard terms and conditions · Mark James employment documents · Post James' incident documents · Rehabilitation documents · Linddales' documents dealing with safety that applied at the time of the incident · Safety Committee documents · Linddales' training documents - post incident · Linddales' safety documentation · Safety performance measures · Linddales' safety reference material. 17 Mr Gregory Lindores provided some further oral evidence in addition to that set out in his affidavit. The focus of his evidence related to the aftermath of the incident involving Mr James and the steps taken by the defendant to improve its policies, procedures, systems, workplace culture and staffing in the area of occupational health and safety. 18 Mr Lindores stated in his evidence: As a consequence of ongoing consideration of the James Accident, and also the results of the Review, I realised that notwithstanding Linddales' efforts to be focused on OH&S, Linddales could not ensure the workplace health and safety of its workers if the host-employers and those in control of the labour hire sites were not committed to high standards of safety. I have identified this to be one of the unique OH&S challenges for labour hire businesses such as Linddales. As a consequence, Linddales has implemented a strategy where the most important factor that I consider when deciding whether to submit a tender for a job is whether that host employer client has a demonstrated commitment to high standards of workplace OH&S. I determine this by: a) discussing with the potential client's representative Linddales' expectations on OH&S and their OH&S systems and procedures; and b) reviewing their OH&S documentation and systems including relevant SWMS documents. If I am not comfortably convinced that the potential client has a focus on and commitment to workplace OH&S and that its systems and procedures are sound, Linddales will not tender for the job. Consequently, Linddales no longer works with clients who are not committed to OH&S. 19 Ms Gossling's affidavit dealt with the following matters: · Size of Linddales' operations. Ms Gossling described the firm as a small to medium sized enterprise employing some 205 labour hire employees and 15 office staff in January 2005. Those figures fluctuate from time to time. · System for reporting of workplace injuries. Ms Gossling noted that: From November 2005 to June 2007, Linddales lost time injury frequency rate ('LTIFR') has decreased from 36 to 16 per million hours worked for those employees working in the Northern NSW/ Queensland Region. From November 2006 to June 2007, Linddales LTIFR has decreased from 38 to 31 per million hours worked for those employees working in the Southern NSW Region. Linddales consolidated LTIFR for the year ended 30 June 2007 was 21 per million hours worked. This is below the (most recent statistics of the) Queensland construction industry average for 2005/2006 which was 22.25 and below the New South Wales construction industry average for 2004/2005 which was 21.3... These statistics are monitored regularly at Safety Committee meetings. · Linddales' investment in safety. Since January 2005, Linddales has expended over $500,000 on improving and upgrading its systems and facilitates on the following: a) Wages and related expenses associated with creation of a new permanent positions being Linddales' Safety Manager and Recruitment and Training Manager - $267,745.51 b) Increased costs associated with providing safety training to Linddales' employees - $68,955.69 c) Increased costs of new personal protective equipment - $160,114.90 d) Costs associated with the purchase and installation of Linddales' new employee safety database, FastTrack - $11,497.91. 20 Mr Barrett's affidavit dealt with the following matters: · pre-accident practices and plan of Barclay Mowlem site. · Mark James' accident details and incident reports. · pre-accident deficiencies identified. · Review and changes in Linddales' OHS post review. · Safety Committee. · Details of proactive approach to safety, Stop Work Orders, employee OHS empowerment. · New Safety Systems – (i) SLAMM (Stop Look, Assess, Make, Manage). The purpose of "SLAMM" is to train employees to go through the process of identifying hazards, assessing risks and taking action for their day to day tasks so that they are empowered to control matters affecting their own health and safety and that of their fellow workers. In addition to receiving training on SLAMM, Linddales' employees were and are given a pocket notebook which they are to carry with them at all times while on site. The pocket notebook contains pages for each employee to complete "SLAMM" risk assessments. To encourage Linddales' Employees to actively use the "SLAMM" process, they were and are asked to complete SLAMM assessments each week and submit these with their timesheets. (ii) Employee Hotline. The purpose of the "Hot Line" was for employees to contact Mr Barrett on his mobile phone 24 hours a day to report incidents and to discuss safety issues. Depending upon the nature of the call, he would then take the appropriate action to deal with the concerns of the employee. In relation to the Hotline, Mr Barrett said: I estimate that I received approximately 20 to 25 calls from employees on the "Hot Line" each day at the time I ceased employment at Linddales in 2007. Of those, approximately half related to direct safety issues such as changes to duties, safe work method statements and personal protective equipment. I have found that Linddales promoting the "Hot Line" was successful in getting its employees to identify hazards and risks, to contact me to discuss safety issues and to foster a team approach to risk management at worksites. (iii) Employees job role limits. Following the James Accident, and after the meetings of the Safety Committee, a policy was put in place to ensure the safety of Linddales' employees by limiting them to jobs and work that they were trained and qualified safely to perform. (iv) Increased training staff. Justin King was hired as full time recruitment and training manager. (v) Complete review of Linddales' Safe Work Method Statements ('SWMS'). (vi) Change in method and nature of site inspections. In this respect Mr Barrett stated: As part of my standard practice after the James Accident, I conducted regular Safety Observation and Audits of each worksite to identify hazards and assess the level of risk to Linddales' employees (" Site Inspections "). I conduct these inspections at each new site and then on an average of every three weeks with each site having an inspection at least once a month. … If I identified hazards or unacceptable risks while visiting a site and completing the checklist, I record them on the checklist and then took immediate and appropriate action to ensure that the risk is reduced or eliminated. For example, this will include a cessation of work on site if safety issues are not addressed satisfactorily. (vii) Certification system for plant and equipment including Personal Protective Equipment. The Linddales' Terms and Conditions for the hire of its employees by host employers require Linddales' customers to ensure that any and all equipment which might be used by Linddales' employees is safety checked and certified on a monthly basis. If a piece of equipment did not have a current certification certificate, the customer's safety officer was informed that Linddales' employees were not to use the item of plant or equipment and Linddales' employees were instructed not to use it until notified otherwise. (viii) New safety systems roll out and co-ordination. The new safety system was rolled out across the whole of Linddales' operations. (ix) Changes and implementation of Linddales' new OHS systems likely to prevent accident similar to Mark James' occurring today. In this respect, Mr Barrett stated: After the accident there was also a strong focus and a push from the Linddales' Board on safety and this filtered down throughout all levels. This support and commitment to safety enabled me to make improvements in Linddales' safety systems without management resistance. This cultural safety push from the Board also showed Linddales' Employees that Linddales was committed to safety and this also encouraged employees to be pro-active in taking a role in safety. In my view, Linddales' commitment to safety and its improved safety systems and procedures would avoid an accident similar to the James Accident from occurring today. 21 Mr Watts' affidavit dealt principally with the defendant's current safety practices and programs, including the following: (i) Safety committee meetings, (ii) authority to prevent unsafe work practices, (iii) Hot line, (iv) identifying change in labour hire job role, (v) induction training, (vi) Safe Work Method Statements ("SWMS") for each job-site where its employees are placed and for updating same, (vii) site inspections, (viii) plant and equipment and PPE, (ix) ongoing review, references for updating, (x) revised Safety Plan October 2007. Mr Watt stated: … cultural commitment to OH&S…focus on ensuring that all Linddales employees receive comprehensive and continuous safety training and regular re-fresher training in all aspects of safety which are relevant to their jobs … through this training that Linddales employees … will also better understand their role and be empowered to assess the risks, identify the hazards relating to their tasks and manage the risks as they arise. 22 Mr Cosyan, who is responsible for employees working in New South Wales south of Ballina, described the steps taken to improve the defendant's policies, procedures, systems and workplace culture in occupational health and safety. 23 Mr King's duties included providing the defendant's employees who work in northern New South Wales and Queensland with their initial safety induction and manual handling training. He had a central role in the assessment, redesign and introduction of the new training and the validity of employee risk management/safety systems. He has also been responsible for setting up and keeping up to date, Linddales' recruitment database system known as "Fast Trak". Fast Trak provides a digital record of all employee details and is used specifically to record each employee's safety information such as their qualifications, the training they have undertaken, the training they require and the personal protective equipment with which they have been issued. 24 Mr King also reviewed and updated Linddales' Induction Handbook and assisted Peter Watts with reviewing and updating Linddales' Safe Work Method Statements. Mr King developed and implemented a training schedule for all employees for the financial year ending 30 June 2008. The 12 Month Schedule involves each employee completing training on the following topics: · Risk Assessment: using Linddales OH&S protocols set out in its SLAMM Program; · Slips, Trips and Fall; · Angle Grinders; · Ladders; · Sprains and Strains Prevention; · Jackhammers and Manual Handling Refreshers; · Basic Hand Tools and Risk Assessment Refresher; · Electrical Awareness and Slips, Trips and Falls Refresher; · Scaffolding and Angle Grinding Refresher; · Oxyacetylene and Sprains and Strains Prevention Refresher; · Laser Levelling and Jackhammer Refresher; and · Vehicle Awareness and other miscellaneous refresher training. 25 In respect of training records, Mr King stated: Every employee of Linddales now has: · a physical personnel file in hard copy; and · a digital personnel file in Fast Trak. The system works in this way: After each employee completes their Induction Training, I file their completed and signed Induction Questionnaire in their physical personnel file as a record that the Induction Training has been completed. I also record that the employee has completed their Induction Training and aspects of the training under the 12 Month Schedule in Fast Trak. As a double check, I have prepared an excel spreadsheet which sets out the names of all employees and the training they have undertaken. Approximately once a fortnight, I check the excel spreadsheet against Fast Trak to double check what training has been completed. If any Employee has not completed the required training, I arrange for that to be done immediately. Mr King was also responsible for six monthly internal audits to check that all employees had undertaken the required training. 26 Mr Collins, in his affidavit, described the rehabilitation program undertaken by Mr James. He stated: Throughout September 2005 and October 2005 Mark's return to work was gradually increased to six hours per day for four days per week performing a combination of office duties and light cleaning and yard duties in Linddales' crane yard. Until 17 February 2006, Mark continued his employment with Linddales (on light duties), when Linddales received notification from Mark's treating General Practitioner that he was unable to return to work in the construction industry. From that time Premier Rehabilitation organised for Mark's ongoing rehabilitation and vocational retraining to be facilitated by CRS Australia and CGU directly. As part of that retraining Mark told me that he was then enrolled in Responsible Service of Alcohol and Gambling by CRS Australia to reskill as a club attendant. Recently I spoke to Mark to see how he was going and he told me: "I completed the course and I am working at Seagulls Leagues Club at Tweed Heads as a club attendant." Consideration 27 The offence involved, not uncommonly, a risk to the health and safety of an employee of a labour hire firm in circumstances where the employee was working at a construction site controlled by the host employer and under the supervision of the host employer. 28 At the time the risk arose, Mr James was operating a non-slewing mobile crane. He had been trained and certified to operate the crane although he had only driven the crane between 6 and 12 times configured in the manner that it was on the day of the incident. On the second concrete pour the crane toppled over because its positioning across the slope of the ramp with an elevated kibble, weighing 1100 kilograms in aggregate, transferred the centre of gravity of the crane beyond its lateral tipping axis. 29 The charge to which the defendant pleaded guilty alleged that the defendant failed to ensure the crane provided for use by Mr James, was safe and without risk to his health. The litany of the crane's deficiencies has already been described. The crane failed comprehensively to meet nationally accepted standards for its safe operation. 30 The defendant knew that Barclay Mowlem had provided Mr James with training to operate the crane and had funded that training. The defendant knew that Mr James was performing duties involving the operation of the Manitou. However, the defendant did not inspect or arrange for an inspection of the crane, for any purpose, prior to the incident. Nor did the defendant require from Barclay Mowlem that it submit to the defendant safe work method statements for the work to be undertaken by the defendant's employees. The conditions of hire of the defendant's employees did not require Barclay Mowlem to provide anything to the defendant to demonstrate that the Manitou was safe when used. 31 Thus, the position was that although the defendant knew that Mr James was operating the crane, it did not know the condition of the crane and whether it could be used safely and without risk because it did not inspect the crane, it did not supervise Mr James whilst he was operating the crane, and it did not otherwise know whether the crane was safe when used because the defendant did not require Barclay Mowlem to advise it in that respect. 32 The defendant either disregarded completely its duty to ensure the safety of its employee, Mr James, or it was relying to a significant degree on Barclay Mowlem to ensure that the crane provided for use by Mr James, was safe and without risk to his health. On the evidence, I prefer the latter interpretation. But as the Full Bench observed in Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 456: A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe. 33 In the present case, the defendant clearly failed to take positive steps to ensure that the work Mr James was doing did not present risks to health and safety. As Mr Walsh properly conceded, that failure was a serious breach of the defendant's duty to ensure safety. The defendant's passive approach to safety left Mr James exposed to a serious risk. Mr Walsh contended, however, that a relevant consideration as to sentencing was the concept of the relative responsibility (or the degree of culpability) as between Linddales and Barclay Mowlem that have been examined by the Court of Appeal in civil cases for breach of common law duties, such as TNT Australia Pty Ltd v Christie and Others (2003) 65 NSWLR 1 per Mason P at [27], [96] and [68] (referring to Drake). See also WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 per Walton J, Vice-President at [61] and the authorities set out therein. 34 As to relative culpability, Mr Walsh referred to the following: · Barclay Mowlem's foreman, Mr Davis, conceived and supervised the system of work due to which Mr James was injured, not having read the SWMS for the Manitou; · the relevant plant was supplied by Barclay Mowlem (albeit Linddales breach to be proactive to inspect and ensure its safe operation); · Barclay Mowlem had the hour by hour direction and control of Mr James on the Saturday morning, and adopted an improvised and novel work method without a SWMS. 35 One has to be careful about assessing arguments relating to relative culpability. The assessment of penalties for breaches of the Occupational Health and Safety Act is not concerned with apportionment as between two employer tortfeasors, which was an issue before the Court of Appeal in TNT v Christie. Rather, it involves an assessment of the objective and subjective factors relevant to the particular offence and based on that assessment using the instinctive synthesis approach to sentencing, prescribing a penalty at an appropriate point on the scale between zero and the maximum provided by the legislation, in the context of an absolute liability offence. 36 On the evidence in these proceedings it is apparent that Barclay Mowlem's conduct had the effect of placing Mr James at risk, that is the risk of injury from the crane toppling over. However, the question is whether I should regard the defendant's criminality as somehow reduced (and therefore attracting a lesser penalty) because of Barclay Mowlem's conduct. 37 There may be circumstances where the action of another party unquestionably mitigates the seriousness of a defendant's failure to ensure safety. Take this example: assume the defendant had specifically required Barclay Mowlem, as it subsequently did, to regularly have a qualified person check the plant to be used by the defendant's employees and to certify it was safe and met legal requirements, and Barclay Mowlem had failed to carry out that obligation. It would have been eminently arguable that because of Barclay Mowlem's conduct in failing to meet the defendant's specific safety instruction, the objective seriousness of the offence was significantly less that it otherwise would have been. 38 However, what must be borne steadily in mind in the circumstances of this case is that Mr James was an employee of the defendant whose non-delegable duty to its employee was to ensure his safety. The fact is that the risk was most unlikely to have eventuated in the first place if the defendant had taken the steps that it did to protect its employees following the incident. For example, it was contended that Barclay Mowlem supplied the deficient plant thereby contributing to the risk. But it was always open, indeed incumbent upon the defendant, before Mr James used the crane, for it to inspect the crane to ensure the Manitou did not present a risk. Had this been done, and a proper risk assessment carried out, it is most unlikely the risk would have arisen. 39 I have approached the question of the defendant's culpability on the basis of the foregoing considerations. Nothing I have said, of course, is a pronouncement on the guilt, culpability or otherwise of Barclay Mowlem in relation to the incident on 15 January 2005. That will be determined according to the charge and on the evidence in separate proceedings. 40 Whilst the defendant's breach was undoubtedly serious, this is not a case where the defendant had no regard for the safety of its employees. There were policies and procedures in place to protect employees. The defendant's mistake, in my view, was that it placed too much reliance on the host company to look after the defendant's employees. 41 A further consideration in assessing the objective seriousness of the offence is the extent to which the risk was foreseeable. As the defendant conceded, that the risk was foreseeable was evident from the training documents completed by Mr James when he gained his Manitou operator's ticket in September 2004. 42 The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence: See Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke (1999) 92 IR 8 at 27; WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, 25 February 1994); and, Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. Alternative means of supplying concrete to staircase 5.1 were the use of a slewing, telescopic boom-type mobile crane equipped with a hoisting winch; the use of a boom-type concrete placing unit; the use of a concrete pump coupled to a concrete line; and the use of the Manitou as configured on 15 January 2005 but approaching staircase 5.1 from an angle which positioned the Manitou in the basement area. 43 General and specific deterrence are further considerations to be taken into account: Capral Aluminium Ltd v WorkCover Authority (2000) 49 NSWLR 610 at [71] to [80]. The defendant conceded that a component of the penalty must take into account general deterrence mindful of the prevalence of labour hire organisations and the need to "send a message" to employers generally and labour hire companies specifically. However, it was contended that the unusual series of events leading to Mr Davis instructing Mr James to use the Manitou in the curious and unsafe manner in which he did suggested that a recurrence was not likely to be frequent in the industry generally. 44 Any penalty would not simply be fixed to deter employers from using mobile cranes in a particular "curious and unsafe manner", but rather to deter them from using mobile cranes, or any other plant, in any way that was unsafe. It is appropriate for the Court to fix a penalty that has regard for the need for general deterrence. 45 As for specific deterrence, the Full Bench in Capral Aluminium observed at [77]: In sentencing, a Court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender … or because the offender will not have the opportunity to commit a similar offence in the future… However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. At least where the offender continues to be an employer, risk to safety or its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may incur both by omission and omission. Employers are required to maintain constant diligence and take all practical precautions to ensure safety in the work place. 46 Given, in particular, the measures implemented by the defendant to improve its occupational health and safety arrangements after the incident involving Mr James it is most unlikely the defendant would re-offend. I have, therefore, attached little weight to specific deterrence. 47 The Court is required to give careful attention to maximum penalties because, firstly, the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick: See Markarian v R (2005) 215 ALR 213 at [31]. The defendant has no previous convictions under the relevant legislation. Accordingly, the maximum penalty in this case is $550,000. 48 There are a number of factors that are required to be taken into account in mitigation. The first is that the defendant has pleaded guilty at an early stage to the charge. The penalty will be discounted accordingly. 49 A further subjective consideration is the steps that the defendant took to prevent a recurrence of the risk. I have summarised many of the steps earlier in this judgment. I am moved to comment that what the defendant has done to improve its occupational health and safety systems and procedures and workplace culture is most commendable and provides an example for others to follow, particularly employers in the labour hire industry. 50 The defendant has no previous convictions and has a good record as a labour hire business in the construction industry, which is a notoriously dangerous industry. The Court also accepts the defendant is a good corporate citizen. 51 The defendant has manifested its contrition and remorse through the entry of a plea of guilty on the charge and cooperation with WorkCover. Mr Greg Lindores gave evidence in his capacity as a director of Linddales as to his personal sorrow and remorse at the circumstances leading to the breach of the OHS Act and, in particular, Mr James' injuries. Most importantly though, the defendant's contrition is evident from the attention the defendant gave to Mr James' rehabilitation and the support the company provided to him throughout his period of rehabilitation. 52 Whilst the subjective factors favouring the defendant must have the effect of mitigating any penalty to a significant degree, what cannot be lost sight of is the objective seriousness of the offence and the weight that must be accorded to that factor in fixing the penalty. Having regard to all of the circumstances, I consider an appropriate penalty is $80,000. Orders 53 The Court makes the following orders: (1) The offence is proven and a verdict of guilty is entered. (2) The defendant is fined an amount of $80,000 with a moiety thereof to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment. ___________________________ 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.