Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Jones v Roads and Traffic Authority of New South Wales [2011] NSWIRComm 124 Hearing dates: 25 August 2011 Decision date: 13 September 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1. The defendant is found guilty of the offence with which it is charged and convicted accordingly. 2. A monetary penalty of $175,000 is imposed with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor assessed in default of agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 10(1) of the Occupational Health and Safety Act 2000 by the defendant - early guilty plea - foreseeable risk - objective seriousness - prior comprehensive procedures in place - serious breach - general and specific deterrence - commitment to occupational health and safety obligations - contrition and remorse - cooperation with WorkCover Authority - good corporate citizen - prior convictions - orders made Legislation Cited: Occupational Health and Safety Act 2000 - s 10(1) Category: Principal judgment Parties: Inspector Stephen Jones of the WorkCover Authority of New South Wales (Prosecutor) Roads and Traffic Authority of New South Wales (Defendant) Representation: Mr P Ginters of counsel (Prosecutor) Ms W Thompson of counsel (Defendant) Legal Group, WorkCover Authority of New South Wales (Prosecutor) Sparke Helmore Solicitors (Defendant) File Number(s): IRC 1118 of 2010 Judgment 1These proceedings are constituted by an amended application for order. The prosecutor, Inspector Stephen Jones of the WorkCover Authority of New South Wales, has charged the defendant, Roads and Traffic Authority of New South Wales, with a breach of s 10(1) of the Occupational Health and Safety Act 2000 ("the Act"). Section 10(1) is in the following terms: 10 Duties of controllers of work premises, plant or substances (1) A person who has control of premises used by people as a place of work must, so far as is reasonably practicable, ensure that the premises are safe and without risks to health. 2The charge is that on 14 October 2008 at the John Foord Bridge, Corowa, the defendant had control in the course of trade, business and its undertaking of those premises and that it failed to ensure that they were safe and without risks to health to people who were not employed by it, and in particular David Hocking and Warren Robinson. 3The particulars of the charge are as follows: (a)The 'work' referred to in the particulars refers to the performance of maintenance work on the John Foord Bridge. (b)At all material times the defendant had control or alternatively, only limited control of the premises. (c)At all material times persons not employed by the defendant, in particular Messrs Hocking and Robinson, used the premises as a place of work. (d)At all material times the premises were not used only by employees of the defendant. (e)At all material times the premises were not occupied only as a private dwelling. (f)At all material times the premise were controlled by the defendant in the course of its trade, business or other undertaking. (g)At all material times the defendant exerted its control of the premises by reason of it undertaking maintenance work on the John Foord Bridge. The particulars of the risk are: (h)The 'risk' is the risk of a John Foord Bridge monorail failing whilst Messrs Hocking and Robinson were in a scaffold work platform ("work platform") suspended onto the John Foord Bridge's monorails resulting in Messrs Hocking and Robinson falling from height to the ground . The particulars of the acts and omissions in failing to eliminate the risk are: (i)The defendant did not ensure that premises were safe and without risks to health in that it failed to (i) ensure that a record was made and maintained of the cutting and non replacement of any bolts that secured the monorail to the John Foord Bridge and (ii) notify or inform persons who were not the defendant's employees, in particular Messrs Hocking and Robinson, of any bolts that had been cut and not replaced that secured the monorail to the John Foord Bridge and/or provided them with access to such a record (as referred to in (i)) prior to such persons undertaking work from a work platform attached to the bridge's monorails. (j)The defendant did not ensure that modifications to the John Foord Bridge, as identified in an Engineer's Certification from SJE Consulting Pty Ltd dated 25 July 2008, were undertaken before the work platform was suspended onto the John Foord Bridge, so as to ensure that the premises were safe and without risks to health. (k)The defendant did not ensure that an adequate risk assessment was undertaken in relation to the suspension of the work platform onto the John Foord Bridge, so as to ensure that the premises were safe and without risks to health. In particular the RTA did not adequately inspect the bolts that secured the monorails to the John Foord Bridge and as a result failed to detect that bolts had been cut, prior to the suspension of the work platform onto the John Foord Bridge. As a result of the acts and omissions of the defendant, Messrs Hocking and Robinson were exposed to risk whilst performing maintenance work at the premises. The injuries sustained by Messrs Hocking and Robinson were a manifestation of that risk. 4The defendant pleaded guilty to the charge and this judgment is concerned only with the question of penalty. 5For the prosecutor, an agreed statement of facts was tendered together with documentary material which is referred to in that statement of facts. The agreed statement of facts is in the following terms: 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 the within matter. 2. At all material times the Roads and Traffic Authority of New South Wales was a corporation constituted by section 46 of the Transport Administration Act 1988 ("RTA"). 3. At all material times, the RTA was the NSW State Government agency responsible for maintaining the John Foord Bridge located in Corowa, New South Wales. 4. At the time of the incident, the registered office address of the RTA was Centennial Plaza, 260 Elizabeth Street, Surry Hills, New South Wales 2010. 5. As at October 2008 the RTA could not employ any staff. To enable the RTA to exercise its functions staff were employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service. 6. On 14 October 2008 David Hocking, 52 years old, and Warren Robinson, 48 years old, both employed in the Roads and Traffic Authority Division of the Government Service of New South Wales, were working on a work platform suspended from the John Foord Bridge, Corowa, in the State of New South Wales ("the Bridge") when it fell approximately four metres to the ground. Mr Hocking and Mr Robinson sustained back, chest and pelvic injuries as a result of the fall. 7. At all material times, the RTA was working on a decking upgrade (valued at approximately $480,000) to the Bridge at Corowa in the State of New South Wales ("the premises"). 8. At all material times the following workers were employed within the Roads and Traffic Division of the Government Service of New South Wales: (i) Sam Millie as Works Manager Bridges. Mr Millie was responsible for managing and maintaining bridges in the South West region. Mr Millie's duties included managing bridge maintenance crews, programming work and doing estimates and management plans for bridge works. (ii) Norman Young as Works Supervisor. Mr Young was responsible for the supervision and day-to-day management of the project at the premises. (iii) Craig Wilson as Bridge Works Supervisor. Mr Wilson was responsible for managing up to three bridge maintenance crews in Western NSW, including a RTA crew (known as the 'Hay Bridges Crew') that undertook maintenance work on the Bridge in about late 2007 in which bolts that were placed through timber kerbs on the Bridge were cut using an oxy acetylene kit or angle grinder. (iv) David Hocking (injured person) as Team Leader. Mr Hocking was erecting and working on a suspended work platform swing scaffold ("work platform") with Mr Robinson at the time of the incident. (v) Warren Robinson (injured person) as Bridge and Wharf Carpenter. Mr Robinson was erecting and working on the work platform with Mr Hocking at the time of the incident. (vi) Jacob Elliot as Bridge Carpenter. At the time of the incident, Mr Elliot was approximately 50 metres away from the scene of the incident building other scaffolds. (vii) Nick Toupas as Labourer/Truck Driver. On the day of the incident, Mr Toupas was operating hydraulic winches to raise the work platform. 9. Mr Hocking held an advanced scaffolding ticket, a dogman's ticket and a crane ticket. Mr Robinson held a scaffolder's ticket and both had experience working on erecting work platforms and scaffolds, which they had gained from working with the RTA. 10. SJE Consulting (SJE) is a consulting group. Its business involves, amongst other things, conducting studies and planning and designing civil, structural, hydraulic, mechanical and traffic projects. SJE were engaged by the RTA to certify the monorails on the Bridge. 11. Robert Jones is a civil/structural engineer, trading under the company name of Rob Jones Consulting Pty Ltd, and is a contracting engineering consultant with SJE. Robert Jones was the consultant used by SJE to certify the monorails on the Bridge in both 2007 and 2008. The John Foord Bridge, Corowa 12. The Bridge was built in 1892 and is Heritage listed. The Bridge is an iron lattice truss bridge one lane wide across the Murray River at Corowa. 13. The Bridge's three main truss spans are of riveted steel lattice construction with approximate spans of 42.82m (centre) and 34.6m (ends). The trusses support riveted iron cross girders and longitudinal timber stringers. The northern approach spans range from 9.14m to 10.66m and are of traditional timber girder construction. 14. The Bridge's timber deck requires constant rehabilitation and regular maintenance due to damage from vibration. 15. The approximate $480,000 decking upgrade to the Bridge involved replacing the wooden timber road decking with new timber and resurfacing the roadway. Preparation for Bridge Maintenance by RTA in late 2007 16. On 14 September 2007, the RTA engaged SJE, who in turn sent Mr Jones, to inspect the Bridge and check the monorails on the underside of the Bridge. The RTA sought certification that the monorails on the Bridge could support the weight of a lightweight scaffold. 17. On 24 October 2007, Mr Jones, contracting consulting engineer with SJE, conducted an inspection of the Bridge's monorails and undertook calculation checks on the Bridge's two 127x64 RSJ monorails. 18. Following the inspection, Mr Jones certified the monorails as being adequate to safely support a lightweight swing scaffold with a safe working load of 500 kilograms. Mr Jones stated that the supplier of the lightweight scaffold recommended maximum scaffold loads of 450 kilograms in total and 150 kilograms on cantilevered parts and noted this information in his 2007 report. The SJE report dated 26 October 2007 is annexed and marked "A". Bridge maintenance by the RTA in late 2007 (12 months prior to the incident) 19. Mr Wilson, Works Supervisor for Bridges, was the works supervisor for the RTA work crew who performed maintenance works on the Bridge in late 2007. During this work, the top of one of the bolts, which was holding the monorails in place through the bridge decking on the western side of the Bridge, was cut. 20. Mr Wilson stated that a crew member had cut all the bolts on the Bridge's deck whilst they were replacing the wooden kerbs on the Bridge deck. 21. The practice for the task of replacing wooden kerbs on the Bridge was to cut the bolts that secured the kerbing to the Bridge deck with either an oxy acetylene kit or an angle grinder. 22. Mr Wilson believed that it was safe to cut the bolts on the Bridge deck as it was assumed that they secured the kerbs on the Bridge deck only, and nothing else. 23. A bolt which was cut by the RTA work crew in late 2007 secured one of the Bridge's monorails through the Bridge's decking. 24. The RTA did not keep a record of the cutting and non replacement of bolts cut from the Bridge deck in late 2007. Bridge maintenance by the RTA in October 2008 (prior to the incident) 25. The RTA had scheduled timber road deck replacement works to commence in 2008. 26. The RTA planned to suspend a 9.8 metre, 1500kg Boral work platform ("work platform") on the Bridge's monorails to complete the deck replacement. 27. On or about 7 July 2008, the RTA engaged SJE to re-inspect the monorails to certify that the monorails were safe to hang the "larger 1500kg Boral scaffold work platform Dead Load + 200kg Live Load (2 workers + equipment)". A copy of the emails between the RTA and SJE in relation to the proposed inspection is annexed and marked "B". 28. Following the RTA's request, Mr Jones certified the monorails again in or about July 2008. Mr Jones stated that this inspection was not an inspection as such as he was only certifying the monorails, not the bridge itself. 29. Mr Jones certified the monorails as being adequate to safely support two 1000 kilogram safe working load (all up weight 1500 kilograms maximum) swing scaffolds, providing that: (i) modifications were made to the monorails; and (ii) the scaffolds were separated by a distance of at least 1 metre. 30. The SJE report dated 25 July 2008 outlined the modifications required to be made to the monorails as follows: (1) Install additional supports to the ends of the monorails using the same brackets and clamps used elsewhere on the span. (2) Install new 100 UC outriggers under the ends of the main girders. (3) After completing 1 and 2 above, the existing single 16 dia hangers off the timber deck supporting the ends of the monorails can be removed. (4) Check alignment and levels across all monorail splices for smooth travel. (5) The SJE report dated 25 July 2008 is annexed and marked "C". The incident involving Mr Hocking and Mr Robinson 31. On 14 October 2008 the RTA had control, or alternatively only limited control of the premises by reasons of it undertaking maintenance work at the premises. 32. Mr Hocking, Mr Robinson, Mr Elliot and Mr Toupas (work crew) were assigned to physically carry out the modifications to the Bridge as recommended in the SJE July 2008 report. 33. Mr Young was the supervisor for the works at the Bridge on 14 October 2008. 34. Prior to the incident, Mr Young instructed the work crew to put up the work platform and carry out the modifications. Mr Young subsequently left the work crew to supervise another job at the premises. 35. In order to access the underside of the Bridge, the work crew decided to do the following: (1) A 1500 kilogram work platform would be winched under the Bridge and then suspended from the Bridge's monorails using chain slings affixed directly to the monorails with four JBS 1 tonne suspension trolleys. (2) Once the work platform had been winched into place and the trolley wheels placed onto the monorails the winch cables would be removed. (3) The actual task of carrying out the modifications, identified in the SJE Consulting report dated 25 July 2008, was to be done after the 1500 kilogram work platform had been erected and placed on the monorails. (4) Once the modifications were completed, a second work platform would be erected and placed on the monorails so that the RTA could complete the timber deck upgrade. 36. Mr Hocking and Mr Robinson were assigned the task of erecting the work platform and placing it onto the monorails on the underside of the Bridge. 37. Mr Elliot directed Mr Toupas to operate hydraulic winches to raise the work platform. 38. Mr Hocking and Mr Robinson rode the work platform up to the underside of the Bridge as Mr Toupas operated the hydraulic winches. 39. Mr Young was not present at the time of connecting the work platform onto the monorails as he was approximately 50 metres away supervising another job. 40. Once the work platform was winched into position and suspended from the monorails, Mr Hocking began checking the trolley wheels and started undoing the cables on the lifting chains. 41. Shortly thereafter, the two monorail tracks came loose from the underside of the Bridge at the northern end, directly where the work platform was and where the monorails were bearing all of the weight. The work platform then fell to the ground with Mr Hocking and Mr Robinson still in it. The work platform fell approximately 4 metres and landed on top of a cyclone fence barricade, damaging the fencing and the work platform. The monorails were bent and twisted out of shape from the weight of the work platform and Mr Hocking and Mr Robinson. 42. The upper brackets securing the monorail at the northern end of the Bridge had torn loose from the Bridge decking to which they were meant to be affixed. The most likely cause of the monorail failure was the removal of the top of one of the 16mm diameter bolts of the upper bracket that secured one of the monorails that had previously been cut off by RTA workers when performing the kerbing maintenance work in late 2007. 43. Mr Hocking and Mr Robinson were taken to Corowa Hospital. Mr Hocking was later transferred to Albury Base Hospital for further treatment. 43A. Mr Hocking described the injuries he sustained to Inspector Jones as "massive haematoma in the right groin, bruising and [a] slight fracture of the left shoulder [which was discovered approximately one week after the incident]." Mr Robinson described the injuries he sustained to Inspector Jones as "bruising and bleeding to the spine...soft tissue damage....[and a] haematoma. 44. Mr Hocking returned to work with the RTA on 17 November 2008, performing full time suitable duties whilst receiving ongoing counselling for psychological issues. Mr Hocking returned to normal pre-injury duties on 8 June 2010. 45. Mr Robinson returned to work with the RTA on 14 January 2009 on suitable duties and returned to permanently modified duties on 27 July 2010. 46. Both Mr Hocking and Mr Robinson were given the opportunity to work in another area of the RTA upon their return to work. Mr Robinson now performs line marking work for the RTA. Mr Hocking wished to stay part of the Wagga Wagga Bridges Crew. Systems of work prior to the incident 47. Prior to the incident the RTA had a Safe Work Method Statement (SWMS) for "Stringers, Deck and Sheeting Replacement". There were two versions of this SWMS - one signed and dated 12 September 2008 and an unsigned and undated but marked up version. 48. Copies of the SWMSs are annexed and marked "D" and "E". 49. The version of the SWMS that was in place and operative on the day of the incident was that dated 12 September 2008 and marked as annexure "D". 50. The RTA SWMS did not provide adequate guidance on how to erect work platforms safely. 51. The EnSite Implementation Plan dated 8 October 2008 required that toolbox meetings occurred weekly or when a change of work process occurred. Mr Hocking, the team leader, stated that on the day of the incident, he did not get to do a toolbox talk for the tasks to be performed on the day. 52. Mr Young did not inspect the bolts himself and stated that this task had been delegated to Mr Hocking. In accordance with the EnSite Implementation Plan dated 8 October 2008 Mr Young as Works Supervisor, was only required to conduct a site inspection once a month. Mr Hocking stated that on 13 October 2008 he had "checked what I could see". 53. The RTA system of work required external certification of the monorails prior to the work platform being raised. This certification was obtained from SJE. The inspections of the Bridge carried out by Mr Hocking and Mr Jones on behalf of the RTA did not establish where or how the monorails were connected to the bridge. The RTA did not adequately inspect or arrange for an adequate inspection of the Bridge to establish where the bolts were connected, prior to them being cut in about late 2007. 54. Mr Millie stated that following the incident he is of the view that the incident could have been prevented with 'vigilant visual inspection of the scaffold connection points, which means if you can't see it, you can't inspect it'. Mr Millie confirmed that this requirement was included in the RTA's revised SWMS dated 22 October 2008. SJE July 2008 report 55. The SJE July 2008 report certified that the monorails would be safe to hold two 1000 kilogram safe working load (all up weight 1500 kilogram max) swing scaffolds after the modifications, outlined at paragraph 29, were made. Prior to the incident, Mr Hocking read the SJE 2008 report. 56. Following the incident, Mr Hocking stated that he understood the report to mean that it was safe to suspend one 1500 kilogram Boral work platform from the monorails before the modifications were completed. 57. Mr Hocking stated that no one had discussed with him other ways of accessing the Bridge's monorails. 58. Following the incident, Mr Jones stated that he would never have recommended that the RTA suspend a 1500 kilogram work platform from the monorails to carry out the modifications. Mr Jones confirmed that he did not consider the monorails were safe to carry the 1500 kilogram Boral work platform before the modifications were completed. Instead, Mr Jones envisaged that the RTA would use either a lightweight scaffold or an Elevated Work Platform to carry out the modifications to the monorails. The 2008 report of Mr Jones did not state how the modifications should be undertaken. 59. No consideration was given to accessing the Bridge's monorails via an Elevated Work Platform or scissor-lift prior to the incident. Risk assessment 60. The RTA had a documented Environment Safety and Improvement Teams (EnSite) training course in respect of the Bridge prior to the incident, which was attended by Mr Young and the work crew, including Mr Hocking on 8 October 2008. EnSite training also occurred on 4 July 2008. The RTA EnSite training is a consultation and risk assessment process. 61. A copy of the RTA "EnSite assessment and record" dated 4 July 2008 and "EnSite implementation plan" dated 4 July 2008 is annexed and marked "F" and "G" respectively. 62. A copy of the RTA "EnSite assessment and record" dated 8 October 2008 and "EnSite implementation plan" dated 8 October 2008 is annexed "H" and "I" respectively. 63. The risk(s) associated with erecting and suspending work platforms, particularly the 1500 kilogram Boral work platform, from the monorails was not identified in the RTA EnSite documentation. Notification of cut bolts 64. The RTA did not inform the Hay work crew that conducted the maintenance work in 2007 that the monorails bolts were connected to the Bridge deck. 65. The Wagga Crew who were performing the Bridge Maintenance work in 2008, as well as SJE, were not notified or informed that bolts had been cut and not replaced on the Bridge's deck had secured the monorails to the Bridge. As a consequence, the work crew and SJE were not aware that some of the bolts connecting the monorail on the Bridge had been cut. 66. The RTA did not seek information or advice from SJE on how to carry out the modifications to the monorails, so as to ensure that the premises were safe and without risks to health. Nor did, Mr Jones outline in his July 2008 report what system of work the RTA should have used to carry out the modifications he recommended. Instruction and Training 67. RTA supervisors undertake OHS training called "Working Together". This training is a four hour course covering their OHS responsibilities including risk assessment, and provides guidance on how to write up SWMSs. 68. Mr Hocking was trained as a team leader with an advanced scaffolding ticket, and had worked for the RTA for a period of 27 years at the date of the incident. Following the incident, Mr Hocking advised that he would have done this type of job [putting up a work platform] 'countless times'. 69. Mr Robinson stated following the incident that he had done the job of putting up the work platform 'hundreds of times'. Mr Robinson had a scaffold ticket dated 2008. Mr Robinson stated following the incident that his scaffolding experience was 'quite long'. Mr Robinson had worked for the RTA for a period of 15 or 16 years at the time of his interview with WorkCover in December 2008. Nonetheless, Mr Hocking and Mr Robinson both stated that on the day of the incident, they were not given any instructions in relation to the task of erecting the work platform and had erected it the way they always had on previous occasions. Investigation of the Incident 70. On 14 October 2008, Inspector Jones attended the premises and made observations contained in a Factual Inspection Report dated 17 October 2008 which is annexed and marked "J". 71. On 14 October 2008, Inspector Jones took a number of photographs of the premises which are annexed and marked "K". 72. On 16 October 2008, Inspector Jones issued an Improvement Notice No. 250621 upon the RTA to ensure the correct and properly rated safe working load chains and appropriate shackles were used when slinging loads were to be lifted. 73. On 16 October 2008, Inspector Jones issued a Prohibition Notice No. 147814 upon the RTA to ensure the repairs to the monorails were done in accordance with the SJE report, to prohibit plant from being suspended from the monorails or bear any weight until repairs were completed, and to prohibit bridge re-decking work from being performed until the monorails were deemed fit by engineers. The RTA complied with the Prohibition Notice and it was formally lifted on 31 October 2008. 74. A copy of Inspector Jones' statement is annexed and marked "L". 75. A copy of Inspector Martin's statement is annexed and marked "M". Report of Mr Vincent Higginbotham 76. On 3 May 2010 Mr Vincent Higginbotham prepared a report at the request of the WorkCover Authority of NSW that considered whether the monorail bolt that had been recovered from the Bridge had previously been cut with an oxy acetylene kit or angle grinder or whether it had failed due to the load imposed by the work platform. A copy of Mr Higginbotham's report is annexed and marked "N". System of work after the incident 77. After the incident, the damaged work platform was removed from the premises. 78. Since the incident the RTA has revised the SWMS, dated 22 October 2008, to include the section "4. Erection of Scaffold" (page 3 of SWMS). 79. That section provides guidance for the erection of scaffolds including: "a. inspect existing monorails including hanger rods, bolts, nuts, washers, plates, anchors, connections. IF CAN'T SEE AND TOUCH IT, THEN IT FAILS. ... h. DO NOT RIDE PLATFORM WHILE BEING WINCHED." In addition, the revised RTA SWMS dated 22 October 2008 provided within section "4. Erection of Scaffold" that safety harnesses are to "anchored to outer truss for first use of scaffold ... ." A copy of the Safe Work Method Statement dated 22 October 2008 is annexed and marked "O". 80. After the incident, the modifications to the monorails were carried out under the supervision of SJE. A "boom lift" working off the ground under the Bridge was used to put the monorails back up. Once the monorails were repaired, the RTA put up lightweight scaffolds to carry out the original modifications recommended by SJE. 81. The RTA has issued a state wide safety alert to help ensure that all bolts and connectors and similar fastening devices on bridges are thoroughly inspected before being cut or otherwise modified. 6The agreed statement of facts was supplemented by some additional agreed facts, which are in the following terms: Mr Jones has stated to Inspector Jones that: (a)It was unsafe to suspend one 1500kg swing scaffold prior to carrying out the suggested modification to the monorails (b)The monorails were not certified to carry the weight of 1500kgs without the modification being carried out. The defendant did not take all reasonably practical steps to ensure the modification identified by Mr Jones were undertaken before the work platform was suspended as other means were available and used after the incident as described in paragraph 80 of the Agreed Statement of Facts. 7In essence, the incident that gave rise to these proceedings was the result of some work which had previously been carried out on the bridge in late 2007 by an RTA work crew. A number of tops to bolts were cut through using an oxy-acetylene torch. Unfortunately, one of those bolts secured the monorail attached to the underside of the bridge. Whether or not the person or persons responsible for the cutting of the bolts realised that one of them was one of the bolts holding the monorail in place is not known. However, it is clear that no record was kept of what occurred and no one checked to see whether or not the cutting of this particular bolt affected the integrity of the monorail. The fact that the bolts had been cut was obscured by the kerbing to the bridge, which was placed over them. Accordingly, the work crew who commenced to undertake the maintenance of the bridge in 2008 were ignorant of the fact that the monorail was not as secure as it would have been if the bolt had not been cut. 8Before commencing the maintenance work in 2008, the defendant obtained an opinion from a Mr Jones, an engineer, which recommended that certain modifications be made to the monorail in order to ensure that it was secure before work platforms could be hung from it. Messrs Hocking and Robinson were in fact about to carry out these modifications when the incident occurred on 14 October 2008. Unfortunately, the method that was used, namely the swing scaffold weighing 1500 kilograms, was inherently unsafe because of the state of the monorail, something which they were endeavouring to correct, albeit that no one in the defendant at that stage was aware of the defect created by the cutting of the bolt and its concealment. 9Although the defendant did have in place a safe work method statement, this did not contain sufficient detail to have required the defendant's personnel to have taken remedial steps prior to 14 October 2008. 10The work that Messrs Hocking and Robinson were carrying out was inherently dangerous, given that they were suspended from the bridge on a work platform. The risk of injury if the platform fell was readily foreseeable. 11The commencement point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offence. Viewed in one light, it was inherently dangerous for the defendant to be in control of premises upon which work was being performed using a monorail in circumstances where the securing of the monorail to the underside of the bridge had been seriously compromised when one of the bolts holding it in place had been cut through. On the other hand, the incident might be seen as being the manifestation of an act of carelessness on the part of some individual or individuals in failing to ascertain and understand that one of the bolts, which were being cut through in 2007, assisted in holding the monorail in place, against the background of a defendant who, on the evidence, had a comprehensive system in place designed to ensure that work that was being performed for it and on its premises was carried out safely. 12For the defendant there was tendered into evidence an affidavit of Shailendra Tripathi, Acting General Manager OHS, which canvassed not only the incident but also the nature and extent of the defendant's operations and its practices, procedures and protocols in place both before and after the incident referable to the type of work that was being carried out when the incident occurred. The defendant had in place prior to the incident comprehensive procedures designed to ensure that work that was carried out on premises controlled by it was done so safely. After the incident these procedures were reviewed and modified. In particular, the new procedures are designed to avoid the type of circumstances arising in the context of these proceedings, namely by identifying any potential problems that may arise in the course of carrying out any work on the defendant's premises. 13I am satisfied on the evidence that the defendant's personnel who were involved in these proceedings had received training and instruction and were generally supervised, albeit that the defendant had failed to identify the fact that the bolt securing the monorail had been cut through. 14As the prosecutor submitted, this is not the case of a defendant who has failed to make a genuine attempt to comply with its occupational health and safety obligations. Nevertheless, the Act requires that the controller of premises ensure that those premises are safe, and a failure to do so must result in the establishment of a breach. The breach in all the circumstances of these proceedings was a serious one, as conceded by the defendant, but one that I would assess as being midrange, a position asserted by both the prosecutor and the defendant. 15In assessing penalty, I shall also take into account the deterrent effect that the imposition of a penalty will provide, both generally in the community and specifically for this defendant. The specific deterrent effect may, however, be ameliorated by the demonstrated commitment, on the evidence, of this defendant to the discharge of its occupational health and safety obligations. 16There are a number of subjective matters which may be taken into account in favour of the defendant that will have the effect in the aggregate of reducing the penalty which would otherwise be imposed. None of these matters was the subject of any controversy in the proceedings. The defendant entered a plea at the earliest appropriate opportunity, it has expressed tangible contrition and remorse for what occurred, it co-operated fully with the WorkCover Authority of New South Wales in its investigation of the incident, and it is a good corporate citizen. 17A number of the defendant's personnel, and in particular personnel employed in the area where the incident occurred, were present in Court during the hearing. 18The defendant has fifteen prior convictions for offences under the Act but the convictions occurred between 22 September 1994 and 24 March 2011. Furthermore, the penultimate conviction occurred on 27 October 2003. Thus, there was a period of eight years during which no conviction was recorded. Whilst the number of convictions might be said to reflect adversely on the defendant, this needs to be considered in context. At the time of the incident about 9,000 persons performed work for the defendant together with a large number of contractors. The defendant is responsible for the management of over 5,000 bridges, 3,700 traffic signals and other traffic facilities, almost 18,000 kilometres of state roads and almost 3,000 kilometres of regional and local roads throughout New South Wales. The fact that the defendant has prior convictions results in the maximum penalty to which it is exposed being $825,000. Otherwise, I would not consider the defendant's prior record as impacting upon the level of penalty that should be imposed in these proceedings. 19The prosecutor sought orders for the payment of a moiety and for costs, neither of which was opposed by the defendant. 20Having regard to all of the matters to which I have referred, including the objective seriousness of the offence, the need to take into account deterrence, and the subjective factors that I have outlined, I am of the opinion that an appropriate penalty is the sum of $175,000. Orders 21I make the following orders: 1. The defendant is found guilty of the offence with which it is charged and convicted accordingly. 2. I impose a monetary penalty of $175,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor assessed in default of agreement. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2011