Industrial Relations Commission of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Ching) v Exo Pty Ltd t/as Tibby Rose Auto [2006] NSWIRComm 28 PROSECUTOR WorkCover Authority of New South Wales PARTIES: DEFENDANT Exo Pty Ltd t/as Tibby Rose Auto FILE NUMBER(S): 5013 of 2001 CORAM: Marks J CATCHWORDS: OH&S Act - penalty - finding of guilt - no prior convictions - objective seriousness of offence - general and specific deterrence - additional expenditure required to comply with OH&S legislation - expression of remorse - steps taken to prevent future incidents - fine imposed. LEGISLATION CITED: Fines Act 1996 s 6 Occupational Health and Safety Act 1983 s15(1) CASES CITED: Inspector Ching v Bros Bins Sytsems Pty Ltd, Inspector Ching v Exo Pty Ltd t/as Tibby Rose Auto [2004] NSWIRComm 197 HEARING DATES: 28/06/2005; 06/02/2006 DATE OF JUDGMENT: 02/23/2006 PROSECUTOR Mr R Reitano of counsel Solicitor: Ms R Parmegiani WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Solicitor: Mr K Spencer Spencer, Whitby & Co Solicitors JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Thursday 23 February 2006 Matter No IRC 5013 of 2001 INSPECTOR BARNABAS CHING v EXO PTY LTD t/as TIBBY ROSE AUTO Prosecution under s.15(1) of the Occupational Health and Safety Act 1983 JUDGMENT RE PENALTY [2006] NSWIRComm 28 1 In a judgment published on 9 September 2004, the defendant, Exo Pty Ltd trading as Tibby Rose Auto, was found guilty of a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act") following a prosecution by Inspector Barnabas Ching of the WorkCover Authority of New South Wales ([2004] NSWIRComm 197). I shall not repeat the factual circumstances which led to the bringing of the prosecution and which were relied upon as relevant to the finding of guilt. 2 I repeat, however, the findings which I made against the defendant, which are contained within paragraph [44] of my judgment: "[44]… As to Exo Pty Ltd I find that on 22 November 1999: 1. That on that day there was employed by it Matthew Whitehouse, Darryn Targett and Robert Vrbanc. 2. That at that date the defendant carried on the business of auto electrical repairs from premises at 591 Gardeners Road Mascot. 3. That on that date the defendant was engaged to carry out certain work on a 1977 Nissan Diesel Hydraulic pneumatic rear-loading hook lift truck whose registration was "WBISH", such truck being provided to it by the defendant, Bros Bins. 4. That the defendant failed to have in place a system requiring its employees to ensure that the raised jib of the truck was properly secured so as to allow the servicing work to be carried out safely. 5. That the defendant failed to ensure that a safety prop or some other means of support was provided and used to enable the upraised jib to be secured in the event that the pneumatic hooks should fail or otherwise cease to have effect. 6. That the defendant failed to ensure that the cabin was secured in a safe manner so as to avoid the pneumatic lever being moved either accidentally or intentionally by any person or by any object coming into contact with it. 7. That the defendant failed to put in place a system providing for the instruction, training and supervision of employees in and about the safe practice of supporting a raised item of equipment while an employee was working under it. 8. That as a result of these matters, Matthew Whitehouse was placed at risk of injury and suffered fatal injuries that day. 9. That the defendant thereby failed to ensure the health, safety and welfare at work of its employee, Matthew Whitehouse, contrary to s 15(1) of the Act." 3 So much of the proceedings as were concerned with penalty were conducted on the basis that the defendant had no prior convictions, and that it had cooperated fully with the WorkCover Authority of New South Wales in connection with its inquiries following the incident. 4 The defendant adduced oral evidence from its sole director, Clifford George Boulton, and certain documentary material was tendered into evidence. 5 In a judgment dealing with penalty in connection with the defendant Bros Bins Systems Pty Ltd ([2005] NSWIRComm 226) I observed that "…the incident was 'freakish' in that it occurred only because the lever which operated the pneumatic system was moved inadvertently or otherwise accidentally. Nevertheless, the defendant is obliged under the Act to take measures to avoid that risk. The question of foreseeability does, however, play some part in the assessment of the overall culpability of the defendant…". These observations apply also to the defendant in these proceedings. 6 In the course of submissions the defendant emphasised the fact that it had no expertise in connection with the hydraulic operations of the vehicle upon which work was being carried out and that it relied on the statement made by the driver of that vehicle, an employee of Bros Bins Systems Pty Ltd, to the effect that the locking mechanism was in place. In addition, the defendant emphasised that there had been no prior incidents of any similar kind involving similar vehicles in support of a contention that foreseeability was somewhat remote. 7 However, as against this, it must be borne in mind that this defendant as an employer is required by the Act to utilise such foreseeability as should reasonably be exercised to avoid any risk to injury which might be sustained by an employee. The failures of the defendant in this regard are those which were the subject of the findings earlier made by me, which I have set out above. 8 The starting point of the fixing of an appropriate penalty is the objective seriousness of the offence. It is quite clear from the circumstances in which this incident occurred, which are outlined in my previous judgment, that there was a real and obvious risk of injury if the raised section of the vehicle collapsed whilst the defendant's employee was working underneath it. In the circumstances in which this incident occurred, and having regard to the findings which I have made, I regard this as being a serious offence when viewed objectively. Furthermore, when fixing penalty I shall take into account both the need for general deterrence and the need for specific deterrence which apply to this defendant, albeit that this has been tempered somewhat by the professed acknowledgment by Mr Boulton of the obligations of the defendant in this regard. 9 It was the evidence of Mr Boulton that, having regard to the size and structure of the jib, in order to adequately secure it, it would have been necessary to either utilise a crane brought on to the premises especially for this purpose, or to erect some form of steel frame to attach to the jib whilst extended. It was said that the cost of doing this would have made undertaking the job prohibitively expensive. In response to this it should be pointed out that cost is not a feature of adherence to the obligations created by the Act. If the only means of ensuring compliance with the defendant's obligations would have involved the expenditure of monies, by way of example, in bringing in a crane for the specific purpose, then this would be a matter for negotiation between the defendant and its customer, Bros Bins. If the job could not be undertaken safely without this expense, then it should not have been undertaken at all. Obviously compliance with occupational health and safety legislation will in most cases involve some form of additional expenditure. Nevertheless, that expenditure has to be measured against the cost involved in the consequences of injury and death in workplace accidents. 10 It was the evidence of Mr Boulton that he was suffering from ill health and that the incident and its consequences had an adverse impact on his health. Medical evidence filed in support of this claim indicates that Mr Boulton does indeed suffer from a number of serious medical conditions, some of which have been exacerbated by the stress of the court proceedings as well as the stress which, not unnaturally, followed the death of the defendant's employee. I acknowledge that the payment of the fine which will be imposed upon the defendant will add to Mr Boulton's stress but, unfortunately, this is an inevitable consequence of the breach by the defendant of its obligations under the Act. Other than this general acknowledgement, I doubt on my understanding of the authorities that I can take Mr Boulton's state of health into account when fixing penalty. Certainly, I have not been taken to any authorities which would dictate that some other approach is permissible. 11 Some evidence was led in a very general way concerning the financial resources of the defendant. However, no specific submission was made as to the appropriateness of considering any of the provisions of the Fines Act in this regard and in these circumstances there is no necessity for me to consider this aspect further. 12 I propose to take into account in fixing penalty the expression of remorse made by Mr Boulton on behalf of the defendant and the cooperation extended by the defendant with the inquiries conducted by the prosecutor. Furthermore, it would seem that the defendant has an appreciation and understanding of its obligations under the Act and has taken reasonable steps to ensure that this will not occur in the future. 13 Having regard to all of these matters which may be taken into account by way of mitigation, and having regard also to the objective seriousness of the offence involving, as it did, the death of an employee, I propose to fix a penalty in the sum of $90,000. In this regard I note that the defendant, not having pleaded guilty, is not entitled to any consideration in this regard. This penalty is fixed by reference to a maximum available penalty of $550,000. In fixing this penalty I have borne in mind also the quantum of the fine imposed against the defendant Bros Bins Systems Pty Ltd. 14 For completeness I note that the prosecutor sought a moiety of the fine and costs. No submissions were made by the defendant in opposition. 15 I make the following orders: 1. The defendant is found guilty of the offence charged and convicted accordingly. 2. The defendant is fined the sum of $90,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor assessed by the court in default of agreement. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.