Industrial Court of New South Wales CITATION: Inspector Ching v Hy-Tec Industries Pty Ltd and Ors [2010] NSWIRComm 73 Inspector Barnabas Ching (Prosecutor) PARTIES: Hy-Tec Industries Pty Ltd (Defendants in 08/399 and 08/400) Lejah Pty Ltd (Defendants in 08/402 and 08/403) Simpson Design Associates Pty Ltd (No 2) (Defendant in 08/404) FILE NUMBER(S): IRC 399, 400, 402, 403 and 404 of 2008 CORAM: Haylen J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1), s 8(2), s 11(1)(a), s11(1)(b) - sentencing - three defendants charged arising out of same workplace fatality - two defendants enter plea of guilty - one defendant found guilty in contested proceedings - offences arise at varying times - different roles played by each defendant - motorised gates installed at factory at end of construction phase - manual operation necessary from time-to-time due to failure of gate motor - non-employee assists in manual closure of gates - gate leaf passes end of supporting portal and becomes unsupported - gate falls on non-employee inflicting fatal injuries - failure to provide stops for manual operation of gate - steps not specified or required by structural steel designer or fabricator or operator of gates - discussions of need for all relevant facts to be established in sentencing multiple defendants arising from same incident - serious offence established - general and specific deterrence - totality - parity and consistency in sentencing - subjective factors - consideration of Victim Impact Statements - fines imposed LEGISLATION CITED: Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704 Inspector Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213). Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 Inspector Vierow v Catholic College Lismore Ltd t/as Trinity Catholic College Lismore [2009] NSWIRComm 128 Lowe v The Queen (1984) 154 CLR 600 at 610 CASES CITED: Morrison v Powercoal Pty Ltd and anor (No 3) (2005) 147 IR 117 Newcastle Wallsend Coal Co Pty Ltd and ors v Inspector McMartin (2006) 159 IR 121 Postiglione v The Queen (1997) 189 CLR 295 R v Thomson; R v Houlton (2000) 49 NSWLR 38 WorkCover Authority (NSW) v Denson (2007) 162 IR 199. WorkCover Authority of New South Wales (Inspector Mansell) v Ove Arup Pty Ltd [2006] NSWIRComm 240 HEARING DATES: 27 May 2010; 28 May 2010 DATE OF JUDGMENT: 9 June 2010 Mr S Crawshaw SC with Ms McDonald of counsel (Prosecutor) WorkCover Authority of New South Wales Mr M Harmer, Solicitor (Defendants in 08/399 & 400) LEGAL REPRESENTATIVES: Harmers Workplace Lawyers Mr J Sexton SC with Mr D Caspersonn of counsel (Defendants in 08/402 & 403) Lee & Lyons Lawyers Mr I Neil SC with Mr Moorhouse of counsel (Defendant in 08/404) Kennedys JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J Wednesday, 9 June 2010 Matter No IRC 399 of 2008 INSPECTOR BARNABAS CHING v HY-TEC INDUSTRIES PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 400 of 2008 INSPECTOR BARNABAS CHING v HY-TEC INDUSTRIES PTY LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 MATTER NO IRC 402 of 2008 INSPECTOR BARNABAS CHING v LEJAH PTY LTD Prosecution under s 11(1)(a) of the Occupational Health and Safety Act 2000 MATTER NO 403 IRC of 2008 INSPECTOR BARNABAS CHING v LEJAH PTY LTD Prosecution under ss 11(1)(a) and 11(1)(b) of the Occupational Health and Safety Act 2000 MATTER NO 404 of 2008 INSPECTOR BARNABAS CHING v SIMPSON DESIGN ASSOCIATES PTY LTD (No 2) Prosecution under s 11(1)(a) of the Occupational Health and Safety Act 2000 JUDGMENT [2010] NSWIRComm 73 1 On 14 October 2003, Ms Melissa Maybury lost her life in extraordinary circumstances. On that day Ms Maybury attended a concrete batching plant operated by Hy-Tec Industries Pty Ltd ("Hy-Tec") at Mascot. Ms Maybury had arranged to drive home Mr Jason Sheath, an employee of Hy-Tec, who was, amongst other things, responsible for closing the gates to the site. Mr Sheath experienced difficulties closing the bi-sliding metal gates on the western side of the premises. The electronic system used to close the gates had failed and so Mr Sheath disengaged the motor and commenced to manually close the gates. In trying to move the western leaf of the western gate, Mr Sheath experienced difficulties in moving that gate by himself. This difficulty had occurred previously and Mr Sheath had been given the benefit of assistance in order to manually close the gates. On this occasion, Ms Maybury came to the assistance of Mr Sheath in manually closing the gate. At the time that Mr Sheath was attempting to close the western leaf of the western gate, the eastern leaf of that gate was still in the open position. In the course of Mr Sheath and Ms Maybury attempting to manually close the western leaf, they pulled the western leaf, the front edge of the gate leaf, past the mid-point of the driveway and the gate moved out of its supporting portal and fell on Ms Maybury causing her fatal injuries. The metal gate was nearly 11m long and over 2½ metres wide. The weight of the western leaf of the western gate was approximately 1340 kgs. 2 Following a Coroner's Inquiry, Inspector Ching commenced proceedings alleging breaches of the Occupational Health and Safety Act 2000 by a number of corporations in relation to Ms Maybury's death. Simpson Design Associates Pty Ltd ("SDA") was charged with a breach of s 11(1)(a) of the Act; Hy-Tec Industries Pty Ltd was charged with a breach of s 8(1) and s 8(2) of the Act; Lejah Pty Ltd (t/as Sunstate Consulting and Engineering) ("Lejah") was charged with a breach of s 11(1)(a) and s 11(1)(b) of the Act. 3 SDA was a structural engineering firm that provided the structural steel design for the framework of the gate to be operated at the concrete batching plant. Hy-Tec operated the concrete batching plant located at Mascot, once it was constructed. Lejah was the company that designed and supplied the general mechanical equipment for the concrete batching plant and that company fabricated and supplied the steel components and running gear for the gates. 4 There were other corporations and individuals who were not the subject of charges alleging a breach of the Occupational Health and Safety Act, that, nevertheless, played some role in the events surrounding the fall of the gate in October 2003. Hannas Civil Engineering Pty Ltd ("Hannas") provided construction management services for the Mascot concrete batching plant project. Mr Darren Stratti was Hannas' on-site supervisor at the Mascot concrete batching plant project. LSM Projects Pty Ltd was a company that provided resources to Hannas to enable it to carry out its construction management role at the site and Mr Peter Twomey, a civil engineer, was employed by LSM. Mr Twomey's services were provided to Hannas and he acted as project manager for the project. Magic Door Industries Pty Ltd ("MDI") supplied and installed the operating equipment for the gates. Mr Andre Khoury was MDI's sales representative dealing with the installation of motors for the operation of the gates at the site. 5 On the fourth mention of the matter before the Court, SDA entered a plea of not guilty to the alleged breach of s 11(1)(a) of the Act. On the fifth occasion that the Hy-Tec prosecution was listed before the Court, a plea of not guilty was entered to both the s 8(1) and s 8(2) charges and the matter was listed for hearing over three weeks in the period July - August 2009. On the ninth occasion, in late July 2009, when the matter was before the Court, Hy-Tec altered its pleas and entered pleas of guilty. On the fourth occasion that the Lejah matters were before the Court, pleas of not guilty were entered in relation to the s 11(1)(a) and s 11(1)(b) breaches of the Act and a hearing over three weeks was set down for the period July - August 2009. In mid-May 2009, Lejah altered its pleas of not guilty and entered pleas of guilty to the two charges. On 15 December 2009, the Court delivered judgment in the SDA matter, finding that the charge as particularised had been established and that SDA was guilty of a breach of s 11(1)(a) of the Act. (See Inspector Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213). 6 The sentencing of SDA, Hy-Tec and Lejah was conducted at the same time over two hearing days. A significant amount of material going to the facts surrounding the design, fabrication and installation of the gates was tendered in all cases. 7 In view of the fact that the submissions on sentence were heavily focused on issues of relative culpability and parity, it is appropriate to set out the particulars of charge in relation to each defendant. In charging Simpson Design with a breach of s 11(1)(a) of the Act, Inspector Ching alleged that, between 3 September 2001 and 24 June 2002, the company designed plant in the course of a trade, business or other undertaking, namely plant related to gates (referred to as "gate plant") for use by persons at work which it failed to ensure was safe and without risk to health when properly used. The particulars of the charge were: (1) The defendant designed the gate plant by making and/or issuing drawings of the gate plant. (2) The issued drawings were contained in Drawing No 1047-S4.00 Revisions D and E. (3) The defendant designed the gate plant for the concrete batching plant being constructed by Bonfoal Pty Ltd at 294-296 Coward Street Mascot in the State of New South Wales ( premises). (4) During 2003 the concrete batching plant was operated by Hy-Tec Industries Pty Ltd ( Hy-Tec) at the premises. (5) The gate plant was installed on the western side of the premises (west gate). (6) The gate plant was used by employees of Hy-Tec at work. (7) At all material times Mr Jason Sheath was an employee of Hy-Tec. (8) At close of business, if Mr Sheath was the last employee at the premises, part of his duties included closing the gates to the premises. (9) At the close of business on 14 October 2003, Mr Sheath attempted to close the western leaf of the west gate. The electronic system to close the west gate failed to operate and Mr Sheath began to close the western leaf of the west gate manually. (10) Mr Sheath was assisted in closing the western leaf of the west gate manually by Ms Melissa Maybury. (11) Whilst Mr Sheath and Ms Maybury were trying to close the western leaf of the west gate manually, the western leaf passed through the midpoint of the gate opening and out of its portal, falling on Ms Maybury and causing her fatal injuries. (12) There was a risk of the western leaf of the west gate falling on either Mr Sheath or Ms Maybury. (13) The gate plant was not safe and without risks to health when properly used. (14) The defendant failed to include in the design any or any adequate devices to prevent the western leaf of the west gate falling during manual operation. (15) By reason of the defendant's omissions persons were at risk of being injured (including fatally injured) whilst they were operating the west gate manually. (16) On 14 October 2003 Melissa Maybury was fatally injured and Jason Sheath was placed at risk of injury as a result of the defendant's omissions 8 Hy-Tec Industries Pty Ltd was charged with breaches of both s 8(1) and s 8(2) of the Act. The s 8(1) charge alleged that, on 14 October 2003 at Mascot, Hy-Tec failed to ensure the health, safety and welfare at work of all its employees and in particular, Jason Sheath, contrary to s 8(1) of the Act. The s 8(2) charge alleged that, on 14 October 2003 at Mascot, Hy-Tec failed to ensure that people other than its employees, namely, Melissa Maybury, were not exposed to risk to their health and safety arising from the conduct of the defendant's undertaking whilst at the defendant's place of work contrary to s 8(2) of the Act. The particulars of both charges were substantially the same with the differences reflecting the statutory context in which each charge arose. It is sufficient for present purposes to set out the particulars in relation to the s 8(1) breach: 1. At all material times the defendant's undertaking was the manufacture and supply of pre-mix concrete. As part of its undertaking the defendant operated a concrete batching plant at the premises. 2. At all material times the defendant was an employer. 3. At all material times the defendant employed Mr Jason Sheath. 4. At all material times Mr Sheath worked at the premises. 5. The defendant controlled the premises. 6. At close of business, if Mr Sheath was the last employee at the premises, part of his duties including closing the gates to the premises. 7. At the close of business on 14 October 2003, Mr Sheath attempted to close the bi-sliding metal gate on the western side of the premises ( west gate) . The electronic system to close the west gate failed to operate and Mr Sheath began to close the western leaf of the west gate manually. 8. Mr Sheath was assisted in closing the western leaf of the west gate manually by a non-employee of the defendant, Ms Melissa Maybury. 9. Whilst Mr Sheath and Ms Maybury were trying to close the western leaf of the west gate manually, the western leaf passed through the midpoint of the gate opening and out of its portal, falling on Ms Maybury and causing her fatal injuries. 10. There was a risk of the western leaf of the west gate falling on either Mr Sheath or Ms Maybury. 11. The defendant failed to provide and/or maintain adequate devices and/or systems to prevent the western leaf of the west gate falling during manual operation. 12. The defendant failed to undertake an adequate risk assessment of the manual operation of the west gate. 13. The defendant failed to provide and/or maintain a safe system of work for the manual operation of the west gate. 14. ... 15. The defendant failed to ensure that the plant was safe and without risks to health of employees in that the defendant failed to ensure any adequate devices to prevent the western leaf of the west gate falling during manual operation. 16. As a result of the omissions of the defendant Mr Sheath was placed at risk to his health and safety. 9 Lejah Pty Ltd was ultimately charged with breaches under s 11(1)(a) and (b) of the Act. The s 11(1)(b) charge related to a period between 17 June 2002 to 21 November 2002 where, at the Hy-Tec Mascot premises, Lejah supplied plant in the course of trade, business or other undertaking, namely, plant related to gates for use by persons at work and failed to provide or arrange the provision of adequate information about the plant to persons to whom it was supplied to ensure its safe use. Lejah was also charged pursuant to provisions of s 11(1)(a) over the same period and at the same premises in relation to the manufacture of plant for use by persons at work in circumstances where it failed to ensure that the plant was safe without risk to health when properly used. The particulars in relation to the failure to provide adequate information are set out below and again were largely repeated in relation to the manufacturing charge with the only differences relating to the statutory context in which the charge was laid. The relevant particulars were: 1. The defendant manufactured and supplied the gate plant for the concrete batching plant being constructed by Bonfoal Pty Limited at 294-296 Coward Street Mascot in the State of New South Wales ( (premises). 2. The defendant fabricated the gate plant. 3. The defendant arranged for the gate plant to be delivered to the premises. 4. The gate plant was assembled, erected and/or installed by the defendant on the western side of the premises (west gate) . 5. During 2003, the concrete batching plant was operated by Hy-Tec Industries Pty Ltd (Hy-Tec) at the premises. 6. The gate plant was used by employees of Hy-Tec at work. 7. At all material times Mr Jason Sheath was an employee of Hy-Tec. 8. At close of business, if Mr Sheath was the last employee at the premises part of his duties included closing the gates to the premises. 9. At the close of business on 14 October 2003, Mr Sheath attempted to close the western leaf of the west gate. The electronic system to close the west gate failed to operate and Mr Sheath began to close the western leaf of the west gate manually. 10. Mr Sheath was assisted in closing the western leaf of the west gate manually by Ms Melissa Maybury. 11. Whilst Mr Sheath and Ms Maybury were trying to close the western leaf of the west gate manually, the western leaf passed through the midpoint of the gate opening and out of its portal, falling on Ms Maybury and causing her fatal injuries. 12. There was a risk of the western leaf of the west gate falling on either Mr Sheath or Ms Maybury. 13. The defendant failed to make available any or any adequate information as to the risks to health and safety in relation to using the gate plant. 14. The defendant failed to make available any or any adequate information as to the gate plant only being suitable for automatic operation. 15. The defendant failed to make available any or any adequate information to warn persons about the risk of using the gate plant manually. 16. By reason of the defendant's omissions, persons were at risk of being injured (including fatally injured) whilst they were operating the west gate manually. 17. On 14 October 2003 Melissa Maybury was fatally injured and Jason Sheath was placed at risk of injury as a result of the defendant's omissions. In relation to the manufacturing charge, these matters were also particularised: 12 The gate plant was not safe and without risk to health when properly used. 13 The defendant failed to erect, install or assemble plant with any or any adequate devices to prevent the western leaf of the west gate falling during manual operation. 14 By reason of the defendant's omissions, persons were at risk of being injured (including fatally injured) whilst they were operating the west gate manually. 10 The hearing of the evidence on sentencing, involving three separate corporate entities and the fact that corporate entities not charged would be the focus of submissions as to relative culpability, led to a general discussion as to the way in which the evidence should proceed. The hearing in relation to the three corporate entities charged with offences were heard concurrently. The charges were framed differently: SDA being charged with a design based breach; Lejah being charged with a supply of plant with inadequate information and a manufacture of plant breach but not a design breach; and, Hy-Tec not being charged with a design or manufacturing breach but with a failure to provide a safe system of work in relation to the operation of the gate. These differences inevitably had some impact upon the way the evidence surrounding the charges potentially could affect defendants in a different manner. During case management of the sentencing hearing, the Court made it clear that, to the extent that there would be Agreed Statements of Fact, every attempt should be made to ensure that the facts were consistent as between the defendants, especially those facts that would affect more than one defendant. The Court was informed that the prosecutor had gone to some lengths to ensure that the Statement of Agreed Facts in relation to the Hy-Tec and Lejah matters were consistent with no material differences between them and the evidence for the SDA matter, where the relevant parts of the evidence were primarily taken from the contested proceedings that were the subject of the decision delivered by the Court on 15 December 2009. These proceedings, involving a number of corporate entities, emphasise the importance of the Court being able to proceed upon the firm basis of established facts relevant to all the breaches, thus avoiding the intolerable position of the Court being faced with material facts agreed in one set of proceedings not being agreed or being agreed to on a different basis in relation to other defendants in relation to the same incident. EVIDENCE FOR THE PROSECUTION 11 After considerable discussion between the parties as to the way in which the evidence would be received, the Court directed that the evidence as to the facts of the design, manufacturing and safe system of work charges would be evidence in all cases but that evidence going to subjective factors would be evidence in each individual case. In this context the prosecutor tendered two folders of documents. The first folder contained 30 documents including: the approved development application for the concrete batching plant at Mascot; drawings relating to the project; various letters, notes and facsimiles passing between the defendants and the project manager and others; SDA drawings; Sunstate drawings for Hy-Tec regarding sliding gates; correspondence from Magic Door Industries Pty Ltd regarding the proposal to supply motorised gates and the scope of works for MDI and a MDI service report and other correspondence; statements and factual reports of WorkCover Inspectors together with a number of photographs depicting the plant, the gate and the surrounding area, including the holding portals; an engineering report; Hy-Tec's hazard identification and risk assessment for manually operating the gates at Mascot dated October 2003; and, a prior conviction certificate indicating that Hy-Tec had a conviction for breach of s 8(1) of the Act dealt with in June 2009 by the Industrial Court leading to the imposition of a penalty of $180,000. The second prosecutor's folder contained eight documents, including statements of persons involved in the process that ultimately led to the supply and installation of the gates at the plant together with Hannas' site report and correspondence from the project manager. 12 Of the documents tendered by the prosecutor, the following matters should be mentioned: (a) by letter dated 28 May 2002, Hannas Civil Engineering wrote to Mr Rea of Sunstate Consulting and Engineering ("Lejah") concerning the Mascot plant project, directing Sunstate to undertake additional works described in attached documents. Attached was a description of the scope of the works. Para 1.2.5 dealt with entrance gate works, with the following description of the work: The contractor shall provide two sets of 10 metre opening and one set of 18m opening gates, bottom angles for tracks, portal frames and new bolts, supply and fit carry/running wheels and vertical support wheels/guides on portal frames, unload and erect on bottom tracks and H.D. bolts provided by the contractor (built in by others). All to be as detailed in the architectural and structural drawings and specifications in clause 1.4.1. Para 1.4.1 of the document referred to drawings and contained specifications that included SDA's drawings numbered M1047-S4.00, being miscellaneous steel work, itself being a reference to the gate specifications; (b) on 23 May 2002, Mr Andre Khoury, technical and sales consultant for Magic Door Industries Pty Ltd ("MDI") wrote to Hannas knowing that the company had been selected to supply products for the project at the Mascot site. The scope of works dealt with the equipment necessary to motorise the gates and that involved gate motors, safety light beams, logic controls, relays, 38m of sliding gate rack, Digi pads and the installation of that equipment, including cable and conduits. Extra safety light beams were recommended by MDI as additional equipment. The inclusions noted were: all cable and conduit aboveground; logic control and access control systems; photo electric and commissioning. Excluded was the 240 volt power supply and all cable and conduit below ground. The scope of work to be performed by MDI stated that MDI would supply, fabricate, deliver, install and commission the goods at the Mascot site. The detailed scope of works included MDI providing the operating equipment for two twin-sliding gates as illustrated on drawings identified as M1047-S4.OO and to provide operating equipment for one, two-sliding gate as illustrated on the same drawing. MDI was to install the opening equipment to the gate, fence and concrete works (supplied by others) and was to install and commission the gates. The gate steel work was to be supplied by others unclad, and once installed the gate was to be clad in Colorbond sheeting in accordance with the architect's detail. The control system was to be designed and installed using a digital Access Pad system mounted externally and internally to each gate and in the control room. Full details of the proposed pad system were to be submitted to the Superintendent for approval. The operational parameters of the gate opening and closing system and safety devices were to be submitted to the Superintendent for approval. The operating equipment was defined as the equipment necessary to automatically operate the gates and included but was not limited to: gate motor drive and accessory; gate horizontal roller guides and brackets; gate mechanical gears, tracks and fittings; gate vertical rollers, axles, brackets and fittings; gate operating control system including all equipment, cabling and control devices; and, operation and maintenance manual. The operating equipment did not include the supply and installation of the cast in track across the driveway and the steel gate frame cladding and support portals; (c) by facsimile dated 14 November 2002, Mr Khoury of MDI notified Mr Twomey of Hannas that the gates at the Mascot Street site had no physical stop when in the closed position, a situation he described as being "very dangerous" as they were bi-sliding gates and if they were operated manually, they would slide out all the way up past the portals and fall down. He described that as being a very dangerous situation as the gates were heavy and could cause death or very serious injury. He very strongly recommended installing gate stops as soon as possible. This communication occurred immediately after a gate leaf had fallen during the course of installation by MDI; (d) on 16 December 2002, Mr Khoury of MDI wrote to Mr Twomey of Hannas regarding the Mascot Street site and stated that, after visiting the plant, he found the need to reiterate the recommendation he had made in his facsimile of 14 November 2002. In this letter, Mr Khoury noted that the bi-sliding gates at the site had no physical stops in either their opened or closed position "which are mandatory, especially on such heavy gates". He stated that the stops had to be strong enough to handle the momentum of the weight of the gates. At the present time the motors were holding/stopping the gates from sliding out but if the bi-sliding gates were ever operated manually or the motor's limits failed, the gates would slide out from their portals and would fall out due to their weight and would cause a great deal of damage, including a fatality. The letter concluded: MDI can't stress enough the seriousness and the importance to have these gate stops installed as a matter of urgency and as soon as possible. If you need to discuss the above matter any further please do not hesitate to call me. (e) On 17 December 2002, Mr Twomey of Hannas forwarded a facsimile to Mr Khoury of MDI referring to his letter of 16 December 2002. Mr Twomey said that the sliding gates currently had been fitted with physical stops to prevent them from sliding out of the support portals in their closed positions and they were installed in November 2002. Physical stops were to be added to each gate leaf in their open positions to prevent them from sliding out of the portals in the other direction; (f) Mr Keith Rowe's statement indicated he was engaged as an estimator by Lejah Pty Ltd t/as Sunstate Consulting and Engineering. During 2002, the company was involved in the construction of the Mascot concrete plant with Hannas Civil Engineering managing the project. He had been contacted by Mr Twomey to price the construction of six sliding gate frames portals and bottom tracks to suit two ten metre opening and one eighteen metre opening gate. Neither the drawings nor the specifications referred to the need for stops to be fitted to the gates to prevent them from being removed from their positions within the portals and Mr Rowe had no discussion at any stage with Mr Twomey in relation to that issue. In February 2002 Mr Rowe prepared another estimate relating to the supply of running and stabilising wheels, unloading the truck on arrival at the plant, positioning 12 portals and for standing the gate frames on their tracks. Once the order was approved, Mr Rowe had a draughting service prepare proper workshop drawings from the original drawings prepared by Simpson Design Associates; (g) a statement was taken from Mr Jason King, a boilermaker employed by Sunstate. In 2002, he was employed by Sunstate on the Mascot concrete plant. Mr Twomey had arranged with Mr Rea from Sunstate to supply the gates, portals, anchors and tracks that were to be fabricated at Sunstate's Brisbane factory and shipped to Mascot where they were to be installed by others. The tracks and anchors had to be installed before the concrete for the driveways and crossings could be laid but Mr King did not recall any of the Sunstate crew being involved with installation of the tracks and anchors and he understood that Mr Stratti arranged for that work to be done by others. On delivery, assistance was given for the unloading of the gate frames with the largest pair of gates for the western driveway being placed on their tracks to get them out of the way, an arrangement agreed to by Mr Stratti. Mr King did not recall anyone from Sunstate's workforce being involved in erecting the portals but the portals for the western gates were positioned and the Sunstate workforce arranged for the crane on site to lift the large frames onto the tracks; (h) by letter dated 21 November 2003 directed to Inspector Ching, Mr Twomey of Hannas advised that the entrance gates were installed in October and November of 2002. The gates had been manufactured, delivered and installed by Sunstate and delivered to the site in late September 2002 and erected in October and early November 2002 with the electrical control mechanism being installed by MDI in mid-November 2002. A copy of the site diary confirmed that the gates were erected in position by Sunstate; (i) in February 2004, Inspector Ching interviewed and took a statement from Mr Robert Proctor who, on 14 October 2003, was employed by Hy-Tec as the project manager. He had been working for Hy-Tec as a project manager for six and a half years and described his duties and responsibilities as maintaining the existing concrete plant and the new project. Mr Proctor stated that, during the commissioning of the gates in mid-November 2002, one of the gate leaves fell. On arriving at the site he was informed by an employee of Hy-Tec, Mr Gary Manns, that one of the gate leaves fell during installation. Mr Proctor spoke to the site foreman who told him that they had temporary stops on the far western and the central set of gates as the foreman was waiting for MDI to install the drive. Mr Proctor stated that, prior to the accident, it was just accepted that the stops were suitable as a temporary measure but after the accident, it could be seen that they were unsuitable; (j) Mr Gary Manns provided a witness statement indicating that he had a forklift crane and frontend loaders driver's ticket. He spoke of the installation of gates at the Mascot project and recalled coming onto site one day and noticing one of the gate frames lying on the ground. This occurred when MDI were on site installing the motors for the gates. The gate on the ground was the western leaf of the middle gate. He discussed with an unidentified person the fact that, on the previous day, the gate had fallen and recalled that someone mentioned to him that they were going to put stops on the gates. He was not asked to do anything or agree to anything: he was told what to do by "Darren and Bob". He recalled MDI being engaged in installing the motors on site for approximately one week and they had two or three people to perform that task. He saw MDI weld the drive track onto one gate but he did not see them attach the motors. Mr Manns said he was not really involved in any issue about the gates but was involved in other matters concerning the plant. Mr Manns said MDI had not provided him with any paperwork in relation to the operation of the gates and he was unaware of any paperwork provided to anyone else from Hy-Tec. Once MDI had installed the motors, a person from MDI gave him a demonstration and verbal instructions on the operation of the gates using a key and also manual operation. He could not recall the name of that person and while in the course of discussing manual operation, he could not recall anything being said at that time about stops. It was explained to him that the gates were to be pulled to approximately the middle and then were to be placed close together. He provided verbal instructions to three other persons on how to automatically and manually operate the gate and he gave those people code numbers to operate the gates using the digital pads. The manual operation of the gate involved turning a key to unlock the bottom gear and that would disengage the gear motor from the track cogs. The gates could be moved to a closed position when this occurred. He gave instructions to the effect that if those persons needed to close the gates to just pull them out to the middle. Once this occurred the gear cogs would re-engage and the gate could not be moved; (k) a statement was provided by Mr Darren Stratti, since deceased. He described his involvement in the design, construction and installation of the three sets of bi-sliding gates at the Hy-Tec plant at Mascot and co-ordinating the installation. He was present when the mechanical component was erected and when part of the electrics had been finished but he was not present when the Digi pads and the electrics were completed. He said that "the agreed physical stops on the gate leaves were not completed and minor adjustment was required on the gates". Mr Stratti said that Sunstate was conducting the installation and at the time he left the site, there were three stops on top of the gate leaves. Two were attached on the western gate on both gate leaves. One stop on the middle gate and the eastern gate leaf on the western gate were welded but the western gate leaf on the western gate was bolted. 13 The prosecutor also tendered a schedule containing extracts from the Coroner's transcript relating to the evidence of Mr Proctor. At the Inquest Mr Proctor said that, on first hearing that the gates had fallen, Mr Manns had told him why that had occurred. The following day Mr Proctor spoke to Mr Stratti but did not give him instructions but Mr Stratti passed some information to him. Mr Stratti told them that "they" had placed temporary stops on the gates. Mr Proctor understood that the stops had already been installed by that time. When Mr Proctor next visited the site he did not look at the gates. Mr Stratti did not tell him that, when the gate fell, there were workmen around the gate and that it was a dangerous situation and somebody could have been injured or killed. It had never entered Mr Proctor's mind that the gates could fall over and could hit someone. On his trips to the site, Mr Proctor had never examined the gates to see how they worked. Mr Stratti had told him that the gate had fallen during the installation. He did not understand Mr Stratti to be critical of the workmen who had been working on the gate when it fell. Mr Stratti told Mr Proctor that he was placing temporary stops on the gate to rectify the problem. Mr Proctor thought he was going to place temporary stops on all gates. Mr Proctor's understanding was that Mr Stratti was waiting for MDI to install the motors but he did not explain why there were temporary stops. He believed Mr Stratti was saying that, once the mechanical motors were installed, they did not need the stops and that was Mr Proctor's belief. Mr Proctor had accepted that the stops installed were a temporary measure and they were to stay while waiting for the motors and there would not be an accident because of stops once the gates had been commissioned and installed with the motors. He did not believe that the stops would be there forever and a day as a prevention. His understanding was that, once the gates were motorised, there would be some form of mechanical stop that would render unnecessary for the welded or bolted stops to remain on the gates. When asked what was the basis of his understanding, he replied that it was just something that he thought would occur. He did not have discussions with Mr Twomey or Mr Stratti about the stops and their role. After the commissioning of the plant and when it went into operation, the temporary nature of the stops was something that he had not raised with the new plant manager because, in his mind, the stops were redundant. When involved in the conversation about temporary stops, Mr Proctor had not raised the issue of permanent stops or when they would be installed or who might install the stops. 14 In relation to the guilty pleas entered by Hy-Tech and Lejah, Agreed Statements of Fact were tendered in each case. The Agreed Statement of Facts in each case is almost identical except for the identity of the defendant and the particulars of the charge. It was only in the Hy-Tec matter, however, that there was an Agreed Statement that the defendant had fully and actively co-operated with WorkCover throughout the investigation. This statement did not appear in the Agreed Statement of Facts tendered in Lejah's case. With those variations understood, the Agreed Statement of Facts in the Hy-Tec case appears as an annexure to this judgment. 15 In relation to SDA, the parties relied upon the evidence tendered in the contested proceedings. It is to be noted that, despite the contested nature of those proceedings, there was significant agreement to a number of pertinent facts. Those facts are set out in [6] in the SDA case and cover approximately 13 pages and nearly 70 paragraphs. Those matters are not repeated here. On the sentencing hearing, the prosecutor also tendered against all parties the expert report and supplementary report of Mr Colin Simpson, a professional engineer. EVIDENCE FOR SIMPSON DESIGN ASSOCIATES PTY LTD (SDA) 16 For the purposes of the sentencing hearing, Mr Andrew Simpson, the sole director and secretary of Simpson Design Associates Pty Ltd, swore an affidavit dealing with the nature of the company, its safe work systems and its approach to the work performed by the company. He described SDA as a specialised structural engineering practice with clients including architects, builders, developers, project managers, government and owners. A company profile described the company as being a medium sized firm that had been involved in a variety of high profile projects throughout Australia. The profile spoke about the experience of the firm, how the latest computer software assisted its economic structural approach, the design process and documentation programme, the fact that the firm worked closely with builders and architects and other design disciplines as an involved member of the design team and that the company possessed an extensive understanding and knowledge of the building process. The current staff of SDA was comprised of 16 members described as follows: one equity director (Mr Simpson); two technical directors (Mr Hadley and Mr Baty); two associate directors; two senior engineers; three design engineers; five CAD technicians; and, one administrative staff member. In 1999, the company had commenced providing structural engineering services in the building and construction industry and apart from the accident involving Ms Maybury, had never been involved in any accident or safety incident related to any feature of the design or practice of the company. Mr Simpson estimated that the company had performed structural engineering consultancy work in relation to approximately 2,500 construction projects ranging from domestic home renovations to the construction of apartment blocks and large public buildings. The present annual turnover of the company was approximately $1.9m. 17 Mr Simpson's affidavit evidence, to a significant degree, focused upon his description of the company's role on a project as a structural engineering consultant and provided an overview of the design and construction process. In this section of the affidavit, Mr Simpson emphasised that SDA invariably operated as a structural engineering consultant in a project design team that was usually comprised of various consultants and specialists, the consultants on any project covering various disciplines including various branches of the engineering profession. Co-ordination of the work of the project design team was normally carried out by a project manager/design manager or on smaller projects, by the architect taking the role as lead consultant. Mr Simpson stated that SDA had never been involved in a project as lead consultant, design manager or project manager and on larger or medium projects, the company always worked under either a project manager or lead consultant in the role of structural engineering consultant. 18 The project manager or lead consultant on a project was responsible for the co-ordination of the design process including: client liaison; preparation of the overall project brief; briefing of the relevant consultant; co-ordination of information flow between members of the design team; and overall co-ordination of the project documentation. Within that framework, a structural engineering consultancy such as SDA was usually asked to provide a fee proposal for specialised structural engineering services required for the project. 19 Mr Simpson spoke about projects being split into two phases, namely, the design and documentation phase (the design phase) and the construction phase (the construction phase). During the design phase of a project SDA provided design and documentation of the structural elements it had been engaged to engineer (for example columns, beams, floor slabs and the like). Other disciplines carried out the same function in their respective specialist field being a professional or trade expertise. The information flow was controlled and co-ordinated by the project manager or lead consultant who was responsible for combining the results of the work performed by each of the specialists within their discipline. It was not usual for the requirements of other disciplines of consultants to affect the design of the structural elements carried out by SDA. Mr Simpson gave examples of this aspect in operation. Although it did not occur in relation to the design of the gates at Mascot, usually as the design proceeded, the flow of information was ongoing between all members of the design team until documentation of all the consultants across the various disciplines was co-ordinated and the overall design incorporated the requirements of the brief. Some elements of the project may be procured via "design and construct" process by the builder during the construction phase or by specifying proprietary items that have not been designed or detailed by any member of the design team. When a proprietary item was specified it was usually indicated in the documentation prepared by members of the design team to relate how the elements fitted into the final arrangements. It was common for structural engineers and other consultants to indicate items not within the scope of their design to assist other consultants in relation to the information supplied in order to better enable other disciplines to read and understand their drawings for the purpose of undertaking their work. Following completion of their documentation the project would be tendered and the builder appointed. 20 During the construction phase, the design was ongoing as various sub-contractors were engaged and their requirements were fed back to the design team. This may call for the design to be modified and/or checked by members of the design team acting on the instructions of the project manager or lead consultant. As the structural engineer on a project, SDA would usually be asked during the construction phase to confirm various matters relevant to the structural elements that it had engineered and Mr Simpson gave some examples. In relation to the Mascot site, SDA did not receive any request during the construction phase to confirm or consider any aspects that might affect the design of the structural elements of the gates. During the construction phase on any project the co-ordination process and the flow of information from the sub-contractors to the design team was controlled by the builder. Most building contracts were administered by a superintendent and commonly that role was filled by the entity designated as project manager or lead consultant during the design phase. Under the contract, usually it was the superintendent who gave instructions to the builder. The superintendent's role was that of co-ordinator of the flow of information between the builder, the builder's sub-contractors and the design team and combining the work of all the disciplines that had contributed to the design. In some projects the builder and the superintendent may be the same entity in relation to the information flow process. 21 Mr Simpson described shop drawings as specialist drawings depicting the actual arrangements to be built. Normally, the only structural components requiring shop drawings were the structural steel elements with the drawings depicting the actual steel arrangement to be built including actual lengths, bolting arrangements, plate sizes and all the information required for a fabricator to manufacture the steel elements necessary for the project, including all elements required by all disciplines whether shown on the structural documentation or not. In relation to the Mascot gates, the shop drawings showed the structural elements of the gates plus other items added by Sunstate. The structural steel fabricator was responsible for the production of the shop drawings. The builder was responsible for providing and co-ordinating all the necessary information to the steel fabricator to allow the shop drawings for any structural steel elements to be produced. It was normal for SDA to receive requests for information to clarify the intent of its design or specific detailing issues. These requests were also issued by the steel contractor for confirmation that the requirements of another sub-contractor/consultant would not affect the integrity of the elements designed by SDA. SDA did not receive any such requests in connection with the preparation of the shop drawings for the structural steel elements of the gates. Requests generated by sub-contractors were normally co-ordinated, controlled and issued by the builder through the superintendent to the design team. The usual practice in the building and construction industry was that, following completion of the shop drawings, they would be submitted by the project manager or lead consultant for review by the relevant consultant in the design team and more than one consultant may need to review the same shop drawings. 22 In relation to shop drawings for structural steel elements, SDA's task was to review and comment on the drawings for compliance with the design intent and general arrangement and sizes of the structural items depicted. Generally, fabrication of structural steel elements would not commence until the shop drawings had been reviewed by all members of the design team having input to the design of the elements concerned. When this occurred, the process was taken to be completed. Such a review of the shop drawings did not occur in relation to the structural steel elements of the gates and Mr Simpson did not consider the process to be consistent with usual or accepted practice. The SDA's practices had been adopted to accommodate this design process. The design process did not occur in accordance with the accepted practice in relation to the gates. After SDA has issued Revision E (for construction) of its steelwork drawings, the company had no further input into the gates nor performed any further work in relation to the gates until after the accident. 23 Mr Simpson noted that, in relation to SDA's safety systems, as a small practice there was no specific occupational health and safety budget or internal policy but the safety of its employees was taken as a serious matter. The safety in the company's designs complied with all applicable standards and building codes and it was noted that the company had never had a workers compensation claim brought against it. Mr Simpson noted that the main safety risks arising from SDA's work were derived from the design and documentation of the structures that the company was engaged to engineer, rather from risks within SDA itself. Since the accident, SDA had adopted the practice of precisely identifying the task they were being asked to undertake and identifying their work and relating it to that of other relevant disciplines such as mechanical engineers. Mr Simpson explained how that approach operated. SDA now specifically excluded items outside the scope of its engineering services or expertise and clearly identified the services that SDA would undertake. If appropriate, SDA drew particular attention to the project manger or lead consultant task or design issues they believed were outside its work but were considered important in relation to safety on the project. Mr Simpson also identified key measures that SDA had in place to mitigate any potential safety risks including employment of high quality staff with relevant qualifications and experience, continuing training and professional development of engineers and CAD technicians, employee involvement in engineering associations, committees and other professional bodies and checking procedures and quality control of design and documentation produced by SDA. These matters were elaborated upon by Mr Simpson and showed the company's involvement through its staff in professional associations, committees and the like. In addition, Mr Hadley had created, prepared or assisted in implementing various risk control strategies within SDA and they were described by reference to annexures to Mr Simpson's affidavit. 24 Mr Simpson also spoke of SDA's good corporate citizenship and pro bono work. As well as actively promoting the role of the structural engineer in the design community, the company made charitable donations each year of up to 1 per cent of turnover and had donated to over 10 identified and well-known bodies. Mr Simpson gave details of the pro bono work performed by SDA. In addition, four references were provided that spoke highly of their professionalism and their attention to safety. On behalf of SDA, a bundle of documents were also tendered covering a variety of matters including contractual arrangements with Hannas at the site, evidence in the contested proceedings, witness statements and correspondence between various parties as well as drawings. EVIDENCE FOR HY-TEC INDUSTRIES PTY LTD 25 In relation to Hy-Tec's case an affidavit was read from Mr Kelvin Tiplady, the regional health, safety environment manger, Victoria, New South Wales and Queensland for Adelaide Brighton Ltd ("Adelaide Brighton"). Adelaide Brighton was described as "the ultimate parent entity" for Hy-Tec. Mr Tiplady had been involved in the management of occupational health and safety for a number of employers since 1995. In his role Mr Tiplady was involved in managing the occupational health and safety aspects at 31 sites in the three States in which he was concerned, including nine sites in New South Wales. In those States there were approximately 375 full-time employees, 130 contractors were engaged in New South Wales as well as 106 lorry owner/drivers nationally with 42 being in New South Wales. 26 Since being appointed to his present role Mr Tiplady had developed and implemented a number of processes, tools and training methods in relation to Hy-Tec's occupational health and safety. These were identified as: the Safety Investigation Tool; Various Work Safe Method Statements; a Review of Concrete Agitator Access; a Driver's Safety Handbook; and, Training packages including a recent Annual Safety Awareness training session and Hy-Tec's Current Safety Plan 2010-2012. He spoke of Hy-Tec's commitment to safety together with that of Adelaide Brighton and spoke of the importance of investigating and learning from incidents. 27 Mr Tiplady knew from his own discussions with senior management of Adelaide Brighton, including its managing director, that the company deeply regretted the accident that occurred on 14 October 2003 at Hy-Tec's Mascot plant and recognised the impact that it had on the families of Ms Maybury and Mr Sheath, friends and Hy-Tec employees who were associated with the incident. Hy-Tec and Adelaide Brighton expressed its contrition in relation to the accident. Mr Tiplady spoke about the response to the accident by senior officers of Hy-Tec and prompt instructions given to provide support for Ms Maybury, Mr Sheath and members of their families as well as the staff. These instructions were supported by the managing director of Adelaide Brighton and senior officers attending the hospital on the evening of the accident and meeting Ms Maybury's family. Hy-Tec paid an advance of $1,800 to Mr Sheath for special leave and paid a further advance of approximately $1,300 as requested; the company assisted Ms Maybury's family by paying all funeral and burial costs and covered all costs associated with the families' attendance at Ms Maybury's funeral at Moruya. Hy-Tec covered all the costs associated with Mr Sheath and his father attending the funeral at Moruya and senior managers also attended that funeral. An account was set up by Hy-Tec to allow employees to easily make donations to Ms Maybury's family and a memorial plaque was attached to the wall alongside the gate at the site of the accident containing wording provided by the family. To assist Ms Maybury's family's healing process, the company assisted them by arranging visits to the Mascot plan whenever they considered it necessary in order to deal with their grief. 28 From information passed to him, Mr Tiplady said that Hy-Tec was the only party involved in the Coronial Inquest that acknowledged responsibility for the accident and actively sought that the Coroner make recommendations to various persons to prevent the recurrence throughout Australia of similar incidents. Those recommendations included requesting the Minister responsible for occupational health and safety to write to Federal and State counterparts seeking appropriate steps to be taken to develop, approve and implement an Australian Standard relating to gate manufacture, automation and safety similar to standards that applied in Europe and the United States. The company also recommended that the WorkCover Authority conduct an information and education campaign in the structural design industry highlighting the need for all gates similar to the gate involved in the accident to have mechanical stops contained in their design regardless of whether or not they were to be automated. It was also recommended that there be an information and education campaign in the gate automation industry, highlighting the importance of that industry not commissioning gates similar to the gates involved in the accident unless they had mechanical stops within their design, regardless of whether or not the gates were to be automated and encouraging the provision of appropriate notice and information to be provided to owners and operators of the site as to the importance of mechanical stops in the operation and maintenance of the gates. 29 In relation to Hy-Tec's business, Mr Tiplady said the company was involved in manufacturing, marketing, distributing and selling pre-mixed concrete in New South Wales but mainly in the Sydney metropolitan area. When the accident occurred, Hy-Tec had been operating in New South Wales for approximately six years, commencing with the opening of the Auburn plant. Adelaide Brighton had acquired Hy-Tec in mid-March 2002 after Hy-Tec's associated company, Bonfoal, had awarded the project management of the construction process to Hannas and only approximately 18 months before the fatal accident. At the time of the accident Hy-Tec employed approximately 27 plant employees, 29 employed concrete agitator drivers at 8 separate plants and offices and engaged approximately 49 contract concrete agitator drivers. The majority of Hy-Tec's operations operated six days per week and involved an average of twelve people at each plant. 30 Mr Tiplady described Hy-Tec as a relatively small producer in the pre-mix concrete market. However, the nature of the working environment of the company required ongoing diligence to ensure that its employees were not injured as a result of the company's operations. Hy-Tec's workplaces contained a number of potential and significant hazards and collectively, if not managed well, could result in serious injury. The workplaces were not limited to Hy-Tec's plants making the work environment all the more complicated to manage. On any given day, a number of the company's employees and contractors would be located at the company's plants, on the road and delivering concrete to customers' work sites. Some of the hazards required to be controlled included: the use of heavy equipment both fixed and mobile in the plant; operation of concrete agitator trucks at customer sites; the maintenance of heavy equipment, fixed and mobile, at the company's plants including confined spaces; electrical safety within the plants and overhead electrical safety on worksites; working at heights both on agitators and at the plant; working with hazardous substances; working in a noisy working environment; and, general traffic management within the plant. 31 Mr Tiplady said that Adelaide Brighton worked "vigilantly" with Hy-Tec since its acquisition to improve its safety performance. Unfortunately, the accident occurred in the initial stages of that improvement programme but since then Hy-Tec had taken substantial steps to improve its safety performance. There were now a low number of workplace injuries and for three consecutive years there had been no such reported injuries. Mr Tiplady expressed the view that, prior to acquisition by Adelaide Brighton, Hy-Tec unfortunately had only basic safety procedures but from the time of acquisition, Adelaide Brighton had been working with Hy-Tec to continually improve safety throughout its operation. This had been achieved in line with Adelaide Brighton's safety, health and environment standard which adopted an integrated risk management approach to safety. A copy of the standard was attached to his affidavit. Examples were provided of the initial stages of the implementation commencing prior to the accident. The steps taken included: addressing green card requirements for the delivery of concrete; attendance at safety courses; training assessments; the adoption of a risk management approach to safety with Hy-Tec addressing hazards that were foreseeable and could result in serious injury; using risk assessment guidelines and checklists, safety committee audit checklists, plant housekeeping policy checklists; and, golden rules for driver training. 32 In 2003 there had been safety audits of the Mascot plant and a safety conference had been conducted by the company. Although not trained in relation to the operation of the gates, Mr Sheath had been given considerable training and the details of that training was provided. Hy-Tec had an active safety committee and its operations were explained by Mr Tiplady. The company operated a corrective action register allowing employees to give written feedback on all draft procedures or issues that arose as potential safety issues at work. Where new and significant hazards came to attention, safety alerts were issued. 33 Following the accident, senior managers attended the site. A prohibition notice was issued by WorkCover on the manual operation of the gate and an improvement notice was issued on the remaining gates until a risk assessment had been undertaken and actions completed. Mr Tiplady understood that Hy-Tec endeavoured to do everything possible to ensure that the accident was not repeated. Steps to achieve that aim included immediately commencing and conducting a full investigation of the circumstances surrounding the accident and doing so at a senior level. The physical incident location was reviewed, all witnesses to the accident were interviewed, a risk assessment was conducted and on 15 October 2003 SDA was engaged to design stops for the gates while another firm was engaged to undertake remedial work by fitting stops to the gates and track runners. A manual operation procedure for the gate was introduced and all Mascot plant staff were trained in the manual operation of the gate. The manual operation procedure required two people to be present and then provided a number of steps to be taken to ensure safe closure of the gates. 34 Hy-Tec had fully co-operated with the WorkCover investigation and regularly assisted Inspector Ching on his various visits to the site and promptly provided him with information relevant to the matters concerning the accident. Hy-Tec's staff co-operated fully in interviews conducted by WorkCover, including interviews with the managing director of Adelaide Brighton. WorkCover was provided with all relevant documentation as requested and during the Coronial Inquiry, WorkCover was given active assistance including the making of recommendations to prevent the occurrence of this type of accident. 35 Mr Tiplady also developed reasons why he held the view that Adelaide Brighton and Hy-Tec had a continuous improvement approach to safety in all its workplaces and referred to a variety of steps taken that supported that conclusion. He also referred to an initiative of the Executive General Manager (Concrete and Aggregates) who last year suggested that, together with Mr Tiplady, they tour each plant and assess a selected area of risk. This occurred in August/September 2009 and all national Hy-Tec sites were attended. Relevant State Managers and on occasions, the Executive General Manager, Human Resources, attended. By this process there had been a systematic, consistent approach to the management of mobile equipment within Hy-Tec businesses that Mr Tiplady described as an "industry benchmark". The process was so successful that the company was in the process of conducting another series of inspections with a broader safety focus, using the inspection checklist tool previously referred to. Adelaide Brighton had an active, broad safety committee with the Managing Director continuing to be personally involved, including following up this unfortunate accident involving Ms Maybury. Reference was also made to Adelaide Brighton and its subsidiaries, including Hy-Tec, actively supporting a number of community organisations and in particular, childrens organisations. EVIDENCE FOR LEJAH PTY LTD (Sunstate) 36 On behalf of Lejah, a folder of some 41 documents was tendered. Those documents included letters and facsimiles passing between Hy-Tec and Sunstate, certain mechanical works contracts, a scope of works for the sliding gates, various site reports, structural design certificate issued by SDA and an extract of ASIC's current and historical company register. The ASIC extract indicated that there were two directors, Mr and Mrs Rea and the principal place of business was at their home address. There were two ordinary shares issued in the company, with Mr and Mrs Rea holding one each. From other evidence before the Court it appears that the Sunstate operation had been taken over by Mr and Mrs Rea's son and was now operating as a separate entity. DELIBERATION Objective Seriousness of Breaches 37 It was accepted by all parties that the primary consideration in setting an appropriate penalty for the offence found to be have been committed was the objective seriousness of the breach. The prosecutor submitted that, following a trial, SDA was found to have contravened s 11(1)(a) of the Act in that it designed plant for use by persons at work and failed to ensure that it was safe and without risk to health when properly used. Lejah had entered pleas of guilty to an offence under ss 11(1)(a) and an offence under 11(1)(b) of the Act while Hy-Tec had entered pleas of guilty to an offence under ss 8(1) and 8(2) of the Act. The pleas of guilty entered by Hy-Tec and Lejah "embraced without demur" their failures as pleaded in each Application for Order and in so doing they had accepted the causal link between them and the risk that arose as a result of the failures particularised. 38 The relevant failure of SDA was that it had failed to include in the design any or any adequate devices to prevent the western leaf of the western gate falling during manual operation. Lejah, in respect of its failure to manufacture safe plant, failed to erect, install or assemble plan without any or any adequate devices to prevent the western leaf of the west gate falling during manual operation. In relation to the offence of failing to provide adequate information about plant, Lejah had admitted that it failed to make available any or any adequate information as to the risk to health and safety in relation to using the gate plant, had failed to make available any or any adequate information as to the gate plant only being suitable for automatic operation and had failed to make available any or any adequate information to warn persons about the risk of manually using the gate plant. By its plea, Hy-Tec accepted that it had failed to provide and/or maintain adequate devices to prevent the western leaf of the gate falling during manual operation; had failed to undertake an adequate risk assessment of the manual operation of the western gate; and, failed to ensure that the plant was safe and without risk to health of employees and non-employees in failing to ensure that there were adequate devices to prevent the western leaf of the western gate falling during manual operation. 39 In assessing the objective seriousness of each offence, a fundamental consideration was the maximum penalty for that offence. In all cases the defendants had no relevant prior convictions, with Hy-Tec's conviction occurring more than two years after the accident involving Ms Maybury and therefore not qualifying as a prior conviction in accordance with the judgment of the Court in WorkCover Authority (NSW) v Denson (2007) 162 IR 199. The maximum fine in each case was therefore $550,000. The prosecutor pointed out that in the Order relating to each offence it was alleged that, by reason of the defendant's omissions, persons were at risk of being injured, including fatally injured while manually operating the western gate. Having regard to the size and weight of the gate and the risk of it falling, the manual operation of the gate represented a very serious risk to health and safety. 40 The prosecutor also submitted that the existence of a reasonably foreseeable risk of injury would necessarily result in the offence being considered as more serious. It was submitted, in that respect, Hy-Tec knew that it was foreseeable there was a danger that the gate might fall. Hy-Tec knew that the gate had fallen in November 2002 and after it came into possession of the premises, there were frequent failures in the automatic functioning of the gates including, most frequently, the western gate. In relation to SDA and Lejah, the prosecutor did not allege that it was known to those defendants that there was a danger that the gate might fall. Rather, it was alleged that they should have foreseen that there was such a danger. This was particularly so given the size and weight of the gates. 41 Attention was drawn to the judgment in Inspector Ching v Simpson Design Associates Pty Ltd at [14] to the following effect: ... It is not to be assumed, for example, that merely because a gate is intended to be motorised in its operation rather than being manually operated that the motorised gate will never have to be manually operated. A motor without a manual override might satisfy the designer that the use of the gate is such that, if for some reason the motor failed, manual operation would not be possible. Proper enquires would need to be made regarding the operation of such a motor. After making the simple enquiry about how the gates were to be moved and finding that a manual override motor would or could be used, the designer, to comply with s 11(1), would either need to advise the client that a stop would be required to prevent the gate from drawing beyond the portal and falling with risk to safety, or, alternatively, specify a stop in the design either as part of the design or to be supplied as a proprietary line. The prosecutor accepted that statement by the Court was made in respect of a design offence committed by SDA but submitted that the same finding could be made and should be made against Lejah with respect to the manufacturing breach. 42 In the SDA judgment the Court had drawn attention to the requirements of the Occupational Health and Safety Regulation 2001 requiring a designer to identify hazards and to assess risks. Similar obligations applied to a manufacturer of plant (cl 100 and 101) and there was a requirement for manufacturers to provide relevant information (cl 105). Quite apart from these matters it was submitted that, if any of the defendants had conducted a proper risk assessment, it would have disclosed the risk that the gate might fall during manual operation. The prosecutor accepted that in the case of SDA and Lejah, the failure to conduct an appropriate risk assessment was not particularised in the charges. The evidence showed that the manufacturing and installation of stops was a relatively easy task able to be completed over a few days. 43 On behalf of SDA, while it was accepted that the penalty must be determined by reference to the nature and qualify of the offence, it was also submitted that a number of features of its offence militated against its objective seriousness. The SDA had not ignored a risk of which it was aware nor had it deliberately failed to address its mind to the relevant risk: rather, the offence was one of honest and reasonable omission rather than an offence of commission or deliberate omission. SDA had designed only part of the gates and was one of a number of participants in the design, manufacture, supply, installation and operation of the gates. Other defendants, as well as Hannas and MDI, had different contributions to the relevant risk but they were all contributing to the same risk. Those contributions had to be taken into account by the Court in assessing SDA's culpability. 44 SDA had taken steps to require that those controlling the overall design of the gates would approve the final design of the steel work for the gates and the company drew attention to the requirements for consultation with mechanical engineers before the design was finalised. SDA had seen its role as being limited to the structural engineering design of the structural elements of the gate but in so doing, it was acting in a manner consistent with the usual practice of structural engineers and was so acting as part of a multi-disciplinary team and thereby contributing to the final design produced by the whole team. It was pointed out that Mr Hadley's evidence was that, in designing the structural elements of the gate for SDA, he had not turned his mind to the manner of operation of the gates because he saw the task he was performing as being independent of the operation of the gates. There was no suggestion in the evidence that Mr Hadley and SDA acted other than honestly in their approach to the task. 45 These submissions for SDA pay insufficient attention to the kernel of the Court's liability judgment that, despite SDA's practice or wider industry practice, it could not go about the task of designing the structural steel elements of the gate without considering the use to which the gate would be put and that clauses of the Regulation required the designer to identify foreseeable hazards that may arise from the design of the plant in, amongst other things, its use. Although SDA has placed a large amount of evidence before the Court on the question of sentence, no explanation has been proffered as to how SDA overlooked the requirements of the Regulation. It was an agreed fact and it was Mr Hadley's evidence that he had attended another premises to investigate the operation of a large sliding gate including conducting an examination of a motor, noting that it was electronically driven. That action by Mr Hadley shows that he was not oblivious to the use to be made of the gate of which his structural steel design was an integral part. While Mr Hadley understood that a motor would control the operation of the gates, Mr Hadley had a document in his brief showing that MDI motors allowed manual operation and in May 2002, before SDA had completed the design, MDI was given the contract to provide the motor. No enquiry was made by or on behalf of SDA about the final motor or the motor options that were available from MDI and evidence from MDI's installation manager was that the motors always allowed for manual release. While SDA has strongly contended that its culpability is at a relatively low level compared to others with duties in relation to the design, manufacture and operation of these gates (matters to which the Court will turn in due course), the circumstances of the matter require a finding that, in the case of SDA, this was a serious breach. 46 Hy-Tec also argued that its relative culpability was low compared to others that bore responsibility in relation to the gate but, nevertheless, was frank and straightforward in accepting and acknowledging that the offences as particularised against it were "serious in nature". In oral submissions the following statement was made on behalf of Hy-Tec: It goes without saying in our submission that the offences of all three defendants are serious. They all relate to failure to undertake because each could have removed the risk of a fatality so we don't step away from that ... As I said at the beginning, in terms of looking at this from the seriousness of each of defendants and hierarchy of control, each of the defendants had the opportunity separate and discrete to take steps which would totally have precluded the risk of fatality so all three defendants face a high threshold of seriousness and we certainly do not step away from that. The Court accepts the prosecutor's submission and that of Hy-Tec as to the serious nature of Hy-Tec's breaches. 47 The written and oral submissions for Lejah did not directly address the issue of the seriousness of the breach it committed but substantially concentrated upon the actual work performed by Lejah and the fact that others, such as MDI, were more directly culpable in relation to the risk of the gate falling because there were no stops installed. It was pointed out that Lejah was not charged with being involved in the design of the gate and it was submitted (and that submission is accepted) that, in relation to the gate, Lejah was engaged as the fabricator but nevertheless it was the manufacture of plant related to the gates under s 11(1)(a). The Court accepts the prosecutor's submission that, obligations similar to that imposed by the Regulation on SDA as the designer of the gate, were also imposed upon Lejah under provisions dealing the manufacture of plant. Lejah, in addition, pleaded guilty to failing to make available any or any adequate information as to the risks to health and safety in relation to using the gate plant and failing to make available any or any adequate information as to the gate plant only being suitable for automatic operation. Further, there was a failure to make available any, or any adequate information to warn persons about the risk of manually using the gate plant. Having regard to these matters, the offences committed by Lejah are serious breaches. Parity 48 In Postiglione v The Queen (1997) 189 CLR 295, the principles of parity and totality were considered by the High Court. In the joint judgment of Dawson and Gaudron JJ, it was noted that parity was a matter to be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability. It had to be recognised that different criminal histories, for example, may justify a real difference in the goal term imposed. It is the application of the parity principle that was the main focus of the submissions for the defendants in these proceedings, with each defendant submitting that greater culpability lay with othersincluding those who had not been charged, such as Hannas and MDI. 49 In relation to the relative contribution of persons other than the defendants, the prosecutor drew attention to a decision of the Full Court of the Industrial Court in Morrison v Powercoal Pty Ltd and anor (No 3) (2005) 147 IR 117 at [123]: Counsel for the corporate respondent relied, in particular, on the decision of Hungerford J in WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [46]: There can be no doubt, in my view, that in determining the culpability of a defendant the role played by other parties is necessary to be considered as part of a review of the total circumstances of the case. However, it cannot, I think, be used to itself reduce the culpability of a defendant in any sharing or proportionate way of an overall penalty but only as a factor assisting in the determination of the real culpability of the defendant for the offence charged. 50 In this context the prosecutor acknowledged that Hannas, as the project manager for the construction of the gates, "could have acted more safely by carrying out a risk analysis of the drawings received from SDA and Sunstate (Lejah) and by ensuring that gate stops were welded on all gate frames, particularly after the incident in November 2002". 51 It was submitted for SDA that in assessing the various participants' relevant culpability, the Court should proceed on the basis that: (a) Hannas and Sunstate (Lejah) each made a significantly greater contribution to the relevant risk than any of the other contributors; (b) Hy-Tec made a lesser contribution that either Hannas or Sunstate (Lejah) but a significantly greater contribution than SDA or MDI; (c) SDA's contribution as found was appreciable but was significantly less than that of Hannas, Sunstate (Lejah) or Hy-Tec; (d) MDI's contribution was probably less significant than that of SDA. 52 In making the submission as to the contribution of others, it was also submitted that the relevant risk particularised against SDA was identical to the risk particularised in the charges against Lejah and arose out of the same factual circumstances or substratum as the risk particularised in the charges against Hy-Tec. Reference was also made to written submissions filed by SDA in the liability proceedings where Hannas' role in providing management services and Mr Twomey's project management role were dealt with in some detail. The wide nature of services provided by Hannas was contained within an unsigned agreement with Bonfoal. In an interview with WorkCover, Mr Twomey had stated that Hannas had control of the construction project and he was the project manager. Hannas co-ordinated the design, construction and installation of the entrance gates. Hannas had engaged SDA and Hannas had taken the work performed by SDA, Lejah, MDI and others and had put them out to tender and so defined the work that each of them was to perform as part of the construction of the gates. Mr Twomey had engaged Lejah to supply the steel components of the gates and had engaged MDI to supply the operating equipment for the gates. Mr Twomey and Mr Stratti had co-ordinated the components to be supplied and the works to be performed by the various contractors. In relation to the design work carried out by SDA, Mr Twomey reviewed the drawings and requested changes and additions he considered appropriate. Mr Twomey approved Lejah's fabrication drawings. The overall evidence made it clear that Hannas and Mr Twomey had responsibility for the design and construction of the entrance gates. This contrasted sharply with the limited role played by SDA who had no contact at all with Lejah or MDI in relation to the gates. 53 It was submitted by SDA to be significant that in November 2002, during the installation of the gates when there was a near miss and a gate leaf fell while MDI were installing the gate operating equipment, at that time Hannas and Lejah became aware of the need to include stops as part of the finished gates. After this incident, in mid-November 2002, MDI's installation manager was told by Mr Stratti that the issue of stops was being addressed with the gate manufacturer and shortly thereafter Mr Stratti told him that stops had been installed. Mr Twomey's evidence was that, shortly after the gate leaf fell during installation, he discussed the installation of stops with Mr Stratti and authorised Lejah to design and install physical stops. While there was no conclusive evidence as to who installed the bolted stop, it was possible that Lejah's contracted fitter may have welded but not bolted the stops at this time. On the evidence there was no doubt that Hannas and Lejah were aware of the need for the stops in November 2002 and should have taken responsibility for the installation of stops on the western gate. SDA was not involved in this episode, was not asked to design or install the bolts and was not informed of the incident. The stops that were installed at this time were inadequate and the bolted stop was described by the expert professional engineer, Mr Colin Simpson, as being "grossly inadequate". Mr Proctor, the project manager for Hy-Tec, had been informed that the temporary stops had been installed and accepted that they were temporary measures. 54 MDI showed Hy-Tec how to automatically and manually operate the gates and those instructions were conveyed to others within Hy-Tec. After the plant was commissioned, Mr Proctor complained that the gates had to be manually operated and MDI thereafter conducted a service call. During 2003, Hy-Tec employees frequently closed the gates manually. It was submitted that there was no suggestion that Hy-Tec conducted any risk assessment of the temporary stops or the manual operation of the gates. The so-called "temporary stops" were not replaced. MDI serviced the gates throughout 2003. 55 In relation to SDA's participation it was again emphasised that theirs was a limited role concerned with the structural elements of the gate. It was submitted that SDA's contribution to the relevant risk was necessarily reduced by the fact that it performed only part of the design of the gate, being part of the design team co-ordinated by Hannas and where running gear and operating equipment were designed and supplied by others. It was also to be taken into account that SDA played no part in the failure to install adequate stops which occurred in November 2002, well prior to the relevant risk arising. Further, it was specifically and expressly envisaged that other designers, including mechanical engineers, would contribute to the final design and it was specifically and expressly envisaged that the design would not be finalised without further consultation between all the designers. SDA was not aware of the ongoing manual use of the gates in the period prior to the relevant risk arising. 56 The control exercised by Hannas and the circumstances already outlined should result in a finding that Hannas made a substantial contribution to the risk that existed in October 2003. Importantly, Hannas had failed to ensure that adequate stops were installed in November 2002 despite arranging for stops to be installed at that time, an action consistent with its role as project manager. 57 In relation to the contribution of Lejah, SDA submitted that it was the mechanical engineers on the project in relation to the design, supply and installation of the gates. Lejah denied that they were the mechanical engineers and pointed out that they were not charged as such. It was submitted that Lejah's fabrication drawings showed additional components of the gates and further details beyond those provided by SDA. Sunstate's fabrication drawings dealt with the wheels and type of rollers to be used on the gates, the number, positioning of the wheels and rollers and the brackets for the wheels and rollers and that was all Lejah's work. These matters all related to the operation or movement of the gates. It was appropriate, therefore, that Lejah also be given the task of providing and installing the stops. Ultimately, Lejah was involved in the installation of the stops and the gates. 58 MDI's role involved being contracted to supply and install the gate operating equipment. It was MDI that specified or selected the gate motor and associated operating equipment to be used in the construction or operation of the gates and they did so without reference to SDA. MDI also regularly attended the Mascot premises throughout 2003 in order to service the gates. The gate operating equipment it had supplied and installed had consistently failed. As a result of these service calls, MDI was aware that the gates were regularly being manually operated. 59 As to Hy-Tec, SDA submitted that the company was aware of the need for stops because of the near miss in November 2002 and they also knew that they were to be temporary stops. It was submitted that Hy-Tec contributed to the relevant risk by failing to take steps to assess the many operations of the gates where that manual operation regularly occurred because of failure of equipment. There was no suggestion that Hy-Tec conducted any risk assessment of the temporary stops or the manual operation of the gates and it was clear that the temporary stops were never replaced. Hy-Tec therefore failed in its responsibilities as an employer and a controller of premises. 60 All of these factors were relied upon to suggest that SDA's role was relatively minor and there were others, better placed and more appropriate to have detected the risk of the gates falling during manual operation and to have appropriate stops added to the gates. 61 It was pointed out in submissions made on behalf of Lejah that the necessary element of the charges in relation to which it had entered a plea of guilty was the failure to provide stops and the failure to provide information about manually using the gate plant and the associated risks. There was no allegation of inadequate stops being provided by Lejah. Significantly, Lejah had not pleaded guilty to any charge in respect of the design of the gate. 62 The quotes provided by Lejah did not include operating equipment and from the evidence it was clear that others would supply those components. In that respect Hannas had received a proposal from MDI, including recommendations, concerning safety equipment for the motorised gate. The ultimate scope of works issued to MDI in May 2002 included references to safety devices in the context of the gate opening and closing system. By reference to those contractual arrangements it was submitted that Lejah was not responsible for the overall fabrication and installation of the gates but was only responsible for a limited part of those aspects. The scope of works document issued to Lejah required it to co-ordinate their work with other contractors, including a "gate control equipment contractor". That contractor was responsible for the provision and installation of whatever control equipment was required for the operation of the gates and safety devices relating to the closure of the gates: these were expressly included as part of the control equipment contract and did not appear in the Lejah contract. Thus, MDI had the contractual obligation to deal with safety issues in relation to the gate opening and closing system. 63 Hannas, as project manager, was not only the contractor responsible to Bonfoal/Hy-Tec for the supervision of the various sub-contractors involved in the overall design fabrication, installation and commissioning of the gates but were in contractual relationships with each of those sub-contractors thus giving them a capacity to ensure that the gates finally installed were safe. Under the contract with Bonfoal/Hy-Tec, Hannas accepted the responsibility for occupational health and safety on site. 64 The occupiers of the premises, Bonfoal and Hy-Tec, were given clear warnings nearly 12 months before the accident of the defective state of the gates and failed to adequately respond or at all. Bonfoal and Hy-Tec permitted an unsafe work method, the manual operation of the gates, to become part of the system of work and failed to prepare any procedure manual to deal with the obvious hazards involved in the manual operation of the gate of which they had been warned. It was also submitted that MDI, being aware of the danger and having warned Hannas of the dangerous state of the gates as early as November 2002, had failed to remind Bonfoal/Hy-Tec of their failure to rectify the defect in the gates or to bring it to the attention of any relevant authority. During this time MDI was servicing the gates. 65 In relation to these matters it was submitted that the statutory breaches by Lejah were "relatively minor" by comparison to the culpability of other parties involved in the overall production and use of the gates. Lejah's breaches had a relatively minor causative effect in relation to the accident when compared to the roles of other relevant parties, not all of whom had been charged with similar offences. 66 In categorising its offences, Hy-Tec submitted that it had pleaded guilty to similar acts and omissions for offences under both ss 8(1) and (2) of the Act with the key risk being Hy-Tec's failure to provide and or maintain adequate devices such as stops to prevent the western leaf of the gate falling and also failing to undertake an adequate risk assessment on the manual operation of the gate. While Hy-Tec accepted its responsibility in those respects, it submitted that it was the last in a long list of entities that had the opportunity to ensure the existence of adequate stops on the gate. Hy-Tec had relied on the expertise in design, fabrication, d installation, motorisation and commissioning of the gates held by other entities and Hy-Tec lacked the specialist skills in respect of the gates that was carried out by many of the other entities involved in the gate project. Those entities had not adequately assisted Hy-Tec in managing risks associated with the gates. Hy-Tec's failure to adequately risk assess the gates would not have arisen had other entities involved properly used their expertise within the scope of their contractual responsibilities and ensured adequate stops were identified as being necessary and were fitted to the gate. 67 Hy-Tec accepted and adopted the factual findings and conclusions of law in SDA's liability decision of the Court and noted the observations of the Court concerning the necessity for risk assessment of the manual operation of the gates and the use of expertise to provide for the introduction of controls in the form of limiting devices capable of preventing the gates from passing out of their portals. Hy-Tec submitted that an analogous analysis could be extended to all of the entities that carried a contractual opportunity, within the scope of their expertise, to take remedial steps against the foreseeable hazards associated with the manual operation of the gates. 68 Addressing the chain of responsibility placed on other entities, Hy-Tec made the following submissions: (a) Hannas; LSM; Twomey; Stratti - in respect of the failure to properly co-ordinate the delivery of safe gates to Bonfoal/Hy-Tec via proper contract supervision as project manager of the number of contracted entities in the chain; failure to foster and ensure adequate communication between the relevant contracted entities; and failure to properly input to the design drawings of SDA, the manufacturing drawings of Sunstate, the installation process of Sunstate and the supply, installation and commissioning of the electric motors for the gates by MDI: (b) SDA - in relation to its design responsibility (Hy-Tec relies upon the decision of the Court in this regard); (c) Sunstate - in respect of their failure at the manufacturing and installation stages to ensure the provision of adequate stopping devices on the western leaf of the western gate (Hy-Tec relies in this context upon the plea by Lejah Pty Ltd to the Application for Orders as particularised); (d) MDI - which, despite their expertise in the area of gate operation and their stringent flagging of the relevant risk within their late 2002 correspondence, proceeded to install the electric motors and commission the gates absent the existence of adequate stops and thereafter to service the gates on no less than eight occasions between December 2002 and October 2003 without further raising the issue of the inadequacy or absence of stops on the gates at any time subsequent to their 16 December 2002 correspondence. Hy-Tec in its own failure to maintain adequate stopping devices on the gates relied heavily on the contracted servicing assistance and expertise of MDI in respect of the gates up to the incident on 14 October 2003. 69 On behalf of Hy-Tec it was emphasised that the evidence did not establish, beyond reasonable doubt, that Hy-Tec or any or its officers received a copy of the facsimile from Mr Twomey dated 17 December 2002, being a reply to MDI that steps had been taken to address the incident where a gate had fallen over during installation and that stops were being fitted. Even if it had been received at that time by or on behalf of Hy-Tec, it would have done no more than indicate the danger of the gate leaf falling had been addressed by the installation of stops. It was also submitted that there was no evidence, beyond reasonable doubt, that the stop bolted on the western leaf of the western gate did not remain in place and was not jolted out of position by the events on the evening of 14 October 2003. In addition, Hy-Tec was not provided with adequate instruction, guidance, documentation or training in respect of the operation and maintenance of the gates and the role of stops. What had occurred was that Hy-Tec had ultimately received inadequate and unsafe plant being the totality of the western gate in relation to electric and manual operation. While Hy-Tec failed to risk assess that gate, its failure related to a risk that had not been properly risk assessed, identified and controlled by no fewer than seven entities who had a prior opportunity and greater relevant expertise that Hy-Tec in relation to assessing the gates. 70 In oral submissions, Hy-Tec noted that the particulars of its charge arose some one and a half years after the charge concerning SDA. It was difficult to accept, in those circumstances, that somehow Hy-Tec had a greater responsibility than SDA for the accident. SDA's failure was fundamental and went to the design of the gate. In effect, SDA suggested that it was less responsible because others coming after it could have and should have done something to rectify a failure that began with SDA's design. While Hy-Tec may have been in a position to be satisfied that the installation of temporary stops had solved the problem until the motor had been installed and commissioned, once there were difficulties with the motors and that, on a number of occasions the gate had to be manually operated, at that point it was accepted on behalf of Hy-Tec that the company had not properly risk assessed manual operation. The point was made that, during the construction phase, it could not be said that Hy-Tec was put on notice that there was a risk that had not been adequately addressed. In relation to the particulars of charge concerning the inadequacy of informing, training and instructing employees and others in the manual operation of the gate, it was pointed out that MDI did not comply with their contractual obligations in supplying a manual but gave some brief oral instruction about the operation of the gates. MDI did not mention anything to Hy-Tec about the use of stops on the gate. The service record of MDI in relation to the gates was in evidence and demonstrated the continuing involvement of MDI in relation to the operation of the gates but at no time did MDI advise Hy-Tec of any issue about the adequacy of the stops. It was submitted that it was significant that, after drawing attention to the danger of the gate falling again and the need for stops to be installed, MDI ultimately commissioned gates elsewhere in the plant where no stops were provided. Despite attending on an ongoing basis for servicing the gates and knowing the risk of the gate falling without a mechanism such as a stop, during this entire period MDI did not draw that fact to the attention of Hy-Tec. Conclusions as to Relative Culpability of the Participants 71 It can be seen from the foregoing summary that a considerable amount of time and energy was expended by the defendants in addressing the issue of parity, with each defendant attempting to position itself below a variety of defendants and parties against whom proceedings were not taken to suggest to the Court that their level of culpability was low. The complexity and difficulty of this task is heightened when players of some significance in the events that led to the fatal accident are not the subject of proceedings under the Occupational Health and Safety Act and the Court is, therefore, not in a position to have direct evidence as to their entire participation in the design, manufacture and installation of the gates. That statement does not suggest any criticism of the prosecutor but merely draws attention to the difficulty facing the Court when that situation arises. There is nothing before the Court, for example, to suggest that Hannas or MDI do not continue to trade. The Court would be slow to reach a decision about the criminal culpability of those entities in the absence of a very firm evidentiary base for making those conclusions. A significant policy goal behind the principle of parity is the notion of equal justice and was described in Lowe v The Queen (1984) 154 CLR 600 at 610 by Mason J as being a "fundamental element in any rational and fair system of criminal justice". It would be inconsistent and indeed, contrary, to notions of equal justice and a rational and fair system of criminal justice for the Court to publicly express a view as to the criminal culpability of a corporation or person who has not been heard in the proceedings without being satisfied to a high level that such findings were reasonably open having regard to the nature and extent of the available evidence. 72 In the present proceedings, Hannas and MDI have been the focus of submissions suggesting that they should be placed near or at the apex of responsibility for the risk that attended the manual operation of the western gates at the Mascot plant: even then, SDA submitted that MDI was at a low level of culpability and Hy-Tex submitted that, fundamentally, the designer, SDA, was at fault. In submissions, the prosecutor acknowledged that Hannas, as the overall project manager and for the construction of the gates, "could have acted more safely by carrying out a risk analysis of the drawings received from SDA and Sunstate and ensuring that gate stops were welded on all gate frame, particularly after the incident in November 2002". The role of project manager is dealt with in some detail by Mr Andrew Simpson of SDA. That evidence has not been called into question. In the administration of this part of the Court's jurisdiction, the Court has become familiar with the broad role exercised by a project manager and that understanding is consistent with Mr Simpson's evidence (see WorkCover Authority of New South Wales (Inspector Mansell) v Ove Arup Pty Ltd [2006] NSWIRComm 240). It is, of course, open to the parties in making their contractual arrangements to vary or define in some particular way the role of the project manager for a particular project but the general concept encapsulates the notion of having overall responsibility for the co-ordination of the activities of various contractors on the project. 73 The agreement for construction management services between Bonfoal Pty Ltd and Hannas Civil Engineering Pty Ltd was before the Court. Under that contract Hannas was required to provide the services defined in Annexure Pt B being a list of construction management service tasks. A consideration of the list would suggest the performance of an overall project management role as commonly understood but, in particular, in pre-construction that there was a task of advising on the practical implications of proposed drawings and specifications while under the construction phase and Hannas was to perform tasks of formal and informal meetings with the design team and the management systems for quality health, safety and environment. Under cl 9 of the agreement, the construction manager was to satisfy all the legislative requirements necessary to carry out the services and that requirement seems broad enough to encompass requirement of the provisions of occupational health and safety legislation. Again, under Pt B of the agreement, a task of the construction manager dealing with consultant management was the issue of health, safety and the environment. 74 While these matters are not spelt out in detail, they present a picture of Hannas as construction manager/project manager being responsible for occupational health and safety in an overall sense and being responsible for the co-ordination of the design team and drawings and addressing issues as to what might be appropriately and practically added to those drawings. Having regard to that material, broad and imprecise as it is, had Hannas been charged with a breach of the Occupational Health and Safety Act in relation to the fatal accident that occurred in October 2003 at the Mascot site and had either been found guilty or pleaded guilty to that offence, then it is quite possible that Hannas may have been found culpable to a level somewhat above the level of culpability of the other defendants. In the circumstances little more than that can be properly said. 75 The position of MDI is significantly different to that Hannas, not only having no project management role but also not being required to be involved in any design function at an engineering level. A fair reading of the scope of works covering MDI's supply of the motors and associated tasks for the moving of the gates and associated security systems does not indicate that it had a relevant role in checking the design to ensure that stops were present, or having any responsibility for fabricating and installing stops on gates that were designed and manufactured by others. It is significant that, in 2002 when MDI twice raised the danger of lack of stops on the gates, it did not propose that it would arrange for or manufacture and install stops although it identified stops as being necessary. The thrust of its complaint was alerting Hannas to the danger and seeking some assurance that it would be rectified before work continued. It is clear from that context that it did not see itself as having any role in the manufacture or installation of the stops and there is no suggestion that it was ever considered by Hannas, or anyone else, for this task. 76 In submissions the prosecutor did not support those submissions that sought to attribute blame to MDI. The scope of works applicable to MDI specifically excluded the steel gate frame, cladding and support portals and otherwise was of a quite limited nature. It was also pointed out that, in the expert's report, no fault was attributed to MDI. MDI was present on site when an incident occurred and the gate fell and there was a risk to their workers and that risk was brought to the attention of Hannas in November and December 2002. MDI was not asked to deal with the incident and again complained that the matter had not been rectified and was informed that the matter had been attended to. It was submitted that the role of MDI was confined to the operating equipment and that was the extent of its responsibility during its ongoing service attendances. The Court concurs with the thrust of these submissions. If MDI had been charged with a breach of the Occupational Health and Safety Act in relation to the fatal accident involving Ms Maybury and if found guilty of that breach, it is possible that its level of culpability and having regard to all the circumstances, would be lower and possibly considerably lower than that of the present defendants. In light of a submission made on behalf of Hy-Tec, it should be noted that no one else was charged in relation to the operation of the other gates or the failure to have adequate stops or any stops on those gates - MDI cannot, therefore, be legitimately implicated because of the operation of the other gates in the offences concerning the defendants. 77 What then can then be said about the relative culpability of the three defendants? Firstly, Hy-Tec is charged under a different provision and the circumstances relating to the charges of SDA and Lejah focus on different periods. In SDA's case the charge is in relation to design and in Lejah's case, in relation to manufacture and the provision of information. The common thread is that they all had an obligation to consider the manual operation of the gates and the risk that might attend such an occurrence. The Court is unable to accept the submission for SDA that, because it was at the beginning of the process, others behind it should have picked up the risk associated with manual operation: similarly, neither can Hy-Tec make good its position that it came at the end of the line and many others before it should have identified the risk associated with manual operation. All defendants owed a similar obligation to protect against the identified risk. These circumstances do not persuade the Court that, as a result, the culpability of SDA and Lejah are reduced. As previously commented upon, neither SDA nor Lejah have explained how it was that they failed to consider the operation of the gate as required by the Regulation. Hy-Tec had the operation of the gate plant after it was commissioned and was aware that the motor was failing on a regular basis and that manual operation was necessary: it was aware that temporary stops had been installed but caused no investigation of their adequacy. When these matters are considered, the Court is unable to detect any appreciable difference in the culpability of any of the defendants. 78 Deterrence It is beyond question that general deterrence must form a significant component of the penalty to be imposed in each case. These cases demonstrate that even well resourced and professionally run organisations may omit consideration of very obvious and everyday matters to the detriment of safety. The risk of a heavy gate falling is not totally unique. Kavanagh J in Inspector Vierow v Catholic College Lismore Ltd t/as Trinity Catholic College Lismore [2009] NSWIRComm 128 dealt with the death of a young child in circumstances where a sliding gate weighing approximately 100kgs fell because of an inadequate and inadequately maintained stopper. It is not suggested that the surrounding circumstances are identical to the present cases before the Court but both cases indicate that a simple, everyday object such as a gate, in its operation, unless properly risk assessed, can have the most devastating consequences by being able to fall. In relation to specific deterrence, both SDA and Hy-Tec continue operating and it is appropriate in those circumstances that specific deterrence form a significant element of the penalty although in relation to both SDA and Hy-Tec, the steps taken after the fatal accident are an indication that there is a reduced likelihood of either offending in this way again. The circumstances of Lejah are different although there is little by way of evidence before the Court. The prosecutor has accepted that the Sunstate engineering part of its operation has been sold and appears to be operated by a son of the owners of Lejah. There is evidence before the Court that Mr and Mrs Rea are the only directors and shareholders in Lejah and that Mr Rae is now 80 years old. The prosecutor appears to accept Lejah's submission, namely, that Lejah no longer has employees or carries on business. Although no undertaking was given by counsel on behalf of Lejah that it would not again become involved in the manufacture and fabrication of metal items, it appears that is likely to be the case and the Court accepts the prosecutor's concession that there is little or no role for specific deterrence in relation to the fine to be imposed on Lejah. Subjective Factors SDA 79 (i) SDA is a relatively small to medium, professional structural engineering business that has been operating since 1999 and has not previously been found to be in breach of occupational health and safety legislation. This is a good record and SDA is entitled to the leniency afforded a first offender; (ii) The evidence demonstrates the attention paid to safety as a result of this tragic accident and having regard to the nature of its business, it may reasonably be concluded that the company is unlikely to offend again in this way. Following the accident, SDA reviewed its approach to safety and altered its methods of operation. It is apparent from the submissions put on behalf of SDA that the principal of the company feels keenly the result of being found in breach of occupational health and safety legislation and otherwise considers the company to be operating at the highest level of professional and ethical operations. The evidence supports a finding that SDA is a good corporate citizen, involved with the community and contributing to the community by way of charitable donations and pro bono work. References regarding SDA speak highly of the quality of SDA's engineering services as well as Mr Hadley's professional and ethical approach. Importantly, SDA fully co-operated with the WorkCover Authority during the investigation of the accident. These matters will be taken into account in mitigation of the penalty. Hy-Tec (i) proceedings against Hy-Tec were commenced in late March 2008 and the matter appeared in the Court's list on five occasions before not guilty pleas were entered in November 2008, with an estimate of a three-week hearing. There were three more listings before the Court and in early February 2009 the matter was set down for hearing in July and August 2009. In late July 2009, Hy-Tec changed its plea and pleas of guilty were entered to a reduced number of particulars. The prosecutor accepts that, nearly two weeks before those pleas of guilty were announced in Court, the prosecutor had become aware of the change in plea. Those circumstances warrant a consideration of whether or not the Court can accept that proposition despite the prosecutor accepting that an early plea had been entered. The considerations that should attend upon an evaluation of whether or not there had been an early plea have been discussed recently by the President, Boland J, in Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143. In that judgment his Honour canvassed judgments of the Court of Criminal Appeal and their discussion of the principles concerning the availability of a discount in general criminal matters. From those cases his Honour said that, in considering the amount of discount to be given for the utilitarian value of a guilty plea, the Court must have regard to the contribution that the timing of the plea makes to the avoidance of the waste of time and resources of the kind referred to in R v Thomson; R v Houlton (2000) 49 NSWLR 38. The authorities confirm that the discount of 25 per cent should be reserved in the majority of cases where the timing of the plea provides the greatest utilitarian value and in assessing that value, regard was to be had to the complexity of the issues about which evidence would have to be gathered and adduced. Applying those principles to the present matter, it is difficult to conclude that the plea was entered at the earliest available opportunity but that does not conclude the matters to be considered. The defendant entered pleas of guilty to a reduced number of particulars and there is no doubt that the Court was saved considerable time in not having to consider the variety of issues that have arisen in the related proceedings involving the SDA and which occupied some 11 hearing days. In addition, there is no evidence that the prosecutor was led to incur additional costs of substance on the basis of preparing for a contested hearing that became unnecessary once the pleas had been entered. To some extent the likelihood that little further expenditure was incurred will result, in part, from the agreement between the prosecutor and the defendants, Hy-Tec and Lejah, that the sentencing matters should not proceed until after the SDA case on liability had concluded. Having regard to these matters, the Court is satisfied that there was considerable utilitarian value in entering the guilty plea to the extent of warranting a discount of 20 per cent; (ii) Hy-Tec's status as a first offender also entitles it to the leniency accorded to such a defendant. Hy-Tec's industrial record is to be regarded as a good safety record for a defendant working in a high-risk environment. The evidence called through Mr Tiplady demonstrates general commitment to occupational health and safety as emphasised by the role of Adelaide Brighton in the affairs of the defendant. Hy-Tec conducted a full investigation after the accident and addressed the risk exposed - it conducted a risk assessment of the operation of the gate and then implemented a manual operation procedure for the gate. There is an ongoing review of safety processes through Adelaide Brighton. The evidence also demonstrates that Hy-Tec is a good corporate citizen engaging with its community. The Court accepts and the prosecutor concedes that there was co-operation with WorkCover's investigation but, in particular, the evidence establishes that Hy-Tec was the first of the defendants to publicly accept its responsibility for this breach and conducted itself in the most commendable way before the Coroner, especially in the making of recommendations designed to allow the industry to address the problems that arise from the manual operation of otherwise motorised gates. During the course of the sentencing hearing, Hy-Tec maintained that high level of acceptance of responsibility and frankly spoke about its liability for this tragic accident. Senior officers were present during the sentence hearing, indicating the importance of the proceedings to the company and to be present when counsel expressed, on their behalf, once more the company's regret that this accident occurred. Immediately following the accident, representatives of Hy-Tec also showed concern and financial support was forthcoming for the families of Ms Maybury and Mr Sheath. The Court is left in no doubt that Hy-Tec accepts responsibility for this accident and has demonstrated its contrition. These matters are of considerable importance and will all be taken into account in determining an appropriate penalty; (iii) as Hy-Tec has been charged with offences under ss 8(1) and 8(2) relating to employees and non-employees, the principle of totality is required to be considered. The prosecutor pointed to the joint judgment of Boland and Walton JJ in Newcastle Wallsend Coal Co Pty Ltd and Ors v Inspector McMartin (2006) 159 IR 121 as laying down the correct approach in sentencing in circumstances where the totality principle arises for consideration. The principle involves taking each of the offences and having regard to all the relevant circumstances, including the objective and subjective factors, arriving at a separate penalty for each offence. It is then open to the sentencing judge to apply the totality principle requiring consideration of the overall criminality involved in the offences and so requires that regard be had to the principle that the defendant is not to be punished more than once for elements that are common to the offences, as well as ensuring the aggregate sentence or penalty is just and appropriate. Once the totality principle had been applied it would then usually be appropriate to fix separate penalties for each offence. Generally stated, these principles are not in contest but it should be noted that Kirby P in Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704 stated: The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it maybe that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407. In Brown, a case decided by Forster CJ in the Supreme Court of the Northern Territory, his Honour addressed the totality principle where there were multiple offences, stating at 407: In Keefer v Lister (1962) 56 Q.J.P.R. 119, MoynihanD.C. J. said, at p. 124: Where multiple indictments for the same kind of offence are presented, the practice of making concurrent terms of imprisonment imposed on conviction is well known. In the nature of things no comparable approach is open on the imposition of multiple fines. In my opinion, in imposing each fine, where there are multiple offences of the same kind, it is a material consideration to take into account the multiplicity of offences and the effect or end result of the aggregate of the fines imposed and the costs ordered to be paid. I respectfully agree with the learned judge and with Goddard CJ in Batchelor (1952) 36 Cr. App. R. 64 when, in dealing with the common practice of taking in account offences not mentioned in the indictment, he said, 'It usually means a longer sentence but the total punishment does not usually exceed what would be the maximum for one offence of that class'. In the present case the appellant was fined a total of $3,300, considerably higher than he might have been fined for any one of the offences of which he was convicted. This alone, quite apart from the mitigating circumstances I mention above, is sufficient in my view to establish that the total of the penalties imposed demonstrated a departure from principle and was manifestly excessive. In a number of unreported decisions of this Court it has been held that, save in special circumstances, when a number of offences arise from substantially the same act or same circumstances of a closely related series of occurrences, cumulative penalties should not be imposed and many sentences passed from day to day have demonstrated adherence to this principle. The principle has not the same force when fines are involved rather than periods of imprisonment but it is still a consideration in the former case. In the matter before me there were no special circumstances inimical to the appellant, rather the reverse, and there was in my view no reason to depart from the principle I mention. The two offences charged against Hy-Tec are almost identical in their particulars. The manual operation of the gate was likely to be undertaken by an employee of Hy-Tec and it was a somewhat unusual circumstance that led to a non-employee, Ms Maybury, being involved, with its tragic consequences. It may well be that, during the course of business hours while an employee manually operates the gates, there will be non-employees in the vicinity who may be placed at risk. Nevertheless, the overlap between the particulars of the two charges is complete and it would not be just for Hy-Tec to be fined twice for these common elements. The Court proposes a penalty of $135,000 in relation to each offence. That amount needs to be considered in the light of the complete overlap of particulars and the fact that one of the other defendants, SDA, because of the nature of its offence faces the prospect of a single fine for an offence that carries the same essential risks for the same potential dire consequences of serious injury. Therefore, applying not only the principle of totality but also of consistency and parity, justice requires that Hy-Tec be subject to a total fine of $135,000. That total should be apportioned so that, in relation to the s 8(1) offence, there will be a fine of $67,500 and in relation to the s 8(2) offence, there will be a fine of $67,500. Lejah (i) as earlier discussed, the situation with Lejah was quite different to the other defendants. The Court has accepted that Lejah no longer conducts business and that its directors and only shareholders are Mr and Mrs Rea. Unlike the other defendants, there was no detailed evidence put before the Court as to the history of the company and how it responded to the accident in relation to its own procedures and safety measures. It appears that, in the year following the accident, the Sunstate engineering enterprise was sold off to Mr and Mrs Rea's son but no other information is available to the Court about those arrangements; (ii) it has been accepted, in relation to specific deterrence, that the company is unlikely to operate again in this industry or at all. The prosecutor does not accept that Lejah co-operated with the WorkCover investigation but there is no evidence in relation to that matter either for or against the proposition of co-operation, leaving the Court in the position that this consideration cannot be taken into account either for or against Lejah in the sentencing process.. There is no evidence that Lejah has a prior record and the prosecutor has accepted that the defendant is a first offender for the purposes of sentencing and the maximum fine that may be imposed. There is no material before the Court concerning Lejah's acceptance of responsibility for the risk and its consequences; (iii) the only issue of substance, therefore, is whether or not Lejah pleaded guilty to the two charges at the first reasonable opportunity thus entitling them to the maximum discount that might be available in such circumstances. Lejah's position in this regard is similar to that of Hy-Tec. The proceedings were commenced against Lejah in late March 2008 and there were four listings before not guilty pleas were entered in mid-October 2008. At a further mention of the matter in mid-November 2008, an estimate of a hearing occupying three weeks was given to the Court. There were three more mentions of the matter before, in early February 2009, it was confirmed that a three-week hearing would take place between July and August 2009. In mid-May 2009 guilty pleas were entered on behalf of the defendant in both matters. Although the timetable is a little different to that of Hy-Tec there is no material difference between those two defendants in relation to the issue of whether or not there was an early plea. For the same considerations referred to in Hy-Tec's case, it is appropriate that Lejah be given a discount of 20 per cent for the early nature of its altered guilty pleas; (iv) the principle of totality also arises in relation to the Lejah matters. Again, there is a substantial overlap of the particulars although one case focuses upon manufacturing and the second case deals with the failure to provide adequate information about the safe use of the gates. Having regard to the objective seriousness of the offences and the subjective considerations, the Court would impose a fine of $155,000 in relation to each offence. Although the Lejah matters are not identical with the Hy-Tec matters the Court is satisfied that, the for the same reasons expressed in the Hy-Tec matters, in these cases, having regard to the totality principle and the concepts of consistency and parity, the total criminality of Lejah would be met by a fine of $155,000. That fine will be equally apportioned between the two offences with each offence carrying a penalty of $77,500. Victim Impact Statements 80 The Court is aware that during the course of the SDA proceedings and in relation to these proceedings, members of Ms Maybury's family were present. In relation to the sentencing matters the prosecutor tendered three Victim Impact Statements. Those statements were made by: Mrs Wendy Maybury, the mother of Melissa Maybury; a statement made by Mr Timothy Mar the de-facto partner of Mrs Maybury who was regarded as Ms Maybury's step-father; and the statement of Mr John Maybury who was Ms Maybury's father. Mrs Maybury and Mr Mar took the opportunity of reading their statements to the Court. Having concluded that the defendants are to be found guilty of the offences charged against them, the Court has concluded that each of the Victim Impact Statements will be formally received and shall be considered. At the conclusion of the reading of the statements by Mrs Maybury and Mr Mar, the Court stated: I want to thank you both for your statements. I think you should know and be told that a court, when it deals with Occupational Health & Safety matters, is much better informed of the long term consequences of the accidents it deals with when we receive statements from the relatives of victims. Your statements show the continuing devastating effects of your loss now years after the event. You have had to endure and relive this tragic event during the course of the Coronial enquiry, now quite a few years ago. You have had to revisit those tragic circumstances of Miss Maybury's death for the purposes of this sentencing hearing. The court expresses its sorrow for your sad loss and can only hope that, as time passes, you will be able to return to a life of some normality. Thank you both. ORDERS 81 Having regard to the above matters, the Court makes the following orders: (a) In relation to SDA: (i) Simpson Design Associates Pty Ltd is found guilty of a breach under of s 11(1)(a) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 404 of 2008; (ii) the defendant is fined the sum of $185,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as assessed and ultimately ordered by the Court. (b) In relation to Hy-Tec: (i) Hy-Tec Industries Pty Ltd is found guilty of breaches under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 as ultimately particularised in Matter Nos IRC 399 and 400 of 2008; (ii) the defendant is fined the sum of $67,500 in relation to each offence with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as assessed and ultimately ordered by the Court. (c) In relation to Lejah: (i) Lejah Pty Ltd is found guilty of breaches under s 11(1)(a) and s 11(1)(b) of the Occupational Health and Safety Act 2000 as particularised in Matter Nos IRC 402 and 403 of 2008; (ii) the defendant is fined the sum of $77,500 in relation to each offence with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as assessed and ultimately ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS (Hy-Tec Industries Pty Ltd) 1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (the Act) and empowered under section 106(1)(c) of the Act to institute proceedings in these matters. 2. HY-TEC INDUSTRIES PTY LTD [ACN 070 100 702], ("Hy-Tec") is and was at all material times a corporation whose registered office is situated at Level 1, 157 Grenfell Street, Adelaide, in the State of South Australia. 3. On 21 July 2009 the defendant, Hy-Tec, entered pleas of guilty to an offence under s8(1) of the Act and to an offence under s8(2) of the Act. Hy-Tec has admitted the following similar acts and omissions for each offence: i. it failed to provide and/or maintain adequate devices to prevent the western leaf of the western gate falling during manual operation; ii. it failed to undertake an adequate risk assessment of the manual operation of the western gate; and iii. it failed to ensure that the plant was safe and without risks to health of persons (being employees in the case of the s8(1) offence and non-employees in the case of the s8(2) offence), in that it failed to ensure any adequate devices to prevent the western leaf of the west gate falling during manual operation. Background 4. During 2003 Hy-Tec operated a concrete batching plant at its premises at 294-296 Coward St Mascot. Hy-Tec was an employer and its employees included Jason Sheath. 5. The site at 294-296 Coward Street Mascot (the "site") was owned by Tenix Properties Pty Limited ("Tenix"). 6. Tenix leased the property to Bonfoal Pty Limited ("Bonfoal"). Bonfoal and Hy-Tec were wholly owned subsidiaries of Premier Resources Limited. 7. Premier Resources Limited and its subsidiaries were acquired by the Adelaide Brighton Limited group of companies on 15 March 2002. Construction of concrete batching plant. 8. During 2001 and 2002 Bonfoal constructed a concrete batching plant at the site. 9. After the construction of the concrete batching plant, Hy-Tec operated the concrete batching plant during 2003. The concrete batching plant was commissioned in approximately late November 2002 and officially opened in December 2002. 10. Hannas Civil Engineering Pty Ltd ("Hannas") was appointed by Bonfoal as the project manager for the construction of Hy-Tec's concrete batching plant at Mascot. 11. During the construction of the plant, Hannas was represented by its foreman, Darren Stratti and its project manager, Peter Twomey. Twomey was based off site in the office. Stratti was based on site and coordinated the installation of the gates. Mr Stratti is now deceased. 12. LSM Projects Pty Ltd was contracted by Hannas to provide project management services which in practice were carried out by civil engineer Twomey who was employed by LSM. Construction of bi-sliding gates 13. The construction of the plant included three sets of bi-sliding steel gates on Coward Street: one on the eastern side, one on the western side and one in the middle between the eastern gate and the western gate (the "gates"). Part of Hannas' duties included acting as the project manager for the design, construction and installation of the gates. 14. Each set of gates consisted of two gate leaves that opened in the opposite directions and slid back in the same direction to close the aperture of the premises through the tunnel of the support portals. The gates were fitted with motorised driving units with switches to open and close the gates. The gates could also be operated manually. 15. The western gate was the largest of the three gates and each gate leaf of the western gates weighed approximately 1340 kilograms. 16. The broad parameters for the design of the gates were established by the development approval obtained from Botany Bay Council which specified that there would be a three metre high fence and gates along the full frontage of Coward Street and the gates would be of colourbond or similar material. The Development Consent 00/397 was granted by the Land and Environment Court on 20 February 2001. 17. The brief to Hannas from Bonfoal in accordance with condition 102 of the Development Consent was: "Provide a steel bi-fold gate system that can be opened and closed via digital key pads adjacent to the gate or overridden from the control room together with electronic eyes for closure". 18. Initial drawings of the gates were provided by the architects Wolski, Lychenko and Brecknock (the "Architect"). Simpson Design Associates Pty Limited 19. Simpson Design Associates Pty Limited (SDA) contracted with Bonfoal to provide structural design engineering services for the concrete batching plant. As part of its contract SDA provided structural drawings of the gates. SDA was responsible for designing the reinforcing steel for the civil works and the gates along Coward Street. Damian Hadley, an employee and associate director of SDA was employed by SDA as a structural engineer to perform structural design and to co-ordinate the day to day activities of SDA. Hadley was a chartered professional engineer Hadley was answerable to Andrew Simpson a director of SDA. Hadley was the structural engineer who did most of the initial design work at the Hy-Tec Mascot plant. Adam Blatchford did the drafting in relation to this design work, supervised and approved by Hadley. 20. By letter dated 23 March 2001 SDA originally tendered to Hannas to provide structural design engineering services for the concrete batching plant. The gates were not part of the initial work for which SDA was contracted. 21. The structural design for the steel gates and steel frames that supported the gate was carried out later pursuant to an oral brief, together with some drawings and written instructions from Twomey. The design brief also included subsequent meeting notes and communications between Hannas and SDA. 22. On 29 August 2001 there was a meeting attended by Twomey, Hadley and Ron Sturgess and Bob Proctor from Hy-Tec which included a briefing as to Hy-Tec's requirements for the entrance gates to the property and how they wanted them to operate. Hadley described it as a design meeting. Sturgess and Proctor stated that there were to be three gates, with the size of the openings and the gates to be electromagnetically operated. It was decided at the meeting that Twomey and Hadley would visit other concrete plants and have a look at the type of gates they had. 23. On 3 September 2001 SDA agreed to provide additional works which included within the Scope of Work "Structural Steel Gate Design" for four framed steel gates. However, there was only ever an intention to construct three gates. 24. During the period between the meeting on 29 August 2001 to 9 November 2001 Twomey and Hadley visited the CSR Lidcombe premises and examined the entrance gate which was a sliding gate consisting of a lattice about 1.8-2 metre high with a large opening. They examined the motor system for the gate and it was an electronically driven rack and pinion system. 25. On 9 November 2001 a meeting was held which was attended by Twomey and Hadley. During the meeting Twomey and Hadley reviewed the CSR Lidcombe sliding entrance gates and Hadley undertook to review the manufacturer's proprietary systems and confirm the approach with Twomey before carrying out any design. 26. On about 12 November 2001 Hadley proposed to Twomey by facsimile that SDA would proceed with the structural design of the gates and specify the track and rollers as proprietary items. This proposal was accepted by Twomey. 27. On about 13 November 2001 Hadley provided to Twomey a preliminary sketch of the gate, being a schematic of the gates. Revised preliminary sketches were supplied by SDA on 15 November 2001 and tender documents were supplied on 19 December 2001. Hadley described them in his covering facsimile as "gate and masonry wall details". In relation to the gates, they included only the structural elements that subsequently appeared on SDA's Miscellaneous Steelwork drawings. 28. Twomey checked the co-ordination of the drawing and reviewed the gate structural design with respect to the design brief. On 7 December 2001 Twomey sent Hadley comments on the drawings he had received. 29. The drawings were updated on 8 March 2002 to suit the architects' drawings. The sketch shows some angles "50x50x5" which were indicated as needed to be welded to elements of the gate in order to hold up the colourbond sheeting. The angles were added to this drawing at Twomey's instructions or as a result of coordination between Twomey, Hadley and the architect. 30. SDA provided the structural drawings of the gates to Hannas. On 7 May 2002 SDA issued drawing M1047-S4.00 Revision D. On 24 June 2002 SDA issued drawing M1047-S4.00 Revision E. These structural drawings contained the design which was unsafe. 31. Gate stops were not incorporated in those drawings. No provision was made in the design for the gates to be operated manually or in the case of mechanical failure. The design shown on SDA's Miscellaneous Steelwork drawings does not address the issue of mode of operation of the gates. The only reference to the mode of operation of the gates is the note on the drawings which refers to the need for coordination with the manufacturer of the gate motor. Sunstate 32. On 8 April 2002 Bonfoal contracted with Lejah Pty Limited trading as Sunstate Consulting and Engineering ("Sunstate") for the fabrication, supply, installation and commission of equipment, particularly the concrete batching equipment. 33. SDA was not shown the fabrication drawings prepared by Sunstate but they conformed with the SDA design. 34. Twomey was shown drafts of the manufacturing or shop drawings by Sunstate and made comments on them. On 8 August 2002 Twomey responded by facsimile noting his review of the drawings and his comments. Mr Twomey's facsimile of 8 August 2002 constituted his approval of Sunstate's fabrication drawings. 35. Sunstate arranged for JA Evans in Ipswich to manufacture the gates and related equipment in accordance with the manufacturing or shop drawings. 36. Prior to the gates being erected and installed no drawings produced by SDA specified devices such as stops to prevent the gate leaves moving out of the portals of the gates. 37. Hadley from SDA carried out an inspection on 2 October 2002 but the gates had not been installed at that point in time. SDA in the Interim Occupation Certificate documentation dated 2 October 2002 certified that it had "carried out structural inspections in accordance with accepted engineering practice and principle". 38. Jason King was employed by Sunstate on the site. It was the responsibility of King to delegate particular tasks to members of the Sunstate workforce. Sunstate engaged subcontractors including Neil Jorgenson (Fitter/Welder) and Wayne Norris (Boilermaker) to assist with the structural works on site. 39. Gary Manns was the plant maintenance supervisor for all Hy-Tec's concrete plants in Sydney but was based at the Mascot plant during its construction and was there various days from about May 2002. During November 2002 Manns was at the site most days and carried out a number of small tasks. 40. The tracks and anchors for the gates had to be installed before the concrete for the driveways and crossings could be laid. Stratti arranged for the tracks and anchors to be installed. Manns assisted Stratti to lay down the track for the gates using welding equipment and bolts. 41. In late October or early November 2002 the gate frames were delivered to the Mascot site. 42. Stratti arranged for the bolting of the portals of the gates. Magic Door Industries 43. MDI was appointed to supply, install, the automated operating system on the gates and to service the gates after they were installed. By letter dated 23 May 2002 MDI confirmed the scope of works to motorise the gates. On 30 May 2002 Twomey on behalf of Hannas sent to MDI a Bonfoal Purchase order which confirmed the order for the automatic gate controls work. 44. The Detailed Scope of Works for MDI was to provide 'Operating Equipment' for the Concrete batching plant's gates including the operating equipment for two twin sliding gates as illustrated on drawing M1047-S4.00 and for the 18m opening sliding gate operating equipment for one. The Scope of Works defined the following as 'Operator's Equipment': The operating equipment shall be defined as all the equipment necessary to operate the gates automatically. This would include but not be limited to: Gate motor drive and accessories; Gate horizontal roller guides and brackets; Gate mechanical gears, tracks and fittings; Gate operating control system including all equipment, cabling and control devices; Operating and maintenance manual The Operating Equipment does not include: Supply and installation of the cast in the track along the driveways, except that the Supplier will confirm the preferred track detail as per drawing, M1047-S4.00 Steel gate frame, cladding and support portals. 45. MDI began its installation on 12 or 13 November 2002 when Wolfgang Hahn, a subcontractor, his offsider Tony, and Geoff Dark, installation manager for MDI were carrying out this task for MDI. November 2002 Incident 46. The MDI personnel first installed the operating equipment for the eastern gate. Hahn then went over to the centre gate by himself and a leaf of the centre gate fell towards Hahn (the "November 2002 incident"). Hahn was not injured. 47. Hahn then alerted Dark (who had left the site by that time) by telephone to the problem that there were no stops. MDI did not carry out any more installation that day. 48. Dark advised Khoury, the MDI sales representative responsible for the Hy-Tec site, that there were no stops and that a facsimile should be sent to Hannas about this matter. 49. Twomey was notified in a facsimile on 14 November 2002 by Khoury from MDI on of the danger of a fatality in manual operation of the gates if physical stops were not installed on the gates. Twomey received this facsimile and inspected the gates after they were placed back in position but before the installation of any stops. Installation of Stops 50. In the days after the November 2002 incident some metal stops were installed on the gates. Three stops altogether were installed, including a stop attached to the western gate on each of the gate leaves. While the stop on the eastern gate leaf of the western gate was welded, the stop on the western gate leaf of the western gate was only bolted. The gate stops were made of steel. 51. Hahn and Dark both returned to the site on 15 November 2002 and completed the job. 52. Stratti was last full time on site on 20 November 2002 and was only on site for short term purposes after that during November 2002. Commissioning of Plant 53. The entire work of MDI on installation of the operating equipment for the gates finished and commissioning took place on 21 November 2002. Dark was not there at that time and left it for Grant Corbett, the senior installer for MDI, to commission the gates and give instruction to the people on site how to use the gates. 54. On 25 November Hadley on behalf of SDA certified that SDA had carried out structural inspections in accordance with accepted engineering practice and principles and that at the time of site inspections the work inspected complied with the intent of the design. 55. The commissioning of the batching plant under the supervision of Proctor, started in late November 2002, took place for about a month and involved Sunstate as well as Hy-Tec employees Manns and Paul Reagan. 56. During this commissioning the automatic operation of the gates failed and Proctor had to manually unlock the gate to let himself out of the yard, after which he notified Gary Manns. This failure of the gate to operate appears to be connected with a service call by MDI on 13 December 2002. December Facsimiles 57. After the service call and following an MDI service manager having discovered that there were still no stops installed on the eastern gate, Khoury of MDI sent another letter to Hannas on 16 December 2002 warning of the danger of inadequate stops. 58. Twomey received the letter and replied by facsimile on 17 December 2002. This reply said The sliding gates currently have been fitted with physical stops to prevent them from sliding out of the support portals in their closed position. These were installed in November. We will now also add physical stops to each gate in their open position to prevent them from sliding out of their portal in the other direction. 59. The facsimile suggests that it was carbon copied to Proctor. Although there was a facsimile communications from Hannas to Hy-Tec on that date and at the relevant time, namely 11.50 am, records do not show the contents of that communication. 60. Proctor does not recall seeing the 17 December 2002 facsimile at this time or prior to 14 October 2003. Hy-Tec 61. By December 2002 the construction of the concrete batching plant was substantially finished and Hy-Tec had entered into possession of the premises. 62. Someone from MDI gave Gary Manns, the plant maintenance supervisor from Hy-Tec, a demonstration and verbal instructions on how to operate the gates both using the key and also using the gates manually. 63. Manns in turn provided verbal instruction to Michael Allen, the yardman, Brad King, the first batcher at the plant and Paul Reagan from Hy-Tec on how to operate the gates both automatically and manually. Manns also told Proctor how to move the gate manually. 64. From the time the plant was commissioned around December 2002 the gates had to be operated manually at times. Manns was contacted 2 or 3 times by Brad King, the first batcher at the plant, complaining that the gates leading on to Coward Street would not work automatically and had to be opened or closed manually, after which Manns contacted MDI who made service calls. 65. Throughout 2003 failures in the automatic electronic functioning of all the gates but most frequently, the western gate, were a regular occurrence. Hy-Tec employees closed the gates manually frequently and this required more than one employee as the western gate in particular was heavy. 66. The usual practice with the western gate was to close the eastern leaf first. 67. MDI had the service contract for the operation of the gates and from time to time during 2003 MDI serviced the gates when there were problems with the electronics of the motor. MDI visited 10 times in relation to a problem with a motor. MDI did not provide any documentation or written service reports to Hy-Tec in relation to these visits. 14 October 2003 Incident 68. On 14 October 2003 a tragic incident occurred. 69. Jason Sheath was the last employee of Hy-Tec present at the site and was responsible for closing the gates to the site. His friend Melissa Maybury arrived at the concrete batching plant by car to transport him home. She had done this on previous occasions. 70. Mr Sheath was attempting to close the bi-sliding metal gate on the western side of the premises. Sheath was initially attempting to close the western gate electronically. The electronic system used to close the gates failed. Sheath rang his supervisor Hanna to ask him for the pin code for the drivers room because the drivers had forgotten to close the room gate and told Hanna he was having problems closing the gate and that he would get back to Hanna with how he went with closing the gate. 71. Sheath disengaged the motor and commenced to close it manually. Sheath initially tried to close the western leaf of the western gate. He experienced difficulty in moving the western leaf by himself. Sheath had previously had assistance in closing the gate manually. Ms Maybury came to the assistance of Sheath in manually closing the gates. 72. At the time that Mr Sheath was attempting to close the western leaf of the western gate, the eastern leaf was still in the open position. 73. While Sheath and Ms Maybury were attempting to close the western leaf manually, as they pulled the western leaf, the front edge of the gate leaf passed the midpoint of the driveway. It moved out of the supporting portal and fell onto Ms Maybury and caused her fatal injuries. Factual inspections 74. There were 3 sets of gates (eastern, western and middle) at the Hy-Tec Botany Plant each consisting of two gate leaves that ordinary met at a midpoint in the closed position. The incident in which the gate fell on Ms Maybury involved the western gate which is the largest of the three gates. 75. On 15 October 2003 Inspector Sibilant attended the site of the incident at about 7:05am (Vol 1 Tab 2). He observed a large metal gate lying on the ground, the top of which was facing a southerly direction and which was approximately 10.71m long by 2.53 m wide. The gate had a metal frame of approximately 100mm by approximately 150mm consisting of galvanised metal. 76. The gate had cross supports which ran the length of the gate (approximately 10.71 metres). The distance from inside the supports were: i. approximately 720mm from the inside of the top of the gate to the inside of the first cross support; ii. approximately 710mm from inside the first cross support to the second cross support; and iii. approximately 710mm from the inside of the second cross support to the inside of the bottom frames which had the metal wheels attached. 77. The gate had a support that was located in the middle running from the top of the gate to the bottom and was manufactured from galvanised metal. Fitted to the frame were colour bond metal sheets. 78. Fitted to the base of the gate were 2 metal wheels. These wheels were approximately 200mm in diameter by 25mm thick. The wheels were attached to the gate via a bracket that was approximately 75mm wide by 140mm long. These brackets had an axle rod through them and the wheels. 79. Attached to the bottom support above the location of the wheels was a rack which was approximately 30mm wide and 10mm long "tooth". There was approximately 12mm between the tip of each tooth. The rack was approximately 9.6 metres long and started at the eastern edge and finished before the second wheel approximately 25mm above the gate frame and was attached with brackets and bolt. The rack was made up of sections each approximately 1.05 metres in length with an approximate gap of 3mm between each piece. Each section was attached to the gate via 3 bolts. 80. Attached to the rear of the outside of each of the guide frame structures were a FAAC electric motor which had a pinion or cog wheel arrangement attached to it. This arrangement opened and closed the gates by driving the rack attached to the gate. The wheels of the gates ran on a metal rail which was cemented into the ground. The rail was approximately 4mm thick and protruded approximately 5mm above the concrete grounds. 81. On 15 October Inspector Ching attended the site and observed on the top of the western gate a stop made of angle iron metal and measuring approximately 110mm x 75mm x 50mm, which was bolted 30mm from the top of the inside vertical frame in the closed position on western gate leaf. 82. Inspector Garg attended the site on 15 October 2003 with Inspector Ching. Inspector Garg observed that there were three sets of entry gates facing Coward Street. The set of gates which were involved in the accident were at the far west side of the factory. The western gate was approximately 10.75 metres long and 2.5 metres high. It was made out of rectangular steel and colour bond sheeting materials. The allround steel frame was made from 100mm x 150mm x 6mm thick rectangular hollow section steel. In the middle of the gate was one vertical support made from 100mm by 150mm by 3mm rectangular hollow section steel. There were two cast iron wheels on 200mm diameter located on either end of the gates bottom side. There was a provision for the third wheel in the middle but this was not present. The wheel track was approximately 39 metres long. There was no stop in the middle of the wheel track to stop overrun of the gates. The two gates were fitted with FAAC electric motor (Model 844CR). 83. Inspector Garg further observed that on either side of the gates were two gate guide assemblies to hold the gates in position and to guide when the gates were opening or closing. The clear gap between the two gate assemblies was approximately 18 metres. Each gate guide assembly was made from two guide rollers arranged to two vertical steel posts approximately 200mm apart and connected at the top. Each steel post was made from 250mm x 250mmx 6.0m from square hollow section steel. Each guide roller was made from 100mm diameter wheels. 84. Inspector Garg observed on the top of the western gate there was a steel angle 110mm by 75mm by 50mm bolted to the steel frame of the gate on the western end approximately 30mm from the top edge of the frame. On the eastern gate there was a steel angle welded to the steel d\frame on the outer eastern side of approximate dimensions 110mm by 75mm by 50mm. The vertical gap between the top of the gate and assembly was approximately 20mm. The total weight of the gate, consisting of the two gates leaves was approximately 2,680kg' each gate leaf was approximately 1340kg (29/8/05 page 2.25). 85. There were only ever three stops attached to the six leaves of the gates at the concrete batching plant. There was one welded stop affixed to the eastern leaf of the western gate and one bolted stop affixed to the western leaf of the western gate. Measures undertaken after 14 October 2003 Incident 86. After the fatal incident, Hadley on behalf of SDA designed gate stops which were approved by Simpson. The design drawings were forwarded to Proctor of Hy-Tec by Hadley on 15 October 2003. The entire work of designing fabricating and installing the stops in both the opening and closing positions took just one day. 87. In designing the stops after the fatal incident Hadley was able to undertake relevant calculations to undertake the task such as the calculation of the load. As the gates could be operated manually as well as electronically, Hadley determined the load that someone could push on the gate manually and from that he allocated the velocity and calculated an impact load. 88. These stops were manufactured by Keiless Enterprises on 15 October 2003 and installed by Keiless on 16 and 17 October 2003. 89. Subsequent to the fatal incident and in compliance with Prohibition and Improvement Notices issued by Inspector Ching, a risk assessment of the gate has been undertaken and a manual operation procedure has been prepared and circulated to staff. Co-Operation with Workcover 90. Hy-Tec fully and actively co-operated with WorkCover throughout the investigation. 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.