Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nikolovski v Multi Civil & Rail Services Pty Ltd [2011] NSWIRComm 116 Hearing dates: 18 August 2011 Decision date: 26 August 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a) the defendant, Multi Civil and Rail Services Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act as particularised in the Amended Application for Order in Matter IRC 1093 of 2010, to which the defendant entered a plea of guilty; (b) the defendant is fined the sum of $125,000 with half that sum to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) - guilty plea - service work provided by defendant to rail industry - use of hydraulic ram to lift and lower heavy ramp - float truck used to convey slasher tractor to and from work sites - hydraulic operation of ramp rendered impossible by loss of connecting clevis pin - pin not repaired before work resumes - heavy ramp falls on employee during unloading operation - employee rendered paraplegic - first offence - early plea - good prior safety record - serious breach accepted - unusual circumstances lead to normal safe practices not being applied - need for greater detail in safe work method statements for checking and operating hydraulic ramp - use of Victims Impact Statement considered - penalty imposed. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Siganto v The Queen (1998) 194 CLR 656 Category: Principal judgment Parties: Inspector Steven Nikolovski (Prosecutor) Multi Civil & Rail Services Pty Ltd (Defendant) Representation: D O'Neil of counsel (Prosecutor) W Thompson of counsel (Defendant) Criminal Law Practice Legal Group WorkCover Authority of NSW (Prosecutor) Heard McEwan Legal (Defendant) File Number(s): IRC 1093 of 2010 Judgment 1Multi Civil and Rail Services Pty Ltd ("Multi Civil") is a company that provides labour and machinery hire to State Rail and other rail providers. On 7 October 2008 two of the company's employees, Mr Mark Paton and Mr Rex Barrett, were performing work at a railway corridor at Minnamurra on the New South Wales South Coast. The task of the two men on that day was to cut a large area of grass in the vicinity of the rail corridor. This task was to be carried out using a slasher tractor that had been brought to the site using a float truck. The float truck was fitted with a flat tray and a loading ramp operated by a hydraulic ram. In the normal course of transporting the slasher tractor on this float truck, the tractor would be separately secured on the flat tray. The ramp was used to allow the loading and unloading of the slasher tractor. The ramp was held in a vertical position at the rear of the truck tray and secured in place by chains on either side of the ramp. The ramp was also held in place by being connected to the hydraulic ram that was connected to the raised ramp by a hook or metal arm through which a clevis pin was inserted to secure the hook or arm to the hydraulic ram. The clevis pin was held in place by an A clip. 2On the previous working day, 3 October 2008 (a long weekend having intervened,) the clevis pin had dislodged from the arm connected to the elevated ramp resulting in the hydraulic ram dragging along the ground. This occurred while the float truck was being driven along a public street in Minnamurra. A search of the roadway led to the recovery of the clevis pin but the A clip was not found. The truck was then driven back to the worksite where, at the completion of the day's work, the clevis pin was re-inserted and the hydraulic ram successfully operated which allowed the slasher tractor to be loaded on to the truck and the ramp returned to its elevated position. Steps were taken to secure the hydraulic ram and the elevated ramp and when those tasks had been completed, the clevis pin was removed from the arm connected to the elevated lamp in order that it would not be lost again by working loose. On return to the work yard the employees informed supervisors of the problem. 3When work resumed on the next workday, 7 October 2008, the clevis pin had not been repaired and the mechanic responsible for repairs was not present at the yard. A large amount of work was still required on the rail corridor at Minnamurra and the work team of Mr Paton and Mr Barrett were now running late. Mr Paton spoke to the yard manager and while the yard manager indicated that the mechanic would come in to repair the truck, Mr Paton indicated that he could get by for the time being. The work team returned to the Minnamurra site and in the course of unloading the slasher tractor the elevated ramp fell on Mr Paton causing numerous injuries, including spinal injuries that ultimately rendered him a paraplegic. 4Inspector Nikolovski, following a WorkCover investigation, commenced proceedings in the Court alleging that Multi Civil & Rail Services Pty Ltd (the defendant) had breached s 8(1) of the Occupational Health and Safety Act 2000 by failing to ensure the health, safety and welfare at work of all its employees and in particular Mr Paton and Mr Barrett. 5The defendant company entered a guilty plea to an Amended Application for Order that was particularised in the following terms: The particulars of the charge are: Particulars of the risk (a) Employees of the defendant were exposed to the following risk to their health and safety arising from the use of Mitsubishi FM515 plate No YVG 764 ("the float truck"). i. the risk of injury due to being struck by the ramp at the rear of the float truck. ii. the risk of injury due to being crushed by the ramp at the rear of the float truck. Particulars of the acts or omissions Plant (b) the defendant failed to ensure that the float truck provided to employees was safe and without risks to health when properly used in that the clevis (safety) pin connecting the hydraulic ram and loading ramp of the truck was not secured in place at the time the truck was provided for use at work; (c) the defendant failed to ensure that the float truck was not used unless and until the defect related to the clevis pin connecting the hydraulic ram and loading ramp was rectified and the clevis pin was secured in place; (d) the defendant failed to ensure that there was in place a safe work method statement in relation to the float truck which adequately identified a procedure for the safe use of the hydraulic ram, loading ramp and clevis pin; Systems of work (e) the defendant failed to maintain a safe system of work that ensured that plant which was damaged, broken or defective in any way was repaired prior to its further use. In particular, the defendant failed to ensure that the float truck was not provided to employees until it had been repaired when it had been reported that the clevis pin had fallen out of its position; (f) the defendant failed to maintain a safe system of work that ensured that all damaged, broken or defective plant was tagged out and that the keys to operate such a plant were collected and access to the keys secured until the plant was repaired. As a result of the above listed acts and omissions the defendant placed its employees and in particular Mark Paton and Rex Barrett, at risk. 6This judgment deals with the evidence and submissions regarding the sentencing of the defendant. The prosecutor's evidence comprised of an Agreed Statement of Facts and a bundle of documents that included the following: (a) 36 photographs of the truck, the hydraulic ram, the clevis pin and the ramp; (b) a factual inspection report prepared by a WorkCover Inspector; (c) a pre-job plant inspection checklist used by the defendant prior and at the time of the accident; (d) a Safe Work Method Statement ("SWMS") for the float truck that was applied by the defendant up to the time of the accident; (e) a pre-operational safety checklist for the float truck with hydraulic ramp adopted by the defendant following the accident; (d) a SWMS for floating plant and equipment adopted by the defendant following the accident; (e) the defendant's Policy Manual dealing with "Quality Health and Safety (Fatigue, Alcohol and Drugs) Environment Code of Conduct"; (f) the defendant's integrated management system procedures; (g) a prior convictions certificate indicating that the defendant had no prior occupational health and safety or related convictions. 7Counsel for the prosecutor also handed up a Victims Impact Statement prepared and signed by Mr Paton. At the conclusion of the evidence and submissions on sentencing, the Court announced that it was satisfied that a conviction should be entered against the defendant and that the Court would give consideration to the Victims Impact Statement prepared by Mr Paton. The Agreed Statement of Facts appears as an annexure to this judgment. 8For the defendant, two affidavits were read: the first sworn by Mr Tory Lavalle, the General Manager of the defendant, while the second affidavit was sworn by Mr Gabriel Bresolin, trainer and safety presenter, an employee of a company providing its customers with industrial training to management and staff. 9Mr Lavalle's affidavit dealt with the duties of his position and his qualifications and provided background as to the nature of the defendant's business and its relationship with Rail Corp. The evidence hen dealt with, in some detail, the management and safety systems adopted by the defendant prior to the accident and amendments made to those systems following the accident involving Mr Paton. As the general manager, Mr Lavalle was directly in charge of the yard, all plant, machinery, vehicles, equipment and all of the workmen. He stated that he worked one-on-one with the yard managers and the yard mechanic employed by the defendant. He had the day-to- day control of all activities undertaken by the workmen, the use of plant and equipment and he supervised them all through yard mangers. The yard manager for Unanderra was Mr d'Aloia. Mr Lavalle annexed many documents to his affidavit and counsel for the defendant helpfully took the Court through that material and provided an explanation of their relevance to the proceedings. 10Consideration of that material demonstrated that the defendant, through its senior management, had given serious consideration to appropriate safety mechanisms having regard to the nature of the business undertaken by the defendant. Mr Lavalle had a long involvement with the Rail Services Industry having commenced employment with State Rail in the early 1980s. Later another person was engaged and ultimately became a director, namely, Mr John White, who had a similar background. These senior members of the company were well versed in the nature of the rail industry to which they were supplying services. 11The company had commenced business in 2002 and as the business grew, Mr White was approached with a view to looking after specified areas of the company and the preparation of tenders for work from State Rail, Rail Corp and National Rail. Mr White had an extensive background in occupational health and safety and protection work as a result of his employment with Rail Corp. He was given the task of reviewing the defendant's practice and procedure manuals, its safety documents, its SWMS and pre-job check lists. 12In 2006, Mr White totally reviewed the company's safety policies and procedures. Prior to that the defendant company had engaged a consultant to provide safety policies and procedures. The consultant's safety documents were reviewed and were found to be too generic, not always being relevant to the task undertaken by the defendant and not providing adequate guidance for tasks performed by employees and contractors. Mr White developed SWMS specifically for tasks performed by the company having regard to the plant and equipment provided to its employees and contractors. These statements were developed in consultation with other employees and contractors. In 2008, Mr White became a director of the defendant. 13Mr Lavalle spoke of the growth of the defendant company since the time of the accident involving Mr Paton. At that time there were approximately 30 employees who were mostly engaged as protection officers and rail track workers. Over the past four years the defendant had continued to provide plant, equipment and machinery to the rail service industry and provided protection officers to Rail Corp and others. At the time of hearing there were 130 employees working for the company and at weekends that number increased to approximately 200. 14The defendant company had always employed its own plant mechanics although it used external services for the repair and maintenance of plant. At the time of the accident a qualified mechanic was engaged in full-time work at the Unanderra yard. The company also employed a safety manager to attended to all the compliance and training needs of the employees who held certificates as rail protection officers and other certificates related to the rail service industry. At the time of the accident approximately 80 per cent of the defendant's employees had held certificates as rail protection officers and those certificates required a re-assessment every two years. Mr Lavalle also noted that, in the month of July the defendant had provided over 20,000 man-hours to the rail industry without a single incident, injury or problem. Another fact noted was that the float truck involved in the accident was the only truck of this type used by the defendant. 15The relationship between the defendant and Rail Corp was explained, including the need for the company to accompany a tender with a SWMS, pre-job checklist and other safety procedures for the work involved. There was a SWMS for each vehicle and item of plant used in the defendant's operations as well as pre-job start checklists. Rail Corp would frequently forward safety alerts or updates and key staff would be advised of those developments and the information would be circulated in various ways to employees of the defendant. Company safety bulletins and other information regarding safety were attached to a staff noticeboard and the defendant was subject to Rail Corp audits. Rail Corp now undertook six-monthly audits and listed items that required reviewing. In recent times Rail Corp did not require the defendant to review any items. 16In 2006 a SWMS and pre-job plant inspection checklist had been developed for the float vehicle that was ultimately involved in the accident. These documents were provided daily to employees rostered to use the vehicle and for 18 months prior to the accident, Mr Paton and Mr Barrett had used the truck but had not reported any faults in relation to the clevis pin or the operation of the hydraulic ram. At this time all the defendant's vehicles and plant had SWMS and pre-start checklists in the cabin to be completed by the crew who were rostered to use the vehicles or plant. The appropriate SWMS and checklist were determined when the work was allocated and was provided in a folder on the afternoon before work started. 17Both before and after the accident, Rail Corp required the defendant's employees to complete the relevant SMWS and the pre-start checklist sheets. Mr Barrett, in relation to the float truck, was required each day to report to the Rail Corp representative. Following the accident, the defendant and Rail Corp developed a pre-work briefing form that was now located in a bound volume with a triplicate copy so that all parties could keep a record. After the accident Mr White, in consultation with the managers and operators, modified the documents. 18Mr Lavalle gave evidence as to how the company's policy manual, management system and procedures and an integrated system manual had been developed in consultation with employees and management and how it had been updated twice since the incident. In January 2008 Mr Paton had been provided with a copy of the policy manual. 19The defendant company had developed a policy covering breakdowns of equipment in the field. Prior to the accident and following it, the company's policy was that, if any plant or machinery broke down in the field while on a job, the employees were to call Mr Lavalle or the yard manager but were not to repair the vehicle or equipment. A mechanic employed by the defendant or the yard manager was to attend the site and inspect the reported defect. That procedure had been passed on to all employees and had been used on previous occasions by Mr Paton and Mr Barrett. Examples of that procedure being followed by the pair were detailed in the evidence. For approximately 12 months prior to the accident only Mr Paton and Mr Barrett had used the truck: Mr Paton was regarded as a very reliable worker who was diligent in regard to the truck and attentive to the company's practices and procedures. 20In relation to this accident, Mr Lavalle understood that the two workers had informed the yard manager that the clevis pin had become detached from the hydraulic ram while they were returning to the yard late in the afternoon on 3 October 2008. Mr Lavalle and the yard manager were unaware that the clevis pin had become detached at approximately 1.30 pm on that day or that the workers had inserted the clevis pin in order to load the tractor and return it to the yard. Mr Lavalle could not think of any reason why the workers had not informed him or the yard manager that the defective pin had been discovered at approximately 1.30 pm or that the pin had become detached while driving back to the yard. It was noted that Mr White was not at the yard on 3 October 2008 nor on the morning of 7 October 2008 because of personal commitments. Prior to the accident, neither Mr Lavalle nor the yard manager had informed Mr White that Mr Paton had reported that the clevis pin had become detached from the hydraulic ram nor was the defect recorded on the whiteboard. 21Mr Lavalle explained the operation of the tag out system. That system applied to all of the defendant's plant, equipment, vehicles and machinery and was set out in the employee policy manual. All employees and contractors were inducted and informed of the system and the yard manager and Mr Lavalle had the daily responsibility of checking that the system was being complied with by employees and employers. Mr Lavalle had seen the system working in the defendant's operations and how tagged out plant had been noted on a large whiteboard in the common area frequented by the staff. 22The defendant's policy required that faulty equipment or equipment requiring service was to be tagged and also the keys were to be removed and placed in a locked box within the yard manager's office so that the equipment could not be used until the defect or service was completed. Mr Lavalle had observed this system in operation. While conducting random field audits Mr Lavalle had been informed by staff that pieces of equipment were not operating and he had given a direction that the machinery be tagged and arrangements made for the yard manager to be informed. Yellow tags were used for equipment requiring servicing and red tags were used for faulty plants. Laminated tags were used so the fault or service could be written on the tag with a marker pen. Laminated tags were available in the common area adjacent to the yard so that all employees and sub-contractors could be aware of their location. 23Mr Lavalle also noted that all machinery, plant and vehicles were serviced frequently and not less than every three months and/or every 5,000kms and 10,000kms. All vehicles had a running sheet, including the float truck. Mr Lavalle gave details of how the repair and maintenance work was carried out and how the tag out system operated. He also spoke of how the whiteboard system operated and how the keys for vehicles had been secured and work allocated. 24Mr Lavalle gave detailed evidence about the system of induction and training and the role of protection officerd in the defendant's operations. He explained how, as general manager, he conducted random field audits and conducted at least one safety audit per fortnight although often there were weekly safety audits. Mr White monitored the company's incidents register and there had been no serious injuries or accidents other than Mr Paton's accident in October 2008. The company monitored employees' fatigue and Mr Lavalle explained the documents used in that system. 25Mr White spoke frequently with supervisors and spoke everyday with the safety manager about protection and safety issues. Mr White and Mr Lavalle spoke everyday about issues regarding the defendant's operation, including safety. When new equipment or machinery was to be acquired, a SWMS was prepared in consultation with the safety manager, Mr Lavalle and the yard manager as well as operators using the new equipment and training would then be provided. Whenever safety initiatives were introduced or changed or alerts had been issued, Mr Lavalle ensured that all staff were aware of those changes and described the numerous methods adopted to spread that information. 26After the accident, the SWMS for the float truck and the pre-job checklist were updated to include directions concerning the hydraulics, pneumatics and the risks arising while loading and unloading plant and equipment on to the truck. Mr Lavalle said that the resource material available to review the SWMS for a float truck was very limited and there was not a great deal of information available on WorkCover's website or on any other operator's website. The defendant determined that it was necessary to create its own SWMS and engaged the assistance of Mr Bresolin, a safety consultant, to assist to develop a training course. It was noted that Mr Bresolin had great difficulty in finding relevant material for a SWMS for a float truck but over time such a statement was developed, together with course documentation for the safe loading of the float truck. 27Mr Lavalle stated that, after the accident, all the staff, including the senior staff, were most upset and shocked at the accident and the injuries suffered by Mr Paton. On behalf of the company he expressed sincere regret and remorse to Mr Paton and his family that the accident had occurred. The company had in the past and would continue to assist Mr Paton and his family financially and emotionally. When Mr Paton was in hospital receiving treatment, the defendant assisted the family by arranging and paying for accommodation close to the hospital. At the annual Christmas party Mr Paton was invited to attend and arrangements made for his wife to attend, including making available accommodation and having a function at an appropriate venue. Mr Paton was involved in company activities wherever possible. The defendant had recently paid for upgrades to Mr Paton's vehicle in relation to accessible gears, air conditioning, appropriate seating and other necessary fittings to improve his mobility. 28In relation to community activities, the defendant sponsored a number of local clubs and community activities and Mr Lavalle spoke of particular assistance given to ten such organisations. Mr Lavalle was not required for cross-examination. 29Mr Gabriel Bresolin was an employee of the consultant Edmen, a company that provided its customers with industrial training for their management and staff. He had been a training and safety presenter in the heavy industry market for approximately 30 years and was a chartered fellow of the Safety Institute of Australia. He was a WorkCover accredited trainer. He had been engaged by the State Rail Authority, now known as Rail Corp, to provide training to its employees throughout New South Wales, especially in relation to the white card required to enter construction and industry sites. 30In mid to late 2009 Mr White, of the defendant company, had contacted him seeking assistance in the development of a SWMS and training course regarding loading and unloading float equipment vehicles. WorkCover had referred Mr White to Mr Bresolin after Mr White indicated that he had been unable to obtain industry information regarding a SWMS or training courses for his staff regarding loading and unloading a float vehicle. 31After conducting his own investigations, Mr Bresolin was surprised to find that such training courses or SWMS as required by Mr White were not in existence. Mr Bresolin had been told about the October 2008 injury and how the loading ramps had dislodged and had fallen on an employee. He understood that the defendant had been improving its SWMS but needed help with developing a training course. Mr Bresolin conducted a number of meetings over the months with the defendant, Mr White and Mr Lavalle and other key staff to determine what they needed and how best to implement, present and educate on the topic. Mr Bresolin reviewed industry specific websites and databases looking for similar SWMS and training material but was unable to find anything of use. He looked at the Caterpillar website as well as local float trucks suppliers but again was unable to locate any useful material. 32Mr Bresolin thereafter determined that it was necessary for him to develop a specific SWMS and training course with the assistance of the defendant company's management. He examined the company's equipment and spoke to staff and asked them to demonstrate the normal loading and unloading practice. He considered theoretical approaches and safety initiatives and then spoke with Mr White and Mr Lavalle regarding a practical approach to developing the necessary SWMS. In this exercise he was required to build the training course "from scratch" basing it on normal industry practices and procedures as well contacting several other heavy machinery operators regarding their safety methods and procedures for loading and unloading floats. Mr Bresolin provided details of the training course he had developed and how he implemented that course. Mr Bresolin was not required for cross-examination. DELIBERATION 33Significant issues in the sentencing process are the maximum penalty applicable for the offence and the objective seriousness of the offence. In this case the defendant is a first offender and the maximum penalty available is $550,000. The objective seriousness of the offence is not in doubt: there was a frank concession by the defendant that, in the circumstances particularised in the Amended Application for Order, there was risk of a crush injury caused by the falling ramp, itself weighing between 250 kgs - 300 kgs, that was capable of inflicting injuries that could cause death. In this particular accident Mr Paton was rendered a paraplegic because of spinal injuries but suffered a range of other injuries. Those injuries are ample evidence of the serious nature of the breach. 34There was also a frank concession by the defendant that the risk particularised was readily foreseeable: there was a general risk associated with the handling of defective equipment and machinery although it was accepted by the prosecutor that the defendant did not actually foresee this specific risk revolving around the clevis pin. The prosecutor also frankly accepted that this was not a case where the corporate mind of the defendant had not addressed workplace safety and that the evidence demonstrated that there was a considered system of safety and operation, although demonstrating two defects: firstly, the system of safety revolving around machinery requiring repairs, withdrawing it from service, tagging it and notifying the workforce that the machinery was not to be used until repaired and the isolation of keys to operate the equipment for various reasons had not been followed; secondly, there was a lack of detail in the steps to be taken to safely operate the slasher tractor. 35The prosecutor accepted that, had this defendant foreseen the precise circumstances revolving around a faulty clevis pin, the evidence indicated that it would have addressed that risk. While there was, therefore, a failure to ensure adherence to the safety system laid down by the defendant, there was also a lack of detail in the defendant's system and in particular, addressing what should be done in relation to the float truck when there was a faulty clevis pin leaving the ramp vulnerable to falling when the holding chains were released. In addition, it was noted in the Statement of Agreed Facts that Mr Barrett and Mr Paton only undertook a basic check of the float truck each morning, focusing on lights, flashing lights and brakes but they were unclear as to who was to fill out the document, each suggesting that it was responsibility of the other. 36The Court accepts the submission for the prosecutor that, although the defendant had in place an integrated management system and company policy manual with generic pre-start documents and the requirement for a SWMS, the SWMS was drawn in terms that did not fully recognise the grave risk presented by a faulty hydraulic ram and ramp, including pre-operational checks of these items. The assessment of the risks flowing from the use of the truck was not sufficiently extensive. The steps taken by the defendant to address these issues after the accident were simple and uncomplicated. The safety check now required reporting of any defects found during the pre-work check and the vehicle was to be quarantined in such circumstances. New documents were introduced detailing these matters and improved communications were undertaken: these steps were simple and straightforward and could have been taken prior to the accident. 37These matters were not seriously challenged by the defendant although the occurrence of this accident was placed in the context of a well-developed safety system where the general manager conducted regular audits. The defendant acknowledged that, by entering its plea of guilty, on the day in question a serious risk of injury to the two workers arose once the truck left the yard without the repair being completed in relation to the clevis pin. A number of risks had, nevertheless, been addressed. Safety chains had been installed on both sides of the loading ramp and tensioned to hold the ramp in an upright position. Controls for raising and lowering the ramp were placed at the rear left-hand side of the truck thus keeping the operator out of the way of the ramp during the lowering and raising operation. The SWMS for the truck recognised that there was a risk of being injured while raising and lowering the ramp and specified a control whereby personnel were to stand clear of the area. The pre-start checklist for plant operators required those checks to be carried out before work commenced and referred to checks on the hydraulics, the hitches, including safety pins and pneumatic tailgate. In addition there was regular maintenance of the truck by a full-time plant mechanic employed at the yard. 38It was pointed out by the defendant that there was no previous incident involving the clevis pin yet there was a system and a procedure for assistance to be provided to employees when plant was found to be defective when an employee was working off site. There was a tag out system for vehicles and plant reported to be faulty and a system of removing keys and placing them in a locked box. There was also overall supervision by the safety officer and the general manager. The defendant readily conceded that, although these measures were available, there were aspects of the systems provided that did not adequately identify the risk associated with a hydraulic ram and a faulty clevis pin. 39The defendant pointed to the unusual circumstances that had arisen, particularly on the day of the accident, involving departures from the approved safety system. Firstly, the defective clevis pin was not reported as requiring repair when it was discovered at 1.30 pm on the previous Friday, even though the defendant's policy required such a defect to be reported. Mr Paton was aware of that policy and had previously followed the policy. The defective clevis pin was reported to the yard supervisor at approximately 4.00 pm on 3 October 2008 but after the plant mechanic had left for the day and was therefore unavailable to effect repairs such as the provision of an A clip to maintain the clevis pin in place. When Mr Paton made the report, management were not informed that the work team that afternoon had raised and lowered the ramp by inserting the pin into the hydraulic arm to load the slasher tractor. A long weekend intervened but no tag was placed on the truck in accordance with usual practice and no record of the reported defect was made on the whiteboard as required by the defendant's usual system. Further, the keys were not placed in a secure location in accordance with the defendant's policy. 40On the morning of 7 October 2008 there were no supervisors present at the yard. The safety officer was working on a job in Sydney and the general manager was not present at the time when Mr Paton and Mr Barrett arrived at the yard. Mr White was moving residence and was absent from the workplace on the previous Friday and the following Tuesday morning and had not been informed of the defective clevis pin. The discussion between the yard manager and Mr Paton confirmed that the clevis pin was not repaired and while Mr Paton was told to wait for the plant mechanic to arrive, the plant mechanic was late in attending for work that day. Mr Paton had access to the keys to the vehicle and apparently, concerned that there was a large amount of work to be performed and that they were already running late for that day's work, the two workers decided to travel to the work site without waiting for the clevis pin to be repaired by the plant mechanic. The two workers apparently thought they could offload the slasher tractor and return the truck to the yard for repair. During discussions the yard manager failed to give a clear direction that the employees were not to take the truck out of the yard until the clevis pin had been repaired. 41It was submitted that the fact that Mr Paton and Mr Barrett had succeeded in inserting the clevis pin to operate the loading ramp to load the slasher tractor on the previous Friday may have given them a false sense of confidence that the same operation could be carried out without incident on the Tuesday morning. The removal of the safety chains holding the ramp prior to inserting the clevis pin into the hydraulic ram, however, allowed the ramp to fall in the manner it did on the Tuesday morning while Mr Paton was standing at the rear of the truck. There is force in the submission for the defendant that each of the above events contributed to the accident and led to the injuries sustained by Mr Paton and that many of these events were out of the ordinary and not the way in which the defendant usually operated. 42While it is undoubtedly so that the defendant's breach, as particularised, represents a serious breach of the Occupational Health and Safety Act the various concessions made by the prosecutor and the circumstances highlighted by the defendant allow this breach to be assessed as falling well below the most serious class of offence. 43In this case consideration is to be given to both general and specific deterrence. In particular, the prosecutor drew attention to the circumstances of this case to demonstrate to employers how unusual circumstances can result in horrific injuries being inflicted on workers because safe systems have not been fully developed and/or have not been appropriately enforced. The Court accepts that submission. In relation to specific deterrence the defendant continues in operation, indeed, its operations have expanded since this accident. Its good safety record both before and after this incident, the steps it has taken to address the circumstances exposed by this particular accident and the general attention to safety details, in combination, operates to reduce the level of specific deterrence to be reflected in the penalty imposed. 44There are a number of subjective matters to be considered, including a number of aspects that have already been referred to in the considerations up to this point. Firstly, the defendant is a first offender and is entitled to the leniency that goes hand-in-hand with that status. Although the defendant has been in business for a relatively short period at the time this accident occurred, it nevertheless worked in notoriously dangerous workplaces and with an increasing workforce: its previous safety record is, therefore, to be regarded as a good record. In addition the defendant entered an early guilty plea to the Amended Application for Order and having considered the circumstances surrounding the plea, the Court is satisfied that this is a case where a 25 per cent discount is warranted. The Court is satisfied that the defendant has exhibited contrition and has taken full responsibility for the risks that arose in its workplace and the horrific injuries that were inflicted upon Mr Paton and the risk to which Mr Barrett was also exposed. The defendant acted promptly to address the safety issues exposed by the accident, introduced new methods and went to some lengths to have a training course developed in circumstances where there were no industry precedents to either directly apply or build upon. The defendant also took steps to assist Mr Paton and his family and to give them both financial and emotional support by involving them in the continuing social events conducted by the defendant. In addition, the defendant co-operated with the WorkCover investigation and that is to be regarded as an important consideration in mitigation of penalty. 45At the conclusion of the hearing the Court announced that it was satisfied that a conviction should be entered. The Court also announced that it proposed to take into consideration the Victim's Impact Statement prepared by Mr Paton. Although there are a number of unresolved aspects as to the use to which the Court may use a Victims Impact Statement, the Crimes (Sentencing Procedure) Act 1999, s 28(1) provides that, where the Court considers it appropriate to do so, it may "receive and consider" such a statement at any time after it convicts but before it sentences an offender. The common law has long required a sentencing Court to have regard to the effect of the crime on the victim. In Siganto v The Queen (1998) 194 CLR 656, Gleeson CJ, Gummow, Hayne and Callinan JJ at [29], spoke of the rule at common law encapsulating the undoubted proposition that a sentencing judge was entitled to have regard to the harm done to the victim by the commission of a crime. It is also to be noted that s 3A(g) of the Crimes (Sentencing Procedure) Act provides that one of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community." In the present case that statement records that Mr Paton is now 46 years old and how his life changed so dramatically following the events of 7 October 2008. The statement sets out the pain, suffering and humiliation he endured during his hospitalisation and after care because of the horrific injuries he had suffered. It is appropriate for the Court to acknowledge the impact of the offence on the victim - it allows the Court to be more fully informed of the injuries received and how those injuries have changed the victim's life. The statement also serves the purpose of bringing home to employers responsible for an offence, the ongoing consequences of workplace accidents. ORDERS 46Having regard to the above matters the Court makes the following orders: (a) the defendant, Multi Civil and Rail Services Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act as particularised in the Amended Application for Order in Matter IRC 1093 of 2010, to which the defendant entered a plea of guilty; (b) the defendant is fined the sum of $125,000 with half that sum to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 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 this matter. 2. At all material times Multi Civil & Rail Services Pty Ltd (ACN 101 490 000), was and is a corporation whose registered office is situated at HLB Newhouse, Level 1, 65 Kembla Street, Wollongong in the State of New South Wales ("Multi Civil, Defendant"). 3. At all material times Multi Civil conducted its business at premises located at 12-16 Resolution Drive, Unanderra in the State of New South Wales. 4. At all material times Multi Civil was a corporation, which undertook the business of providing rail services. Multi Civil was registered with ASIC on 25 July 2002. 5. At all material times Multi Civil was an employer and employed Tory Lavalle as the General Manager, Marcello D'Aloia as Yard Manager, Rex Barrett as a rail protection office and, Mark Paton as a Slasher/truck-driver operator. Background 6. At all material times John Hinsley White was a director of Multi Civil. Mr White was appointed as a director on 13 February 2008. Mr Lavalle had been a director of the company until 20 February 2008. Mr Lavalle was reappointed as a director on 31 March 2010. Mr Lavalle had engaged the services of Mr White as a contracts manager in July 2005. Mr White was responsible for the corporation's occupational health and safety policies and procedures. 7. On Friday 3 October 2008, Mark Paton and Rex Barrett were working in the rail corridor at the Minnamurra/Dunmore area. Mr Paton was cutting grass using a slasher tractor. Mr Barrett had the role of setting up the necessary rail protection for the work carried out by Mr Paton and looked out for trains. They had both driven to the site, which is described as off Pit Road, Minnamurra/Dunmore, in a float truck Mitsubishi FM 515 registration number YVG 764 with the slasher tractor on the tray. The float truck had a loading ramp operated by an hydraulic ram. 8. At lunch time Rex Barrett took the float truck to some local shops to get something to eat. 9. Rex Barrett was returning to the site in a westerly direction along Federal Avenue, Minnamurra at about 1:30pm when he was stopped by the driver of a vehicle who reported that something had dislodged from the truck and that there was something dragging at the rear of the truck. 10. Rex Barrett inspected the rear of the truck and discovered that the hydraulic ram was on the ground. According to Mr Barrett the unidentified motorist then searched and found the missing clevis pin along Federal Avenue but not the A clip that had held it in place. The approximate dimensions of the clevis pin are 95mm long x 25mm in diameter. It is depicted in photograph "18" of the attached photographs. 11. Rex Barrett returned to the site where Mark Paton had been cutting the grass. Rex Barrett states he cannot remember whether he left the ram as it was or tied it up. Mark Paton completed mowing the section for the day. Some time later Rex Barrett and Mark Paton aligned the hydraulic ram to a fixed hole at the rear of the tailgate and Rex Barrett inserted the clevis pin. Rex Barrett then undid the chains of the ramps and pressed the lower button, and the ramp came down normally. This occurred without incident and the tractor was loaded onto the vehicle, the ramp was then raised and the chains tensioned. 12. The hydraulic ram was then tied to the truck and the clevis pin removed so that it would not fall out again. The clip that secures the pin in place had been lost 13. Mark Paton then drove Rex Barrett to Unanderra Railway Station to catch the train home. Rex Barrett told Mark Paton to make sure he told someone in the Multi Civil yard about the faulty pin. The weekend was a long weekend with a holiday on Monday. 14. At approximately 4 pm Mark Patton arrived back at the yard and told Marcello D'Aloia, the Yard Manager about the faulty pin. By this time the plant mechanic had left the Multi Civil yard. Mr D'Aloia told Tory Lavalle (General Manager) of the faulty pin. 15. A tag out system was regularly used at Multi Civil, however the float truck that was brought back to the yard by Mark Paton on the afternoon of 3 October 2008 did not have a tag placed on it identifying the dislodged clevis pin. Incident 16. Mark Paton having left the truck in the yard over what was the long weekend on 4, 5 and 6 October 2008 attended the yard at approximately 5:45am to 6:00am on 7 October. His work for the day was to continue mowing in the same rail corridor in which he had worked on the previous Friday. 17. No work occurred over the weekend period or on the Monday (public holiday) in relation to the vehicle. 18. There are variations in the parties' recollection as to events on the morning of 7 October 2008. 19. Mark Paton states that there was no-one at the Multi Civil and Rail yard when he arrived that morning. He also stated that he had picked up Rex Barrett from Unanderra train station that morning. 20. Rex Barrett stated that he walked to the yard as Mark Paton had not picked him up. 21. Mr Barrett indicates that Mr White was at the yard that morning. Mr White confirms he went to the yard early that morning to get a truck to help him move residence but did not see or speak to Mark Paton or Rex Barrett. Mr White was not at the yard on Friday 3 October 2008 and was not informed of the report made by Mark Paton about the clevis pin. 22. When Mark Paton arrived at the yard it soon became apparent to him that the truck had not been repaired. 23. Contrary to the company policy Mark Paton had access to the truck keys on the morning of Tuesday 7th October. 24. The cutting work which Rex Barrett and Mark Paton undertook, normally commenced at 7.00am. They were keen to start work on the morning of 7 October but neither Mr D'Aloia, (who was in Sydney), nor the mechanic, Mr Maione, were present at the yard. 25. Mr D'Aloia spoke, from Sydney, to Mark Paton on the phone sometime between 6 and 6.15am on 7 October. Mr D'Aloia told Mark Paton that the mechanic would come in and repair the truck. Mark Paton indicated that he would "get by". Mr D'Aloia failed to say anything to stop Mark Paton leaving the yard with the truck. 26. At about 7.15-7.20am Mark Paton and Rex Barrett left the yard. They took the truck as the next section they were to cut could take two to three days as it was a huge area. Rex Barrett and Mark Paton thought they could unload the tractor and then take the truck back to the workshop for repair. By the time they left the yard they were already one hour behind schedule. 27. Mark Paton drove the vehicle to the Caltex Service Station on the Princess Highway, Albion Park to get fuel. Whilst paying for fuel, Rex Barrett observed another vehicle waiting so he got into driver's seat and moved the float truck forward. Mark Paton re-entered the float truck as a passenger. 28. When they arrived at the work site Mark Paton got out of the truck and opened the gates to the railway corridor. Rex Barrett reminded Mark Paton not to forget the clevis pin that was in the front console of the vehicle. Rex Barrett then drove the vehicle into the corridor and parked it into position. Rex Barrett stated that Mark Paton had the clevis pin in his hand prior to opening the gates. 29. The entry gates that Mark Paton and Rex Barrett went through to access the railway corridor were located on the north eastern side of Federal Avenue, Minnamurra. The gates were located west of a railway bridge. 30. The vehicle was parked adjacent to the eleventh hole of the Kiama Golf Course. 31. Mr Barrett removed the two passenger dog chains (used to tension chains) that secured the tractor. As he was walking towards the back of the vehicle he observed Mark Paton undoing the passenger side safety chains that held the tailgate to the float truck. 32. Rex Barrett undid the short chain on the driver's side of the vehicle. He then walked behind the ramps, passed Mark and collected the dogs and chains of the tractor and put them in a toolbox that was located behind the passenger side of the cabin. It was at this point that he heard a loud noise. 33. Rex Barrett observed Mark Paton underneath the loading ramp. Rex Barrett attempted to raise the ramp but was unable to do so. He called out for help and was assisted by Scott McLaurin, (Kiama Golf Course Superintendant), Evan Scott (Kiama Golf Course Assistant Superintendant), Lee Scott (Labour Hand - Waterwell Irrigation). The above persons raised the ramps and pulled Mark Paton from underneath the vehicle. 34. Mr Paton was seriously injured in the accident as a result of which he is a paraplegic. Details of the systems of work prior to the incident 35. Prior to the incident there were two primary documents in relation to the Defendant's management of safety issues. 36. The first was the Multi Civil Integrated Management System Procedures. The second was the Multi Civil Employee Company Policy Manual. 37. The Integrated Management System dealt with the treatment of plant and equipment. It stated: Prior to the initial use of any plant that has been purchased, hired or borrowed Multi Civil and Rail Services Pty Limited ensures: (1) A plant risk assessment is available or is carried out (by competent personnel) and is acceptable (2) All requirements of the plant risk assessment are implemented (3) Use of plant and equipment is included in the safe work method statement relevant to its intended use... (4) A documented daily pre-start plant inspection list for the plant specific items requiring inspection is available or prepared and kept with the plant and/or appropriate safe place where they can be accessed daily Using the above information Multi Civil and Rail Services Pty Limited also prepares a schedule of maintenance including hourly, daily and periodical as recommended. 38. In the same section of the Integrated Management System there was recorded: When using plant and equipment Multi Civil and Rail Services Pty Limited ensures the following: (1) Prior to commencing work and other times if required, inspect all plant in accordance with the items on the daily plant inspection list . 39. At page 8 of 33 in the Employee Company Policy Manual at paragraph numbered 11 it was noted: Drivers of company vehicles and plant will complete a pre-job safety checklist and be in possession of a safe work method statement according to the specific instruction or checklist for the vehicle or plant, at the beginning of each day or shift. 40. At the time of the incident there was in existence a generic pre-start document, a "Pre-work brief/hazard identification form, Safe Work Method Statement no. 6"- "Rail Corridor" and a safe work method statement for the float truck. The pre-start checks and safe work method statements, as did exist prior to the incident, made no mention of the hydraulic ram or the ramp. 41. Mark Paton and Rex Barrett indicated that they undertook a basic check of the float truck each morning which focused on lights and flashing lights and brakes. However, Rex Barrett and Mark Paton were unclear as to who filled the document out, each suggesting it was the other. Mark Paton indicated that he understood Rex Barrett gave the documents to Multi Civil. 42. Following the incident, Inspector Nikolovski requested from the Defendant and from Rail Corporation, copies of pre-job plant inspection checklists and Safe work Method Statements completed by Rex Barrett or Mark Paton. Neither were able to produce any evidence of any documentation provided to them in the nature of pre-start checks or in the nature of a "pre-work brief/hazard identification form/safe work method statement". 43. Prior to the incident Multi Civil did not undertake any audit process or follow up to confirm that pre-start checks were being undertaken by Rex Barrett or Mark Paton. Management of faulty plant and equipment 44. The Integrated Management System dealt with defective or faulty plant or equipment as follows: Multi Civil and Rail Services Pty Limited prevent defective or faulty plant or equipment from being used, removes it from site, and removes keys and/or labels (Out of Order) as necessary. Multi Civil and Rail Services Pty Limited ensures appropriately qualified people only affect repairs or maintenance. Multi Civil and Rail Services Pty Limited ensures records of the work done are documented and retained . 45. Within the Employee Company Policy Manual there are a number of references in relation to defective or faulty plant or equipment under the heading "housekeeping" there is reference to the "ten good housekeeping rules". Rule no. 5 is "if you can't fix it, call someone who can". 46. Within the same section it is noted: Completing assigned housekeeping duty. This includes notifying appropriate personnel of maintenance requirements by use of "tagging". 47. Under a later heading at paragraph numbered 10 the responsibility for safe plant: no employee or contractor will move, drive or operate any vehicle or plant that he reasonably considers to be in an unsafe condition. Notify your supervisor or manager. 48. Mark Paton was aware that if plant failed on site he was to report that failure so that the plant could be repaired. 49. Following Mark Paton reporting the fault with the clevis pin to Marcello D'Aloia on 3 October 2008 no "Out of Order" label was attached to the float truck in accordance with the Employee Company Policy Manual. In addition the keys were not removed from the float truck or the driver, Mark Paton. There was no attempt to place the keys in a secure location so that drivers could not access the keys prior to the float truck being repaired. Details of Systems of Work after Incident 50. After the incident Multi Civil took a number of steps, including the review and development of a number of documents which addressed safety hazards relating to the use of the float truck and possible dislodgement of the clevis pin. 51. The Defendant developed a new safe work method statement numbered 0007 which was specific to floating plant and equipment. 52. Specifically, in relation to the section headed "loading ramps" the control measure of "inspect loading ramps prior to loading plant items. Ensure hydraulic lifting/lowering ram is connected, inspect pin on ram and ensure it is correctly installed. ANY defect MUST be reported to the depot manager or other manager". 53. In addition, a "pre-operational safety checklist" specific to the Mitsubishi FM515 float truck registration No. YVG 764 was put in place. 54. This pre-operational safety checklist included "ramp hydraulic ram and safety pin inspected Y/N". Additionally, there was a specific note relating to "Out of Service" tags in the new document. 55. In addition to these new documents being put in place the company improved its communication with employees in relation to the new documents and took steps to have a WorkCover accredited trainer, train employees in relation to loading and unloading plant from the float vehicle. 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: 26 August 2011