Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector James v Terra Civil Pty Ltd [2011] NSWIRComm 31 Hearing dates: 9 February 2011 Decision date: 29 March 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC328 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $120,000 with a moiety to WorkCover Authority of New South Wales. 3. The defendant to pay the costs of the Prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(2) of the Occupational Health and Safety Act 2000 by defendant - early guilty plea - defendant's truck strikes labourer working beside moving vehicle - known safety features not in place - failure to ensure internal communication between sub-contractors and head contractor - failure to provide spotter for vehicle movement - failure to properly risk assess - contractual obligation on head contractor to provide traffic control but sub contractor defendant fails to ensure safety of persons at the worksite - foreseeability a factor - gravity of the potential risk - general and specific deterrence - remorse shown and contrition expressed - evidence of ongoing corporate commitment to safe working - assessment of contribution to risk - parity - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Occupational Health and Safety Act 2000 (NSW) s 8(2) Cases Cited: Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Inspector Rowe v Eagle Eye Traffic Services Aust Pty Ltd [2010] NSWIRComm 31 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Lowe v R (1984) 154 CLR 606 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 Postiglione v R (1997) 189 CLR 295 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309;(2000) 49 NSWLR 383;115 ACrimR 104 R v Way (2004) 60 NSWLR 168 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 Category: Principal judgment Parties: Inspector James (Prosecutor) Terra Civil Pty Ltd (Defendant) Representation: R Reitano of Counsel (Prosecutor) B D Hodgkinson SC (Defendant) WorkCover Authority of NSW (Prosecutor) Johnsons Solicitors (Defendant) File Number(s): IRC 328 of 2010 Judgment 1This prosecution is brought by Inspector Amanda James of the WorkCover Authority of New South Wales against Terra Civil Pty Ltd ("Terra Civil" or "the defendant") under s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"), by way of an amended Application for Order. It is alleged the defendant, on 1 May 2008, contravened s 8(2) of the Act in that it failed to: By its acts or omissions particularised below, ensure that people (other than the defendant's employees) and in particular Kevin Finnemore, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work contrary to section 8(2) of the Occupational Health and Safety 2000 . In particular: (a) The 'work' was excavation work and the removal of excavated material associated with road widening work at the premises. (b) The 'risk' was the risk of injury to people who were not the defendants employees of being struck down by moving vehicles. (c) The defendants 'place of work' was the premises. (d) The defendants undertaking was, amongst other things, to provide on a contract basis earth moving equipment, excavation services and removal of excavated materials. (e) The 'exclusion zone' is an area of work that is within 3 metres of moving plant or within the area of revolving plant. (f) The people who were not the defendants' employees who were exposed to the risk were Kevin Finnemore. (g) The defendant failed to have a spotter or observer whose duties were whilst the work was being performed (i) Co-ordinate the movements of prime movers with attached trailers that an exclusion zone was maintained and that people did not enter the exclusion zone; and (ii) Ensure that pedestrians were clear of all moving traffic within the exclusion zone whilst work was being performed. (h) The defendant failed to have a dedicated communication system to alert workers when the prime mover and attached trailer were ready to leave the exclusion zone in accordance with Code of Practice 2004 for Moving Plant on Construction Sites whilst the work was being performed. (i) The defendant failed to undertake a risk assessment that identified and considered the risks associated with the movement of prime movers and trailers within the exclusion zone, particularly in relation to the possibility of pedestrians being present in the exclusion zone at the time of the movement. (j) The defendant failed to inform non employees undertaking excavation work and the removal of excavated materials associated with road widening works; (i) that there was to be a safe distance between employees and vehicles (including trailers) at all times; and (ii) there should be a spotter or observer present when people were working within the exclusion zone. (k) The injuries sustained by Kevin Finnemore were a manifestation of the risk. 2The defendant pleads guilty to the charge. 3Mr R Reitano of counsel appeared for the prosecution and Mr B D Hodgkinson SC appeared for the defendant. The prosecution relied upon: an amended Application for Order; agreed Statement of Facts; Factual Inspection Report of Inspector Amanda James dated 12 May 2008; Factual Inspection Report of Inspector Anthony Nicholson dated 12 May 2008; four colour photographs taken by Amanda James dated 1 May 2008; 32 colour photographs taken by Constable Nathaniel Norsa; Australian Standard 1742.3-2002 Manual of Uniform Traffic Control Devices Part 3 Traffic control devised for work on roads; WorkCover Code of Practice Moving Plant on Construction Sites 2004; WorkCover Safety Alert Moving Plant on Construction Sites 29 December 2006; and a Prior Convictions Report - Terra Civil Pty Ltd dated 2 February 2011. 4The defendant relied upon an affidavit of Emilio Spinozzi, a Director of Terra Civil, sworn 7 February 2011, with attachments including copies of the corporation's Safety Work Method Statement and its pre-existing safe work policies. The defendant also relies on Work Order No 003 of the RTA addressed to Terra Civil. 5There was an Agreed Statement of Facts which relevantly reads: 3 At all material times the Roads and Traffic Authority of New South Wales (RTA) was a body corporate constituted pursuant to Section 46 of the Transport Administration Act 1988 . 4 The RTA had the capacity to approve and assign to external contractors work to be carried out on public roads within the State of New South Wales. 5 The RTA employed Craig Watson as Acting Quality Assurance PQR, Raymond Eaton as Construction Supervisor, Ratko Ivanovski as Team Leader and David Ball as a labourer. 6 The RTA subcontracted Terra Civil to provide earthmoving equipment, perform excavation works and remove excavated material from the site. Terra Civil employed Emilio Spinozzi, Adamo Spinozzi and Frank Antonizzio to conduct works at the site on its behalf. 7 Terra Civil operated two prime movers with attached trailers which were used to remove excavated material from the site. Adamo Spinozzi operated a silver coloured freighliner prime mover registration TRA 025 with an attached dog trailer registration U10129. Frank Antonizzio operated the second freightliner prime mover registration TRA 024 with an attached dog trailer registration TRA 024. Emilio Spinozzi operated a Hitachi excavator registration 75381-C. 8 The RTA subcontracted Online Concrete Sawing Pty Ltd ("Online Concrete Sawing") to provide a water cart and a water cart operator for the project. Online Concrete Sawing were paid hourly for the provision of a water cart and they supplied a plant operator. Online Concrete Sawing employed Kevin Finnemore to conduct works at the site on its behalf. 9 On 29 October 2009 Online Concrete Sawing changed its name to South Coast Excavations Pty Ltd. All other aspects of the company remained the same. 10 The RTA subcontracted Split Bobcat Services Pty Ltd ("Spilt Bobcat") to operate a bobcat to skim and level the median strip for construction. Spilt Bobcat employed Gregory Barnes to perform services at the site. Project 11 The RTA was the principal contractor for the project at the site located at the intersection of Epping and Herring Roads at Macquarie Park NSW. The project formed part of improvement works for the Bus corridor 9, one of two corridors that connect Parramatta with the City. 12 The works for the Project included the following: Extension of the double turning bay from Epping Road into Herring Road by approximately 300 metres; and Narrowing of the existing grassed median strip. 13 The grassed median strip was approximately eight metres wide and divided six lanes of traffic: three eastbound lanes and three westbound lanes. 14 On 8 April 2008 the RTA obtained Road Occupancy Licences No 132151 and 132152 to permit them to undertake the road works at Epping Road. The licences permitted the closure of one lane in both eastbound and westbound directions, between 10:00am and 3:00pm weekdays and 8:00pm to 5:00am on weekends from 1 and 31 May 2008. Incident 15 On 1 May 2008 at approximately 7:00am, immediately prior to the commencement of works, workers closed lane 3 of Epping Road. Lanes 1 and 2 were left open for morning traffic. The normal speed limit along Epping Road is 80km. This speed limit remained enforced whilst works were being undertaken. 16 Water filled safety barriers were installed at the site, commencing at the intersection of Herring and Epping Roads and ran in an eastbound direction for a distance of approximately one kilometre. The water filled safety barriers were tied together and separated the median strip from Epping Road. 17 Prior to the incident there had been significant rain in the area and as such the services of Online Concrete Sawing were not required. Ratko Ivanovski requested that Kevin Finnemore remain on site to assist with work which was outside the scope of his contracted duties. 18 Ratko Ivanovski did not communicate the request for additional work to the management of Online Concrete Sawing and as such Online Concrete Sawing had no knowledge of what work Kevin Finnemore was undertaking prior to the incident. 19 Emilio Spinozzi, Adamo Spinozzi and Frank Antoniazzio commenced work at approximately 9am. Emilio Spinozzi was operating the excavator to excavate the existing median strip. Adamo Spinozzi together with Frank Antoniazzio were operating two prime movers with dog trailers to transport the excavated material away from the site. 20 David Ball was spotting for the excavator operator, cleaning the jersey curb and occasionally crossing the water filled safety barriers into the closed lane to move orange safety cones so as to allow prime movers to enter the closed lane. 21 Immediately prior to the incident, Adamo Spinozzi's prime mover licence plate TRA 025 and the attached dog trailer licence plate U10129 were parked stationary in lane 3 adjacent to the water filled safety barriers whilst being filled up with excavated material from the median. 22 Kevin Finnemore was assisting Ratko Ivanovski move the Geotech material along water filled safety barriers and was cleaning dirt off the road in lane 3. Kevin Finnemore was holding the material at one end and Ratko Ivanovski holding the material at the other. Ratko Ivanovski was standing on the water filled barriers dragging the Geotech material uphill in a westerly direction whilst Kevin Finnemore was manoeuvring this to at the opposite end. 23 Geotech was used at the site primarily to protect the white and orange water filled safety barriers from dirt getting caught in the crevices of the barriers. The Geotech material was estimated to be approximately 20 metres in length similar to the combined the length of the prime mover and dog trailer. The weight of the material is unknown. 24 Emilo Spinozzi used the excavator to move the excavated material from the median strip into the trailer attached to the prime mover operated by Adamo Spinozzi, so that it could be removed from the site. At some time during this process Adamo Spinozzi left the cabin of the prime mover to check on the gauge of the trailer. The gauge is located on the side of the trailer and indicates when the trailer is at capacity. 25 When the prime mover was at maximum capacity, Adamo Spinozzi advised Emilio Spinozzi he was going to depart. Adamo Spinozzi observed Kevin Finnemore in lane 3 as he moved toward his prime mover and he waved to Kevin Finnemore as a signal for him to stop and made eye contact with him. However there was no verbal communication to advise Kevin Finnemore that he was to depart. 26 Around this time Frank Antoniazzio entered the site in his prime mover and pulled up approximately five to ten metres behind the prime mover that was being operated by Adamo Spinozzi. Whilst Adamo Spinozzi's trailer was being loaded with excavated material Frank Antoniazzio observed Kevin Finnemore walk in front of his prime mover with a shovel in his hand and proceed around the side of Adamo Spinozzi's truck where he scooped up dirt which had fallen onto the road. Frank Antoniazzio then observed Kevin Finnemore walk down in an eastbound direction along the passenger side of Adamo Spinozzi's truck. 27 At approximately 1:00pm Adamo Spinozzi drove the prime mover away from the stationary position heading east bound on Epping Road. As he released the brakes and took to gear Adamo Spinozzi noticed a hard hat in the corner of his eye and heard a scrapping sound along the ground. 28 Emilio Spinozzi observed Adamo Spinozzi enter the cabin of the prime mover. He then commenced noting the truck times in the logbook taking his eyes off the prime mover and the closed lane. When he looked up he saw some boots on the road after the prime mover had driven off. He stepped up onto the barricade and saw Kevin Finnemore on the road. Emilio Spinozzi crossed over the water filled safety barricades to check on Kevin Finnemore and began dialling 000. 29 David Ball was spotting for the excavator operator only metres away from the incident. However he did not see Kevin Finnemore and was alerted to the incident by the screams of Emilio Spinozzi. Once he became aware that something had occurred he jumped the water filled safety barriers and went to Kevin Finnemore no longer than 10-15 seconds after the incident. When he reached Kevin Finnemore he checked his breathing and heartbeat and felt nothing. As there were pedestrians in the vicinity, David Ball grabbed the geotech material which was laying across the water filled safety barriers and covered Kevin Finnemore. 30 Ratko Ivanovski ran over to where Kevin Finnemore was laying on the ground. Gregory Barnes rang the Raymond Eaton the site supervisor to advise him of the incident than to call 000. 31 Raymond Eaton left the office and attended the incident site. A short time later ambulance and other emergency services arrived at the site. Systems of Work Prior to the incident RTA Traffic Control at Work Sites Manual 32 The 'RTA Traffic Control at Work Sites' manual, ("TCWS") Issue 1, dated September 2003, provided guidance for the implementation of safe working practices and traffic control measures with respect to traffic movement around works sites and entering/leaving works sites, prior to the incident. The RTA manual was mandatory on all RTA roadwork sites. 33 Section 2.3, headed 'Definitions', defined a Traffic Control Plan ("TMP") as: i. " A diagram showing signs and devices arranged to warn traffic and guide it around, past or, if necessary through a work site or temporary hazard. The TCP shall detail the location and lengths of all tapers, all pavement marking and delineators, any containment or safety fencing, flashing arrow signs, portable traffic signals, variable message signs, roadwork speed zones, pedestrian routes and any other devices required for guidance at the work or hazard site." 34 Section 2.3, headed 'Definitions', defined a Vehicle Movement Plan ("VMP") as: 1. "A diagram showing the preferred travel paths for vehicles associated with a work site entering, leaving or crossing through the traffic stream. A vehicle movement plan should also show travel paths for trucks at key points on routes remote from the work site such as places to turn around, accesses, ramps and side roads. A VMP may be combined with or superimposed on a Traffic Control Plan." 35 Section 3.6, headed 'Safe Clearances between workers and through traffic', provided guidance for the implementation of safe working practices to prevent injury to workers due to hazards within the works site, the protection of workers from oncoming or passing traffic and the protection of road users from hazards within the work site. However, this section did not provide guidance for the implementation of safe work clearances between workers and mobile plant within the works site. 36 Section 7.1 headed 'Responsibilities of Drivers' it was noted that drivers bore the responsibility of driving safely and in accordance with both the road rules and any existent Traffic Movement Plan ("TMP"). 37 It was further noted within Section 7.1 that care was necessary when entering and leaving traffic streams and turning in conjunction with works on roads. i. "Section 7.4 provided that "when planning road works, attention shall be given to ensuring that traffic associated with the works can safely manoeuvre to and from traffic streams, turn at work areas, depots etc and turn around". "This includes gang trucks, trucks carrying materials works supervisors trucks etc." This section does not provide for the safe manoeuvre within work sites of mobile plant or traffic associated with road works ." 38 The RTA utilised a Traffic Control Plan No: 94 ("TCP"). The TCP outlined the methodology that was to be implemented and utilised whilst the works were being undertaken. The original TCP was found in the RTA TCWS version 3.0 dated September 2003. The TCP used at the site was adopted directly from the TCWS manual but was not adequately assessed to determine if it was suitable for the site. The TCP made no provision to the reduction of speed limits, mobile plant or worker movements within the site, the need for a traffic controller and how the communication was to be maintained by the controller and trucks entering and exiting the site. 39 The RTA Project Engineer, Branimir Curic, drafted the VMP that was in use at the site. The plan outlined the roads that the trucks containing the excavated waste material were to use to enter and exit the site. 40 The RTA TCWS also made provision for speed zones in road works undertaken and required that the speed limit should be reduced to 40km where workers on foot or in plant or both are within 1.2 metres of traffic with no intervening physical barrier or are working within a trafficked area. 41 The regular speed limit along the relevant stretch of Epping Road was 80 km per hour. No physical barrier was in place between the closed lane three and the remaining two open lanes of traffic. All that identified that lane 3 was closed for road works were orange witches hats and signage indicated on the TMP. At the time of the incident, the speed limit was 80km per hour and had not been reduced. The work area was between 1 to 3 metres from operational road traffic. 42 In addition the RTA issued WorkOrder No:003 WBS No W/20145E9 Excavation and Disposal of Material at Various Locations Within Sydney Regions Contract No 07.2231.505 to Terra Civil. It specifically stated that Traffic Control would be provided by the RTA, if required. Risk assessment and safe work method statements 43 Preceding the commencement of the project the RTA had formulated a site specific Road Services Management Plan dated from the RTA pro forma Road Services Management Plan dated 23 March 2006 version 2.0. This folder contained material regarding the contractor's contracts, the site plans, safe work method statements and the legislation to be complied with. 44 On 15 April 2008 an RTA Project Team had undertook an Ensite risk assessment of the site which evaluated the OHS and Environmental hazards associated with the site. The Ensite risk assessment identified the following hazards at the site. 45 The Ensite risk assessment outlined the method in which employees were to cross the road, this included employees crossing at signalised pedestrian crossings with no jay walking. This did not occur as employees routinely accessed the median and the closed lane by jumping the water filled safety barriers. The Ensite risk assessment did not identify the risk or workers working within 3 metres of moving plant and consequently did not have in place a site specific risk assessment which identified vehicle/mobile plant movements within the site as a hazard. 46 The RTA Site Information Package for Bus Corridor 9 Improvement 42 Epping Road and Herring Road issue number 1.0 dated 11 April 2008 point 39, stated that i. " work should not be carried out within 3 metres of mobile plant (this includes within 3 metres of any moving plant, such as the bucket of an excavator). If this is not possible the Team Leader appoints a suitably qualified person to be the 'safety observer' (spotter). " 47 The RTA undertook site induction training for all employees and subcontractors working at the site. Craig Watson Acting Project Quality Assurance Manager conducted the training. The induction package covered a site information package, environmental issues, the VMP and TCP that were in place at the time of the incident. However, it was not a requirement that all workers be inducted into all aspects of the training package. Adamo Spinozzi, Emilio Spinozzi, Frank Antoniazzio were all inducted into the site information package and VMP and were not inducted or informed of the TCP. When asked about their induction all three recalled being inducted to the VMP but did not recall the site induction package and or the specific requirement not to work within 3 metres on moving plant and the need to have a spotter. 48 The RTA ensured that all employees and subcontractors had completed the Construction induction certificates to enable them to work in the construction industry. The RTA ascertained a copy of Kevin Finnemore Construction induction certificate, which Kevin Finnemore completed on 14 March 2008. 49 Craig Watson was also responsible for performing quality checks and ensuring that workers adhered to Safe Work Method Statements. He did this through undertaking site inspections at the roadworks. At the time of the incident there had not been any previous non-compliance issues reported for action to Craig Watson in relation to the site or individuals on site. 50 RTA employees and contractors were briefed on the tasks required for the site via toolbox meetings in the mornings. During these toolbox meetings employees and contractors were provided verbal directives on what work tasks they were to complete and any relevant safety information required for the site. 51 At the time of the incident the RTA had developed a safe work method statement (SWMS) which addressed the traffic control setup using stationary equipment for short and long term works. However, the SWMS did not address the activity of closing traffic lanes and establishing confined working areas as "no go zones" for construction activities in the vicinity of moving plant and vehicles. Furthermore the SWMS failed to address the potential risks associated with not using a spotter to coordinate the safe movement of plant and vehicles within the no go zone. 52 In addition the RTA had published a document titled Tip sheet for Working on foot in proximity to moving plant dated March 2006. This tip sheet outlined the safety controls for both exclusion zones and spotters/observers. It stated i. " as a general rule, workers are not to work within 3 metres of moving plant or within the area of revolving plant. Where the activity requires workers within the 3 metres or within the area of influence, you must ensure that, workers are properly trained, a spotter is assigned to the plant or vehicle, plant operators and vehicle drivers are advised of the proximity of workers on foot. In relation to Spotter/observers the tip sheet outlined that the use of spotters is required for plant and vehicles in the vicinity of workers on foot. This includes, ensuring communication systems are established between observers, workers on foot and plant/truck operators. Spotter must have the authority to stop work where a danger exists for workers on foot from the plant or vehicles. " 53 However this document was not provided to workers at the site nor did it form part of the induction package. 54 Terra Civil had in place a SWMS for the work to be conducted for the project at the time of the incident. It identified the risk of being struck by moving place or vehicles. It required a flagman to be present and that all personnel must remain aware of moving traffic at all times. However the SWMS did not identify the need to have in place communication systems or to have a spotter present when people were working in the vicinity of moving plant. Working in the vicinity of moving plant 55 The RTA Site Information Package stated that i. " work should not be carried out within 3 metres of mobile plant (this includes within 3 metres of any moving plant, such as the bucket of an excavator). If this is not possible the Team Leader appoints a suitably qualified person to be the 'safety observer' (spotter). " 56 At the time of the incident the RTA Team Leader Ratko Ivanovski was on site providing supervision and instruction and was in the immediate vicinity of the incident scene. Kevin Finnemore was working under the immediate instruction of Ratko Ivanovski. 57 Employees and contractors were required to access the closed lane by "jumping" the water filled safety barriers to retrieve orange safety cones and to pick up earth that had fallen onto the road from the excavator bucket. On the day of the incident both David Ball and Kevin Finnemore had been observed in the closed lane (lane 3) moving orange safety cones to allow the Terra Civil prime movers to enter the closed lane. They would then place the orange safety cones back in a position to cordon off the lane to passing motorists. Kevin Finnemore was also observed in the closed lane clearing dirt and debris off the road that had fallen whilst excavated material was being transferred into the trailers so as to remove it from the site. 58 The risks to pedestrians/workers associated with the movement of mobile plant/vehicles on work sites, are both obvious and well known in industry. 59 The WorkCover Code of Practice "Moving Plant on Construction Sites" ("the Code of Practice") came into effect on 16 January 2004. The Code of Practice was in operation as at the date of the incident and the Code of Practice applied to the movement of both mobile plant and road vehicles, within the site: Chapter 1, Section 1.2 and 1.3 of the Code of Practice states, in part, that: "1.2 Purpose : This code of practice provides practical guidance to prevent injury to people where moving plant is used at construction sites. 1.3 Scope This code of practice applies to the use of moving plant at all construction site places of work in NSW, except mines." 60 Chapter 3, Section 3.2 of the Code of Practice states, in part, that: i. " Vehicle movement procedures should be developed based on the risk assessment and should be updated each time the conditions on the site change in a way that may affect the health and safety of persons at the workplace. It should also include an assessment of the visibility of plant and traffic from all areas of the work site. ii. The use of specific measures to eliminate or control identified risks should be done on the basis of the risk assessment. In particular, consider the following: iii. isolating vehicles and plant used in or around the site and work area from persons on the site or work area. For example, vehicles or persons may be guided around or past the work area; iv. implementing safe work distances v. identifying designated delivery and turning areas vi. planning the direction that plant moves, so the visibility of operators is not restricted; vii. using spotters/safety observers to control traffic movement" 61 At Chapter 3.3 controls for the safe operation of plant were listed and included: i. Vehicle movement procedures for positioning and repositioning of plant - these procedures should include specific procedures when plant is operated near persons, near underground or above ground services, moving plant onto a public road from site or reversing plant ii. Instruction and information about hazards iii. All persons who perform work using (or on) powered mobile plants must be adequately instructed in the hazards associated with the plant and carrying out the work on site and the control measures for safe work" 62 At Chapter 3.3.3 controls for pedestrians near moving plant referred to the need for a spotter and the need to ensure no persons are at risk before reversing. It was specifically noted a spotter should always be in the sight of the plant operator. 63 The RTA did not have a procedure to clean up earth that had fallen onto the road in the closed lane. The RTA did not have a documented or formalised procedure for the use of this Geotech. Communication 64 There was no safe system of communication in place at the site between the employees and supervisors of the RTA, Terra Firma and other subcontractors. As a result, employees and supervisors were unable to consistently and adequately inform each other of worker and vehicle/mobile plant movements within the site. 65 At the site there was an inconsistent understanding of communication systems. David Ball stated that the sounding of a horn from either the excavator or the truck would signify to employees that trucks were departing. Adamo Spinozzi stated that he would signal by either a wave or a nod. Alternatively, he suggested that he would beep the horn. 66 At no stage did the RTA ensure that communication systems are established between observers, workers on foot and plant/truck operators as recommended by the Tip sheet for Working on foot in proximity to moving plant. 67 At no stage did Terra Firm ensure that they had an agreed communication system in place that was understood by all workers that they were working with, including David Ball, Ratko Ivanoski and Kevin Finnemore. 68 An expected outcome of how communication could have been attained is outlined in the Code of Practice 2004 for Moving Plant on Constructions Sites Chapter 3.2 Assessing and controlling common risks. It states that procedures should be implemented to warn all workers of the potential hazard and that these should include a system of communication and warning to persons near the delivery point. 69 In addition prior to the incident an RTA employee David Ball was required to undertake traffic control duties with an expired traffic control ticket. Additional work requests by the RTA of Kevin Finnemore 70 Online did not provide any instruction to either Kevin Finnemore or the RTA that no work was to be undertaken by Kevin Finnemore which was outside the scope of the contractual duties without prior consent. 71 Online Concrete Sawing had no procedures in place to assess if the additional tasks requested were safe and Kevin Finnemore qualified to undertake it. Online Concrete Sawing solely relied on the RTA supervisors and team leaders to contact them if there was an issue. 72 Online did not have in place any Safe Operating Procedures for the operation of the watercart at the roadworks site. At the time of commencing employment with Online Concrete Sawing Kevin Finnemore was given a brief verbal overview regarding safety. This overview which was considered to be his induction included a demonstration on how to operate the plant and a verbal request from Mr Charan for Kevin Finnemore to stay within your truck to be on the safe side. 73 At no stage did Online inform or instruct Kevin Finnemore not to perform work when out of his water cart when working within three metres of moving vehicles without a spotter or observer being present. 74 At no stage did Online undertake a risk assessment that identified and considered the risk where a spotter or observer was not present to coordinate the safe movement of plant and vehicles when people were working within three metres of moving vehicles. In addition, Online did not enquire as to what measures or steps the RTA had taken to identify and consider the risk. Systems in place following the incident 75 On 1 May 2008 Inspector Amanda James issued the RTA a "Prohibition Notice No: 148874 was on the RTA requiring that persons accessing/egressing from exclusion zones should cease immediately to prevent being struck by moving plant/vehicles. The RTA was required to develop implement and maintain a safe system of work to control the safe movement of persons in the workplace where there are moving plant/vehicles. 76 An Improvement Notice No: 26890 was also served on the RTA requiring that persons are provided reasonable supervision from a competent person for employees at this place of work. The RTA was to provide reasonable supervision from a competent person for employees at the place of work. 77 After the incident WorkCover issued an industry Safety Alert titled Moving Plant on Construction Site (undated). 78 Following the incident and in compliance with the notices issued the RTA engaged the services of an external contractor HMS Traffic Pty Ltd to redesign the Traffic Control Plan. The amendments to this plan included reduction in speed along Epping Road, leading up to the road works, spotters for trucks on site and the introduction of no go zones. 79 The RTA amended the original SWMS, which addressed the Traffic Control Setup using stationary equipment for short and long-term works. This SWMS addressed the areas of closing traffic lanes and establishing no go zones and spotters for plant and vehicles entering the no go zone. This information was then delivered to employees at toolbox meetings. 80 Following the incident there was an increase in the number of toolbox meetings to employees and contractors. On 5 May 2008 during the course of the toolbox meetings the Tip sheet working in close proximity to moving plant dated March 2006 was emphasised to employees and contractors. 81 RTA employee David Ball had his expired traffic control ticket renewed. Relevant Principles 6In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(2) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, and 34 of the Crimes (Sentencing Procedure) Act 1999). The Court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 7Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing Court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 8Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 , correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying, at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]). 9The object of the Act is to protect employees from risk to safety, health, and welfare whilst compelling attention to occupational, health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, the Court observed, at [9]: In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ... are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' 10Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, ... (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . Consideration 11In a consideration as to penalty, the Court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464, ad idem with the view expressed in Markarian (at 474), that: ...in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"... and in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected... 12The defendant corporation is a family operation. Three members of the Spinozzi family were on site on the date of the incident; one operating the excavator and the other two members driving the prime movers with attached dog trailers. 13As a sub-contractor, the defendant company was given a Traffic Control Plan from the RTA which contained the principles applicable to guide the particular risk assessment on site and the preparation of safe work method statements. The safe work method statement made no provision for speed limits, nor a spotter, nor for internal communication between the RTA and the sub-contractors. The risk assessment did not identify the risk to employees on foot working around moving vehicles. The work order from the RTA stated: Specific requirements Traffic Control Plan: Use TCP No: N/A Additional requirements attached: Traffic control will be provided by the RTA, if required. 14The "TCP" is the various Traffic Control Plan modules designed by the RTA. It is of note no module was held to be applicable to activity on this site. Therefore, the documentation given to the trucking company by the RTA failed to identify the relevant risks. The defendant corporation did not do its own risk assessment nor did it prepare independent work method statements for the site. It had, however, adopted a generic work method statement for the project in that there was no requirement for the provision of a spotter to assist in the safe movement of vehicles on the worksite, nor for internal site communication. 15The corporation had radios fitted to each truck to allow communication between trucks. The system also allowed its drivers to notify the RTA of each truck's intention to enter the worksite. Mr Emilio Spinozzi, a director of the corporation, revealed that, at the time of the incident, his truck had been directed onto the site by the RTA but: it was customary practice to sound the horn to indicate that the vehicle was preparing to leave the site. Hand gestures were also used. His statement infers there were no other obligations on the truck driver when leaving the site. 16The failure to ensure a spotter was on site led to no one checking that the three metre exclusion zone was maintained so that employees on foot were not within the dangerous area while there was truck/plant movement. The failure to ensure communication was also a failure to have communication between the defendant's employees and the RTA operators (including employees instructed by the RTA). The drivers were not instructed by the corporation as to the three metre exclusion zone. 17There may have been confusion as to who was obliged to provide the spotter - given the work order indicating traffic control was the RTA's responsibility. However, the defendant corporation has, under the Act, the overriding obligation to ensure safe working. The risk was clearly the danger that the movement of its heavily laden trucks provided to other employees on foot at the worksite. 18There was a foreseeable element to the offence given the recognition in principle of the need for a spotter and an internal communications system on such worksites. The defendant agreed, however, that it had been inducted as to the traffic control plan: The Epping Road site was at all times under the supervision and control of the RTA who was the designated principal contractor for the site. The RTA inducted myself and the other persons working for Terra Civil into their traffic control plan for the site. (The RTA) established maintained and supervised the traffic control systems in operation around the site. Neither party recognised the failure to identify that the plan did not provide safe work practices designed to protect labourers on such a work site. The offence becomes more serious once there is an element of foreseeability to the incident. Once known safety standards to protect against an obvious risk were excluded from the traffic control plan and safe work method, there was a foreseeable element to the offence. 19The company continues to operate in the excavation industry so an element of specific deterrence is relevant. As to general deterrence, a call must go out to all involved in the construction and maintenance of our roads - an industry where there are often many sub-contractors employing people performing different tasks on the one worksite - that recognised safe working procedures must be adhered to on worksites. In this matter, the failure to have on site a spotter and a site related internal communication system brought about the failure to ensure the safety of a young employee. The defendant corporation and the RTA had recognised and identified safe procedures to address the known risk where there were, on the one site, moving vehicles and employees on foot. Had those warnings been heeded and the recognised basic safety procedures been implemented at this worksite the tragedy could have been avoided. There is an obligation on sub-contractors to refuse to work until all the recognised safety features of a safe work method are in place at their worksites. The Act requires sub-contractors to be active to ensure safe work methods are followed. After another incident involving the movement of vehicles on a road works site (where the RTA was not prosecuted) the Court commented in Inspector Rowe v Eagle Eye Traffic Services Aust Pty Ltd [2010] NSWIRComm 31 that at [27]: ... Co-ordination must be a priority on sites with multi sub-contractors. I accept, in accordance with modern industrial practice, it may be a sensible industrial decision for an authority like the RTA to contract out the upgrade and maintenance of its roads to specialist sub-contractors with specific skills. Hence, on this site, we had the Planner, the Asphalter and the Road Traffic Controller. Such contracting out, however, must ensure there is a rigorous planning instruction and training of all employees brought onto a multi-disciplinary worksite. Job specifications must be clear and each defendant must ensure there is, on the worksite, full compliance with its safety obligations. In this circumstance, while each party could present safe work models and plans and there were site safety meetings, there was a failure to co-ordinate each sub-contractor's operation. ... 20This incident is but another reminder of the need to co-ordinate activities on such dangerous worksites. In this circumstance, the risk to safety became reality. The words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 at [5] I find apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant... 21There was, I accept, a significant contribution to the risk from the RTA given the failure as the head contractor to ensure control of moving traffic off this worksite and the failure to ensure Mr Finnemore, working under the control of the RTA, was not working within three metres of moving vehicles on the site. 22The defendant corporation has produced very little detail as to its pre-existing safe work procedures. While it had a Safe Work Method system which identified the risk provided by moving vehicles, it did not identify, when there were persons on site on foot, the need for a spotter or on-site communication. However, the defendant has revealed that since the incident: 14.1 We have employed a Compliance Manager on a full time basis to undergo the following responsibilities: (i) Overlook compliance; (ii) Ensure safety measures are in place for every job; (iii) Risk Assessments; (iv) Occupational, Health & Safety representative; (v) Creation of SWMS; (vi) Maintaining on-site safety folders; (vii) Ensuring all employees obtain relevant and current licenses, maintain license database; (ix) Information Directors of new Safety; (x) Maintaining Quality Management Systems; (xi) Overlook the OHSM System; And added: 15. Now as part our site assessment process we determine whether a spotter is required as part of the Vehicle Movement assessment for that site where necessary we employ a spotter even if not required to do so by the principle contractor for that site. 23Other adjustments to the pre-existing communications system have been adopted including a new digital two-way radio system for better communication between the company's vehicles as well as the provision to its drivers of UHF radios which allow communication on worksites with the RTA. All the defendant's employees have been re-trained and are introduced to specific safe work methods for each new work site. 24The defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the offence. It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors, identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999, relevant to the defendant. As was said in R v Way (2004) 60 NSWLR 168 at [56]: ...it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 25In Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99, the Full Bench observed at [106]: We accept that there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OH&S Act . ... I accept the defendant entered an early plea. In accordance with the principles of R v Thomson; R v Houlton, I accept there is a utilitarian value to the defendant's early plea of guilty. I allow in the circumstances a 25 percent discount for the utilitarian value of the plea. 26The principle of parity is relevant in this consideration in the circumstances. The Court must weigh up the seriousness of the risk and the different circumstance of each defendant who faces a breach of the Occupational Health and Safety Act 2000 arising from the same incident. On consideration as to this defendant's contribution to the risk, I determine it carries a lesser liability in the circumstances than that carried by the RTA. However, there must be equal justice between the parties. The parity principle was stated by Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at (301-303) as follows: ...The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for me [12]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [13]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen [14], recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance" [15]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. ... 27In this matter, four defendants have been prosecuted for offences under the Act arising from the same incident: the head contractor (the RTA); the defendant (the vehicle operators); the corporation (South Coast Excavators Pty Ltd) who provided the services of the deceased and its director (Jai Ram Charan). It is appropriate, therefore, for the Court to adopt the approach taken by the Full Bench in Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 (at 341) where the Full Bench referred to the principles stated by Mason J in Lowe v R (1984) 154 CLR 606 (at 610) as follows: Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. 28The defendant company is a family company owned by Mr Emilio Spinozzi and his brother and fellow director, Adamo. The company was first established by their father. It now employs three plant operators, five truck drivers, a Compliance Manager and a general duties labourer. It is, I accept, a small family corporation and while it asks for no special financial consideration, it does not present as a major corporation with significant financial resources. The defendant provides employment in the road works and construction industries in New South Wales. The brothers support young families. I accept the corporation is a good industrial citizen. It has been operating for 30 years with no prior convictions. The maximum penalty is $550,000. 29I accept the director's expression of remorse. It was difficult for the defendant to provide any other assistance given Mr Finnemore had no family. Given the revised work methods I accept the expression of contrition. 30Nonetheless, in the consideration of penalty, this was a serious breach of the Act where the corporation, in simply adopting RTA policies, failed to independently meet its obligation for safe working by: not ensuring co-ordinated movement of its trucks on a site where persons were working on foot; failing to have a dedicated communication system for work on site; not performing its own risk assessment at the site; failing to comply with known safe working procedures such as ensuring a spotter was on site and that there was a safe distance between moving vehicles and labourers. Generally, the defendant simply adopted RTA procedures but then did not ensure known safe working procedures were implemented or were even acknowledged in its own safe working document. 31I find the defendant guilty. The defendant is fined the sum of $120,000 with a moiety to the WorkCover Authority. Orders 32The Court makes the following orders: (1)In Matter No IRC328 of 2010, I find the defendant guilty of the offence as charged. (2)The defendant is fined in the sum of $120,000 with a moiety to WorkCover Authority of New South Wales. (3)The defendant to pay the costs of the Prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. 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. Decision last updated: 29 March 2011