Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Wade v John Holland Rail Pty Ltd [2011] NSWIRComm 125 Hearing dates: 30 August 2011 Decision date: 12 September 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a) in relation to Matter No IRC 2050 of 2008 regarding John Holland Rail Pty Ltd: (i) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 2050 in which the defendant entered a plea of guilty to the Amended Application for Order; (ii) the defendant is fined the sum of $120,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as further ordered by the Court. (b) in relation to Matter No IRC 2055 regarding John Holland Pty Ltd: (i) the defendant is found guilty of a breach of s (10(1) of the Occupational Health and Safety Act 2000 as particularised in IRC Matter No 2055 in which the defendant entered a plea of guilty to the Amended Application for Order; (ii) the defendant is fined the sum of $135,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as further ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) s 10(1) - pleas of guilty entered by two corporate defendants members of same corporate Group - proceedings against other corporate and individual defendants arising from same workplace accident previously concluded - rail upgrade work - use of excavator operating in reverse - excavator supplied by sub-contractors - rail workers at risk of collision with excavator - excavator defects known - failure to apply/enforce existing safety systems - extensive control over safety exercised by principal contractor defendant and corporate Group member defendant - rail worker seriously injured - offences objectively serious - general and specific deterrence required - discount for early pleas - substantial subjective factors - defendants show contrition and remorse - issue of relative culpability compared with corporate defendants dealt with in separate proceedings - fines imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Inspector Wade v Goldspring's Earthmoving Pty Ltd [2011] NSWIRComm 106 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 R v Harrison 1997) 93A Crim R 314 R v Paull (1990) 20 NSWLR 247 at 234 R v Rusby [1977] 1 NSWLR 594 Category: Principal judgment Parties: Inspector Paul Wade (Prosecutor) John Holland Rail Pty Ltd (Defendant in 08/2050) John Holland Pty Ltd (Defendant in 08/2055) Representation: M Cahill of counsel (Prosecutor) G McGrath of counsel (Defendants) Criminal Law Practice, Legal Group WorkCover Authority of NSW (Prosecutor) Herbert Geer (Defendants) File Number(s): IRC 2050 of 2008 IRC 2055 of 2008 Judgment 1The two defendants before the Court have entered guilty pleas to breaches of the Occupational Health and Safety Act 2000 following a serious workplace accident that occurred in November 2006. John Holland Rail Pty Ltd ("JHR") has pleaded guilty to a breach of s 8(1) of the Act while John Holland Pty Ltd ("JH") has pleaded guilty to a breach of s 10(1) of the Act. The two prosecutions concerned work being undertaken at a construction site known as the Sandgate Rail Grade Separation Project located on the Kooragang railway down line at Sandgate in the State of New South Wales and the use of a sub-contractor supplied excavator . 2JH is a substantial company having commenced business in Australia in approximately September 1950. JHR was incorporated in approximately June 1987 and operates within the Rail Australia arm of the JH group of companies. At this worksite, JH was the principal contractor. As principal contractor, JH engaged or otherwise arranged for JHR to carry out their construction work, including track welding and related works on rail lines located within the site and the spinning up and shaping of the ballast as part of the ongoing track work. 3On 7 November 2006, Mr Caleb Stalder and Mr Todd Faux were employed by JHR as track welders at the site. Mr Eduard Faux was also employed at the site by JHR as a supervisor of the construction works. 4As the principal contractor, JH had entered into a contract with Australian Rail Track Corporation Ltd for this rail separation and upgrade work. Under the contract, JH was to develop and enforce a project occupational health and management plan and a site-specific management plan. Under that plan the management of mobile plant operations was identified as a key risk issue and the responsibilities of "project staff" included the work performed by foremen employed by the John Holland Group ("the Holland Group"). Part of those responsibilities were to implement the safety plan and project specific safety procedures, planning to do all work safely through the development and review of Safe Work Method Statements ("SWMS"), ensuring safe equipment and plant was provided and maintained, conducting safety inspections and initiating hazard rectification and supervising and monitoring compliance with SWMS and the plan. Plant and equipment were to be inspected prior to use on-site and were to be inspected daily by the operator and serviced monthly as per manufacturer specifications. 5The plan also required the monitoring of "plant equipment and process" so that plant was inspected at a set frequency. Under these arrangements there was a requirement for JH to conduct pre-work safety briefings on-site for all employees and sub-contractors and to do so daily at the commencement of each shift when work conditions changed. There were to be discussions with all employees and sub-contractors on-site concerning any site specific hazards and the SWMS associated with the work activities scheduled during the day or the shift, including informing all employees and sub-contractors on-site of the preventive measures and procedures to be adopted to control and eliminate hazards. 6In relation to the on-site responsibilities of JHR, at all material times the WorkCover Code of Practice governing the moving of plant on construction sites applied, especially in regard to the operation of the excavator. The code referred to the risk of injury to pedestrians and ground workers within a construction site associated with the movement of mobile plant and in particular, made reference to risks associated with reversing plant. Recommendations were made, where possible, for plant to be moved in a forward direction and that a spotter be used to ensure that persons were not at risk before plant reversed. Vehicle movement procedures were to be developed and risk assessments undertaken, especially when site conditions changed. An assessment of visibility of plant and traffic from all areas of the worksite was required. Isolation steps were to be taken to ensure the safety of those in the vicinity. The defendant was aware of these risks. 7JH had developed a worksite protection plan to be used in conjunction with a site safety system. Those arrangements involved a detailed job safety analysis regarding track laying and track work on the project, detailed SWMS and daily pre-work rail briefings. JHR's SWMS recognised the need for all mobile plant, including excavators, to be fitted with rotating beacons, motion alarms and radio communication equipment. The system recognised the need for communications to be maintained between mobile plant operators and ground workers and the need for pre-start checks for faults to ensure plant was fitted with rotating beacons and motion alarms. The systems also identified the need to maintain a safe working distance (not less than five metres) between track machines such as an excavator and track welders and involved erection of appropriate barricades and bunting to prevent inadvertent access into areas in which track machines were operating. These safety controls were to be the subject of a daily pre-work briefing. 8On the day in question, despite these detailed provisions applying to both defendants, these requirements were not complied with or enforced. On this day, JHR placed an order with Goldspring's Earthmoving Pty Ltd/Fred Goldspring's and Sons Pty Ltd ("Goldsprings") for the supply of an excavator together with an operator. Goldspring's supplied the plant and an operator, Mr Jade Marshall, on that day. Mr Marshall moved the excavator on to the site without attending at the site office and reported directly to Mr Eduard Faux, an employee of JRH. Mr Eduard Faux directed Mr Marshall to spin up the ballast so that the tamper could follow and tamp it down. Mr Marshall was not required to undertake a pre-start briefing with respect to the work to be done on site nor did he perform a pre-start check on the excavator before beginning work. Mr Eduard Faux did not inspect the machine before Mr Marshall commenced work at the site. 9The excavator as delivered had the following defects: the machine was not fitted with operable warning lights; was not fitted with an operable, audible reversing or motion alarm; was not fitted with an operable horn; was fitted with a cradle that was hardwired into the machine but was not fitted by Mr Marshall with a radio or walkie talkie for communications with ground controllers or ground workers; was not fitted with an external rear vision mirror; and, the rear vision mirror mounted in the cabin of the machine gave restricted rear vision because of the counterweight as located, blocked or restricted the view directly behind the cabin of the machine. At the time of commencing work, Mr Marshall was aware that the machine was not fitted with any operable warning lights or any operable reversing or motion alarms or any communication devices. 10Mr Marshall performed work with the excavator on the up and down lines and did so in reverse mode. Mr Eduard Faux had assigned three teams of welders, including a team consisting of Mr Stalder and Mr Todd Faux, to perform track welds and related work on the same rail lines as those upon which Mr Marshall was working with the excavator. In the early afternoon, Mr Stalder was working on the up line and in the process of completing a cut through of the eastern rail line when he was struck by the rail excavator with the rear wheel of the excavator severing Mr Stalder's left arm just below the elbow. Following the accident, Mr Stalder underwent surgery to re-attach his severed limb. While the surgery was successful, Mr Stalder sustained irreparable ulna nerve damage resulting in total loss of feeling in the middle, ring and little fingers and ulna aspect to his left hand. In mid-2007 Mr Stalder returned to work with JHR and was retrained as a welding inspector. 11Following this accident, Inspector Wade commenced proceedings in this Court against JH and JHR. Ultimately, both defendants entered guilty pleas to an Amended Application for Order. The particulars of the charge against JHR pursuant to s 8(1) of the Act were particularised as follows: 1. Particulars of the charge are: a. employees of the defendant, namely Caleb William Stalder and Todd Faux, were exposed to a risk of being hit or struck by moving plant, namely, a rail mounted Kobelco SK60 Hi Rail excavator ("excavator") whilst they were performing welding work on a rail line located within the site; b. the defendant failed to maintain work procedures, including sage work method statements, with respect to pedestrian movements and/or work performed at ground level ("ground work") within the site so as to isolate pedestrian movements and ground work performed within the site from mobile plant and vehicles moving within the site; c. the defendant failed to erect appropriate barriers, such as "truck stops" for the purposes of isolating the operations of the Kobelco SK 60 Hi Rail excavator from track welders such as Caleb William Stalder and Todd Faux working on the same rail lines as the excavator; d. the defendant failed to perform any or any proper risk assessment with respect to the interaction between mobile plant operating and/or moving within the site, namely, the Kobelco SK 60 Hi Rail excavator and track welders such as Caleb William Stalder and Todd Faux who were working on the same rail lines within the site as the excavator. 2. As a consequence of the defendant's acts and omissions William Caleb Stalder and Todd Faux were placed at risk. 3. Further, as a consequence of the defendant's acts and omissions, William Caleb Stalder sustained serious injury. 12The charges against JH pursuant to s 10(1) of the Act were in almost identical terms in relation to (a), (b) and (d). Paragraph (c) pursued against JHR was not pursued against JH. 13At the sentence hearing the parties agreed that the two matters should be heard together and that evidence in one matter would be evidence in the other. It was noted that the Agreed Statement of Facts in both matters were essentially the same. Attention was drawn to the fact that the Goldspring's entities had been charged with breaches under s 8(2) and s 11(1)(a) of the Act and those matters had been heard by Backman J ( Inspector Wade v Goldspring's Earthmoving Pty Ltd [2011] NSWIRComm 106). The Court was informed that the Agreed Statement of Facts in the "Goldsprings' matters insofar as they were relevant to the current proceedings, were substantially the same if not identical to the Agreed Statement of Facts in the present prosecutions before the Court. 14In the Goldsprings matters, her Honour imposed fines of $105,000 and $84,000 against the two corporate entities as representing their relative culpability in relation to this workplace accident. Significantly, at [45], her Honour made a finding that it may be reasonably concluded that the overall conduct of the defendants in the proceedings before her, although undoubtedly serious, were "less culpable than the conduct of John Holland." The Court was informed that this finding of her Honour would be contested in the present proceedings and that, on the evidence in these proceedings, such a finding should not be made. The Court expressed the view that this was a highly undesirable process where parties to the same workplace accident were dealt with by different members of the Court and where the Court, dealing with the later matters, is left in the potentially embarrassing position of having to make different finding of fact as to relative culpability in circumstances where the defendants in the other proceedings have had the benefit of a lower level of penalty. This potentially embarrassing situation is avoided when steps are taken to have all the matters dealt with by the same judicial member and when arrangements can be made for the sentencing to take place in a way that avoids this difficulty arising. Despite this difficulty, the parties urged the Court, as presently constituted, to hear submissions and determine the penalty in each matter and having regard to the circumstances disclosed to the Court, reluctantly that course was adopted. 15The evidence for the prosecutor comprised of: an Agreed Statement of Facts; a number of photographs of the equipment at the site of the accident; an extensive factual report prepared by Inspector Wade; a 21 page SWMS representing the type of SWMS in operation at the site on or about the time of the accident but not drawn in relation to this particular piece of plant although dealing with plant; The Moving Plant on Construction Site WorkCover Code of Practice dated 2004; and, in each case, certificates of prior convictions showing that JHR had no prior convictions but JH had eight prior convictions. These convictions arose from incidents in 1988 and 1989 in which four penalties of $750, three penalties of $1,000 and one penalty of $1750 were imposed - all dealt with by the Chief Industrial Magistrate. There was no material available as to the nature of those offences. In view of the similarity of the Agreed Statement of Facts, only those facts applying to JHR are attached to this judgment to allow an understanding of the relevant background to these sentencing proceedings. 16Both defendants relied upon an affidavit sworn by Mr John Sharpin, the operations safety manager employed by the Holland Group. Mr Sharpin stated that he was authorised to make the affidavit on behalf of JH and JHR. As operations safety manager, Mr Sharpin identified key roles of his position as: ensuring operations for the Holland Group were managed in accordance with the group procedures and policy; case management of workers compensation rehabilitation under the Commonwealth legislative regime applicable to JHR and JH; and, providing guidance to and mentoring of project safety managers and safety co-ordinators. Mr Sharpin had previously been employed by WorkCover as a State co-ordinator, team co-ordinator and Inspector. 17In providing background information as to these two members of the Holland Group, Mr Sharpin noted that JHR had been operating in Australia since mid-1987 and currently employed approximately 250 people. JHR was placed within the rail arm of the Holland Group and that arm had a total of 650 employees. He described JHR as having high levels of systems in place for hazard identification and risk control as well as comprehensive injury management and rehabilitation procedures. JHR undertook construction, maintenance and refurbishment of rail infrastructure and had been involved in many substantial projects. Mr Sharpin was able to identify from company records a considerable number of projects where the value of rail work projects exceeded $1M. In relation to JH, it had been operating in Australia since September 1950 and currently employed approximately 4000 people. JH operated within the group of corporations and the group had a total of 8000 employees. JH undertook construction, engineering and maintenance contracting throughout Australia and had been involved in some very large and important projects. Again, a large number of significant projects were identified by Mr Sharpin involving project works in excess of $1M. 18For over 40 years the Holland Group had been utilising a workplace risk assessment as central to its safety systems. This process had been constantly reviewed. From the risk assessment, a comprehensive safety management plan was devised by the relevant corporations and implemented to manage health and safety issues on each particular site. The risk assessment sought to address all identified and identifiable hazards. The project occupational health and safety rehabilitation management plan documented the methodology to eliminate or mitigate the risks identified by the risk assessment and defined all the procedures to be used on site to achieve that purpose as well as providing other applicable support information. The management plan concept had been in operation in the Holland Group for approximately 40 years and had been continually reviewed over that time. Both JHR and JH operated under the same management plan at the Sandgate project. 19On the site where this accident occurred JH, as the principal contractor, had in operation a project and safety management plan that required sub-contractors to use and comply with the SWMS. At the commencement of each shift JH and JHR conducted pre-work safety briefings and pre-work protection briefings with employees and sub-contractors on the site. JHR also had a worksite protection plan operating in conjunction with the site safety system. That plan outlined the risks to rail workers whilst performing rail safety work and used the Rail Infrastructure Managers' Network Rules to provide protection from being struck by trains on the line being worked on or while working on adjacent lines. That plan had been drawn up by a qualified protection officer who briefed the workers and also laid down the worksite protection devices to be used such as flags, detonators, additional protection officers or spotters. 20On 7 November 2006, Mr Sharpin observed that the rail excavator hired by JHR, together with a qualified operator, (Mr Marshall) had been delivered to the site earlier on that day. Goldspring's had supplied the excavator and the driver. Mr Marshall arrived at the site before the excavator but by-passed the site office and went directly to the supervisor, Mr Eduard Faux, who in turn directed him to operate the machine at the northern end of the site and drive the excavator southwards. Mr Faux also assigned a team of welders, including Mr Stalder and Mr Faux's son, Todd Faux, to work on the tracks from the southern end of the site, working northwards. 21Over a number of years, as required, Goldspring's had been able to meet JHR's urgent notice needs in regard to plant and it had always been supplied to a good standard with a competent operator. In this case, Mr Marshall held a track machine operator's qualification and a certificate of competency as an excavator. Mr Sharpin noted that the safe use of track machines and excavators required the operator to carry out daily pre-start checks on the machines before operation. After the accident, JHR became aware that Mr Marshall, on the day of the accident, had not conducted the required full pre-start check of the rail excavator and that Mr Marshall was also aware of deficiencies or non-compliance of the machine but did not bring it to the attention of either JH or JHR. Mr Sharpin also spoke of the qualifications and certificates of competency held by Mr Faux and Mr Stalder. 22Mr Sharpin then addressed steps taken since the accident. Firstly, the defendants considerably extended the safe working distance between track mounted plant and persons working in that area. Rail Corp had adopted this policy as well. JHR now ensured that a physical separation was maintained by using barriers (such as rail trolleys located along the track behind and in front the machines) serving as both a physical barrier to machines and a visual alert to track workers. In 2009, the Holland Group introduced a risk management process that involved the "very thorough planning of activities and substantial identification of hazards and risks from moving plant." A task risk assessment was now available for jobs where moving plant was a risk factor. The task risk assessment was to spell out controls that must be used before commencing work in order to avoid the risk of a similar injury occurring. Prior to commencing a particular task, workers were provided with and were directed and encouraged to use an environmental prompt list known as "Start Card" which is part of the risk management process. This approach allows a worker to perform a final check to ensure that everything for that job is in accordance with the task risk assessment. Other JHR and JH projects employed different controls such as stop boards on tracks, jersey curves, hard barricading etc to prevent plant and people coming into collision. Pre-start briefs were to focus on keeping plant away from people and people away from plant. 23Mr Sharpin spoke then of the plant hazard assessment noting that, since January 2007, all plant used by JH and JHR has been subject to an extensive plant hazard assessment, a process required by Commonwealth Safety legislation and conducted by an assessor who was generally a John Holland Group representative. That process was undertaken before plant was permitted on site. This hazard assessment enabled trained assessors to identify whether the design or use of the plant would pose a risk to the operator or persons who would be within proximity of the plant. The plant hazard assessment was a requirement of the plant pre-start check undertaken when plant was brought on to the site. In addition, every employee of JHR and JH was "empowered to stop work" if they believed that there may be a risk of injury and this was to be done without repercussions. Health and safety representatives were elected within every work group to facilitate a worker rasing any issues, including safety issues, with the defendant or within the Group. 24Mr Sharpin dealt in some detail with the rehabilitation and assistance offered to Mr Stalder. Mr Stalder, after a considerable period off work, had returned in mid-2007 as a welding inspector and had continued employment with JHR. Upon return to work he was appointed to the position of track supervisor undertaking work commensurate with his abilities and injuries. He continued extensive work conditioning programmes during this time, using physiotherapy to assist with his injuries. Between 2008 and 2010 he was offered and undertook several training programmes under JH's Passport to Safety Excellence programme. In October 2008 he also undertook the health and safety representative training course. 25In 2009, Mr Stalder expressed an interest in a career change as a safety practitioner and was offered an opportunity to assist the safety co-ordinator and safety management at a company depot and was encouraged to undertake studies for his Certificate 1V in occupational health and safety. Mr Stalder took up this opportunity and JHR paid for his studies. On completion of that course, JHR paid for further studies undertaken by Mr Stalder relating to a Certificate 1V in training and assessment. Arrangements were then made for him to undergo a trial as a safety officer trainee in western Sydney and in addition to his wages, JHR provided him with a work vehicle and an accommodation allowance. 26Mr Stalder was also provided with mentoring by an experienced safety manager and in April 2010 he applied for and was awarded a position as a full-time safety trainee and was transferred to a location at Mardi, New South Wales, being closer to his home. It was said that Mr Stalder had nearly completed his traineeship and would finalise it in approximately mid-September 2011 upon his return from an overseas holiday and would then be appointed to a position with JHR as a full-time safety officer. It was pointed out that Mr Stalder's physical and mental condition since his accident had been constantly appraised by the Holland Group's compensation and rehabilitation co-ordinator. Mr Stalder, at all times and at no cost, had been able to obtain access to the Holland Group's employee assistance programme. 27Mr Sharpin dealt in detail with the Holland Group's commitment to occupational health and safety as encapsulated in the objective described as "No harm - to anyone, any time." He referred to the Holland Group's safety policy statement of commitment being supported by senior management, including board members and that unsafe work practices and behaviours were not tolerated at any level. There was a commitment to compulsory pre-work briefing. The Holland Group had maintained a fully integrated safety management system across a broad range of specialist industries and the system had been accredited to AS/NZS 4801:2001 New South Wales Government Management and System Guideline 4 th ed and the office of the Federal Safety Commission. The accredited safety management system was tailored to manage specific risks across specialist business. 28The Group also maintained accreditation from specialist Government regulators and examples were provided. Numerous documents were identified as being "integral components" of the Holland Group's safety management system. The Passport to Safety Excellence programme undertaken by Mr Stalder was described as a key element in the Holland Group's occupational health and safety and workers compensation improvement strategy. There were over 2,500 employees within the group of companies in critical safety positions who were currently (or were soon to participate) in this safety initiative. The Holland Group was also a registered training organisation with nationally recognised qualifications being conferred following the successful completion of certain training models and assessments. 29The Holland Group and the member companies were described as being involved in community affairs and charities throughout Australia. Both JH and JHR actively supported local charities and Mr Sharpin stated that hundreds of thousands of dollars had been raised over the years to support groups as diverse as children with cancer and local animal refuges. Many youth schemes and community organisations, sporting clubs and art exhibitors had been beneficiaries of the Holland Group activities. Other detail was provided as to assistance granted to schools, operatic societies and organisations supporting persons with disabilities. There had also been activity-based action regarding indigenous employment programmes. Mr Sharpin stated that he was aware that those in "governance" at JHR and JH were extremely concerned for the safety and wellbeing of their employees and that they sincerely regretted the occurrence of this incident and the injury sustained by Mr Stalder. Mr Sharpin was not required for cross-examination. DELIBERATION 30In response to questions from the Court, counsel accepted that numerous findings of fact made by Backman J in the Goldsprings matter were not called into question by the Agreed Statement of Facts in the present matters with the only issue being whether the Court, as presently constituted, would form a different view to her Honour concerning the greater culpability of the John Holland defendants. 31In addressing the objective seriousness of the offence, her Honour at [23] concluded that the offences were serious and identified the following factors as underscoring that conclusion: the risks of mobile plant colliding with ground workers on construction sites, particularly reversing vehicles and more so mobile plant with restricted visibility in the direction of travel while reversing were obvious and were well-known in the industry prior to the incident; the corporate defendants were aware of the need to ensure that the excavator was fitted with safety equipment, including an operable rotating beacon, an operable reversing or motion alarm, UHF radio communication equipment, and reversing mirrors that provided an adequate view to the rear of the machine; engineering controls, such as truck stops or barriers were also well-known in the industry prior to the incident; administrative controls, such as the use of spotters and minimum safe working distances were also well-known in the industry before the incident; in the event of a collision with a ground worker, the prospect of serious injuries, including a risk of a fatality, was not unlikely. 32There was no submission in the present proceedings that the circumtances involving these two defendants should lead to a different conclusion. In the written submissions for the defendant it was accepted that an offence under s 8 of the Act was a serious offence "both by reason of the expression of legislative intent and objectively." It is assumed that the same submission, in these circumtances, would be made in relation to the s 10 offence: indeed, it was accepted that each offence was "objectively serious." Counsel for the prosecutor pointed out that, pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, in assessing the objective seriousness of the offence the Court should have regard to the serious injury caused by the identified failure. While the injuries actually received by Mr Stalder were serious, it was submitted that the risk of a fatality in the case of a collision between the excavator and the ground worker "was obvious". The Court accepts that submission. 33In the course of submissions for the defendants, senior counsel's attention was drawn to [51] of the written outline for the prosecutor dealing with the issue of objective seriousness. It appears that these matters were not contested by the defendants . The Courts accepts that summary as established on the evidence. Those matters were: the risk of serious injury and/or a fatality associated with the collision between mobile plant and pedestrians/ground workers was obvious; while Mr Stadler did not sustain fatal injury, it was common ground that Mr Stadler sustained grave personal injury resulting in the irreparable damage to his arm. The avoidance of fatality on this occasion was a matter good luck and not good safety management; the risk of mobile plant colliding with pedestrians/ground workers particularly reversing mobile plant, were obvious and was specifically known to the corporate defendants well prior to the subject accident; it was commond ground that the corporate defendants were aware of the need to ensure that the excavator was fitted with safety equipment, including an operable beacon, operable audible reversing or motion alarm and communications equipment to enable communications to be maintained between the machine operator and ground controllers and/or ground workers required to work in proximity to the machine; it was apparent that the corporate defendants were well aware of the need to ensure that the engineering controls such as barriers and administrative controls such as the use of spotters and minimum safe working distances were required to be put in place and maintained for the purpose of obviating or reducing the subject risk. Having regard to all of the above matters the Court is satisfied that these are serious breaches of the Act and that employees, including Mr Stalder, were at risk of sustaining very serious or fatal injuries. 34The next important consideration is the maximum penalty available in each of the matters. JHR has no prior convictions and therefore is liable to a maximum penalty of $550,000. JH has eight prior convictions occurring between 1988 and 1989 and therefore faces a maxium penalty of $825,000. 35The elements of general and specific deterrence then need to be considered. In the present matter, senior counsel for the defendant submitted that, in light of the extensive safety measures already taken by the defendants and the amendments to that system to address this specific risk taken since the accident, together with the defendants' good industrial records, meant that there was "no need" for general or specific deterrence to be a significant factor in assessing penalty. It was submitted that, in realtion to both general and specific deterrence, each defendnat had a "credit worthy record" over a considerable timeframe and continued to have an extensive engagement in heavy and major construction projects, inferentially without coming into frequent breach of safety legislation. That factor was said to be applicable to both forms of deterrence. In other words, long term endeavours to ensure a safe system should be given recognition for that factor and that itself will act as a general deterrent in the wider industrial community. 36It has long been accepted that general deterrence aims to discourage other potential offenders from committing an offence while personal or specific deterrence is aimed at discouraging the particular offender from committing the offence again. In R v Paull (1990) 20 NSWLR 247 at 234, Hunt J, in making observations about provisions in Commonwealth legislation, spoke generally of deterrence and spoke of general deterrence as being accepted as the main purpose of punishment and that the usual subjective considerations were necessarily subsidiary consierations. In R v Harrison (1997) 93A Crim R 314 at 320, Hunt CJ at CL said at 320: Except in well defined circumtances such as youth or the mental incapacity of the offender ... public deterrence are generally regarded as the main purpose of punishment, and the subjective considerations relating to the partiuclar prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. These statements may be read in the context of the approach adopted by Street CJ in R v Rusby [1977] 1 NSWLR 594 at 597 where, following a discussion as to the main purposes of punishment and the importance of deterrence, his Honour continued: On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. 37Having regard to the above authorities, both general and specific deterrence will play a role in the setting of an appropriate penalty in both these matters although, in relation to specific deterrence, it is appropriate for that aspect to play a lesser role. In dealing with the issue of general deterrence in the Goldsprings matters, Backman J at [24] stated: General deterrence is an important factor to be taken into account. It has sought to be emphasised many times in this jurisdiction that construction sites are notorious for both the seriousness and frequency of injuries which occur as a direct result of hazards present at a particular site or because of the absence of safe work practices or as a result of unsafe work practices which are left unaddressed. The potential dangers posed by large and heavy machinery, such as the excavator, operated at construction sites, should not be overlooked. This is particularly important in circumstances where a common feature of any construction site is the presence of a large and disparate workforce consisting of workers new to, and unfamiliar with, the site. It is the responsibility of all employers at such sites to protect workers from hazards present at the site and to address any unsafe work practices which have the obvious potential to expose the workers to the risk of serious injuries. In the present matters, the Court would adopt that statement: despite well developed and comprehensive safety systems, those systems failed and/or were not applied by supervising level employees in relation to whom the defendants have spent considerable time and resourves in training. These cases present a stark warning to those in general industry and the construction industry in particular. As employers they are not able to rest on their laurels where they have develped comprehensive safety systems and they must always be alert to ensure that those systems are adhered to and enforced. 38It is appropraite to next consider the issue of the relative culpability of these defendants in the context of the nature of the breaches committed by the Goldspring's defendants. The issues that influenced Backman J to conclude that the overall conduct of the Goldspring's defendants, while undoutbedly serious, was less culpable than the conduct of JH, appear to stem from an assessment of the role of JH as the controller of the site. Her Honour noted that the JH defendant's role on the site showed its overall control in matters of safety and it was noted that both Mr Stalder and Mr Todd Faux were employed by JHR. JH had developed a worksite protection plan that was used in conjunction with the site safety system and included safety controls, including detailed job safety analaysis regarding track laying and track work, detailed SWMS and daily pre-work rail breifing. 39The Agreed Statement of Facts before her Honour showed that the Holland defendants adopted a safe working system and a methodology that recognised the need for all mobile plant, including excavators, to be fitted with rotating beacons, motion alarms and radio communication equipment. The Holland's system recognised the need for communication to be maintained between mobile plant operators and ground workers and recognised the need to undergo pre-start checks for faults and to ensure that all such plant was fitted with rotating beacons and motion alarms. Further, that system identified the need to maintain a safe working distance of not less than five metres from track machines such as the excavator. All these safety controls were to be the subject of a daily pre-work briefing. On the facts before her Honour she concluded that none of the precautions set out in the JH system were enforced at the site on the day of the offence. 40Her Honour then referred to contractual arrangements concerning the Holland defendants on site and their obligation to develop and enforce both a project management plan and a site specific management plan and their obligation to ensure compliance by sub-contractors with the safety project management plan and site specific plan. That included ensuring that any sub-contractor had in operation and was compliant with the SWMS that satisfied the requirements of the Occupational Health and Safety Act and its regulations . There were also contractual obligations in relation to conducting daily pre-work safety briefings for all employees and sub-contractors on site. JH was to discuss with all employees and sub-contractors site specific hazards and safety work methods associated with the work scheduled during the day and inform all employees and sub-contractors of preventive measures and procedures to be adopted to control or eliminate those hazards. Her Honour found in relation to those matters (and it was agreed) that none of those steps were taken by the JH defendants to ensure safety and compliance with regard to the work being undertaken at the site by the Goldspring's defendants. It was agreed that those steps were not adequately taken in respect of the operation of the excavator. It was also agreed that, Mr Faux, the supervisor appointed by JH to oversee the work performed by Mr Marshall, was aware that Mr Marshall had not attended the site office on the morning of the incident in order to sign on and was also aware that Mr Marshall had not attended the pre-work briefing held prior to the commencement of the work on the day of the incident. 41Her Honour continued, observing that the evidence indicated that the J H defendants controlled the site and had attendant responsibilities for the safety of employees and sub-contractors on the site as well as the operations of those sub-contractors. The JH defendants employed Mr Stalder and by reason of their responsibility for the site, it could be said they could have had a more direct role in the supervision of all the workers at the site. Her Honour also concluded that one of the Goldspring's' defendant had a more limited role in the circumstances of the offences than in the other, noting that the culpability of one defendant was confined to the defects in the excavator. The other Goldsprings defendant pleaded guilty to charges concerning the defective excavator and permitting it to be operated on the site in its defective state. In addition, there was a failure to ensure various administrative controls were implemented at the site, including ensuring a safety inspection of the excavator was performed, a failure to ensure that the excavator was operated safely on the site, a failure to ensure that a spotter or safety observer was assigned to observe the movements of the excavator and the ground workers and a failure to ensure that Mr Marshall was provided with a safety briefing before operating the excavator. 42Senior counsel for the present defendants submitted that the Court was now better informed, primarily because of the evidence of Mr Sharpin, as to the circumstances of the JH defendants. That evidence, however, did not call into question any of the matters relied upon by Backman J in assessing the relative culpability of the Goldsprings and JH defendants. Indeed, during the course of the hearing it was accepted that substantially the facts were the same in these proceedings as the facts agreed before Backman J. It is to be noted that her Honour accepted Mr Goldsprings' explanation that when G oldspring's and their operators attended JH sites they were generally supervised and directed by JH personnel on a day-to-day basis even though they remained employees of the Goldsprings companies who had ultimate control over those employees. It was an agreed fact that one of the Goldsprings companies 'relied entirely' upon JH for the provision of relevant safety controls, SWMS and the provision of supervision. 43Senior Counsel for the present defendants pointed to the fact that, in the Goldsprings matters and on the facts agreed in the present matters, it was clear that the Goldsprings corporate defendants and the operator, Mr Marshall, were aware of the defects in the excavator the Goldsprings defendants supplied the defective excavator to perform work on the day and Mr Marshall continued to operate that plant knowing of the defects and without taking any measures to overcome the risks of continued operation of the defective excavator. 44Counsel for the prosecutor drew attention to the following matters: the duties imposed on the defendants before the Court and the duties imposed on the Goldsprings defendants were co-extensive, non-delegable duties, namely, a duty to ensure, guarantee or secure safety. In those circumstances it was to be noted the broad contractual powers held by JH in relation to safety on the site and the obligations placed on the "principal contractor" appointed pursuant to cl 213 of the Regulations; the site was directly under the control of JH and JHR with JHR providing direct supervision via Mr Faux under the occupational health and safety umbrella of JH's occupational health and safety plan; the duty imposed on one of the Goldspring's defendants was narrower in scope and related to ensuring that the plant supplied was safe and without risk when properly used. Having regard to those matters the prosecutor supported her Honour's finding that the JH defendants bore a greater responsibility than the Goldsprings defendants in relation to this accident. 45The prosecutor also pointed out that these considerations arose not in the application of the principle of parity which did not apply: in the present matters as the defendants were not charged with the same offence. The principle of parity in sentencing applied in relation to a class of offenders across the range of a single offence and recognised the need for consistency in sentencing offenders charged with that same offence. It was accepted, however, that consistency in sentencing required consideration to be given to these issues even though the defendants were charged with different offences but importantly, have been charged in relation to the same workplace accident. Having considered the submissions, the Court is satisfied that on a proper assessment of the roles and obligations of these defendants, it may properly be concluded that the JH defendants bear a greater culpability than the Goldsprings defendants. That conclusion, however, is not to be taken to suggest that the JH defendants are significantly more culpable but rests on an assessment of the particular circumstances identified by Backman J and supported by the evidence in these proceedings. 46In relation to each defendant there are a number of subjective factors to take into account with many having equal application to them both. The prosecutor accepted that, in each case, there was an early plea of guilty even though these proceedings concerned a 2006 accident in relation to which proceedings were commenced in the Court in 2008. Both counsel assured the Court that these matters became the subject of closer consideration following the High Court's decision in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) ; [2010] HCA 1; (2010) 239 CLR 531 and after waiting for clarification from the superior courts, the prosecutor ultimately proceeded on a significantly Amended Application for Order that substantially reduced the counts. When this occurred each defendant entered pleas of guilty. Similar circumstances were accepted by her Honour, Backman J, in relation to the Goldsprings defendants and her Honour concluded that a 25 per cent discount for an early plea was warranted in relation to the those corporate defendants. In view of the assurances of counsel for both parties as to the substantially Amended Application for Order, the Court is satisfied that these were early pleas in each case and that each defendant should receive a 25 per cent discount in penalty. 47JHR is a first offender and entitled to the leniency that is attendant upon such status. That defendant has a significant workforce and has been involved in many large projects for over 23 years. Having regard to the nature of the construction work in which it is involved and the large number of employees it engages, it is to be regarded as having a good safety record. JH has been in operation for over 60 years and is a significantly larger employer than JHR. It also has been involved in numerous very large and prestigious projects over a long period of time. Although there are eight matters recorded against JH, they appear to relate substantially to incidents that arose in 1988 and 1989 and it has not come to adverse attention in the past 20 years. In all the circumstances that record speaks well of the defendant's attention to safety and also may be regarded as a good safety record. Importantly, both defendants co-operated with the WorkCover investigation and following the accident, both took steps to amend their safety procedures. It is clear from the evidence of Mr Sharpin that the Holland Group has taken responsibility for this accident, has accepted that the systems were defective on the day of the accident and have taken considerable steps to care for Mr Stalder since this horrific accident. Those actions and the evidence Mr Sharpin permit the Court to conclude that the defendants have shown contrition and remorse and that will be taken into account in mitigation of the penalty. The evidence also demonstrates the defendants to be good corporate citizens, engaged with the communities with which they work and supporting a variety of worthwhile and charitable causes. These matters will all be taken into account in fixing the ultimate penalty. 48The only significant difference between the two defendants, therefore, is the fact that JHR has no prior convictions and JH has a prior record already detailed. Because of a lack of records, the Court was unable to be informed of the nature of the earlier offences committed by JH but they were all dealt with by the Chief Industrial Magistrate and incurred low level penalties. There is, therefore, no evidence before the Court that the accident involving Mr Stalder and the risk to other employees was a repetition of conduct that might suggest that JH has continued to flout its obligations in relation to safety and is thus deserving of a much higher level of penalty. The question then arises as to how JH is to be penalised considering its different record in this sole aspect. While JH is open to a maximum penalty of $825,000, that factor alone will not necessarily lead to a significantly higher penalty being imposed upon it than imposed on JHR. John Holland Pty Ltd is a substantially larger company than JHR and has been involved in this dangerous industry of construction for just over 60 years compared with the 23 years of operation for JHR. The penalty imposed upon JH in those circumstances is not one that should reflect a mere arithmetic approach but requires a proper consideration of the appropriate penalty having regard to all the surrounding circumstances. That consideration satisfies the Court that JH in its particular role should be subjected to a higher penalty but it is appropriate that penalty reflect but a modest increase on that applicable to JHR. ORDERS 49For the reasons expressed above, the Court makes the following orders: (a) in relation to Matter No IRC 2050 of 2008 regarding John Holland Rail Pty Ltd: (i) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in IRC Matter No 2050 of 2008 in which the defendant entered a plea of guilty to the Amended Application for Order; (ii) the defendant is fined the sum of $120,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as further ordered by the Court. (b) in relation to Matter No IRC 2055 regarding John Holland Pty Ltd: (i) the defendant is found guilty of a breach of s (10(1) of the Occupational Health and Safety Act 2000 as particularised in IRC Matter No 2055 of 2008 in which the defendant entered a plea of guilty to the Amended Application for Order; (ii) the defendant is fined the sum of $135,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as further ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS (JOHN HOLLAND RAIL PTY LTD) 1. At all material the prosecutor was an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1) (c) of the said Act to institute proceedings in this matter. 2. The defendant, John Holland Rail Pty Ltd, is and was at all material times a corporation entitled to be prosecuted in and by its corporate name and style. 3. The defendant's registered office is situated at John Holland Group Pty Ltd, 70 Trenerry Crescent, Abbotsford in the State of Victoria. Background 4. John Holland Pty Ltd is and, at all material times, was a body corporate. 5. On 24 October 2005 the Australian Rail Track Corporation Ltd 754) ("ARTC") entered into a contract with John Holland Pty Ltd, namely Project Contract No. CW-NSW-29 Sandgate Rail Grade Separation Project, with respect to the construction of the Sandgate Rail Grade Separation at Sandgate in the State of New South Wales ("the principal contract"). 6. The subject construction site, known as the "Sandgate Grade Separation Project", was located on the Kooragang railway line(s), at about the T25 points, at Sandgate in the State of New South Wales ("the site"). 7. At all material times, in its capacity as the principal contractor, John Holland Pty Ltd controlled the Sandgate Rail Grade Separation Project site and the works performed thereon. 8. On 7 November 2006 the defendant, as the servant or agent of John Holland Pty Ltd, was carrying out "construction work", as defined in the Code of Practice for Moving Plant on Construction Sites 2004, on the site, including: track welding and related works on rail lines located within the site; and the spinning up and shaping of the ballast as part of the ongoing track works. 9. At all material times the defendant was an employer. 10. At all material times the defendant employed Caleb William Stalder to work at the site as a "track welder". 11. At all material times, the defendant employed Todd Faux to work at the site as a "track welder". 12. At all material times the defendant employed Edward Joseph Faux ("Mr Eddie Faux"). 13. On 7 November 2006 Mr Eddie Faux was assigned by the defendant to supervise construction works performed at the Sandgate Rail Grade Separation site, by or on its behalf, including but not limited to track welding and ballast work. 14. Goldspring's Earthmoving Pty Ltd (ACN 068 699 141) is and at all material times was a body corporate entitled to be prosecuted in and by its corporate name and style. 15. Peter Michael Goldspring is and at all material times was a director of Goldspring's Earthmoving Pty Ltd and involved in the day to day management of that company. 16. Fred Goldspring & Sons Pty Ltd (ACN 053 145 663) is and at all material times was a body corporate entitled to be prosecuted in and by its corporate name and style. 17. On 7 November 2006 Peter Michael Goldspring was a director of Fred Goldspring & Sons Pty Ltd and involved in the day to day management of that company. 18. On 7 November 2006 Fred Goldspring & Sons Pty Ltd carried on business hiring earthmoving plant & equipment. 19. On 7 November 2006 Fred Goldspring & Sons Ltd owned and/or controlled a Kobelco SK 60 Hi Rail excavator [Plant number GS002]. 20. On 7 November 2006 Goldspring's Earthmoving Pty Ltd employed Jade Marshall. 21. Goldspring's Earthmoving Pty Ltd hired out Jade Marshall to operate machines on hire from Fred Goldspring & Sons Pty Ltd, including but not limited to the Kobelco SK 60 Hi Rail excavator referred to above. The Incident 22. On the morning of 7 November 2006 an order was placed on behalf of the defendant with "Goldsprings" for the supply of an excavator together with an operator. 23. Following receipt of the order for the provision of an excavator, Fred Goldspring & Son Pty Ltd assigned a Kobelco SK 60 Hi Rail excavator to work at the site and Goldspring's Earthmoving Pty Ltd assigned its employee Jade Marshall to operate the excavator at the site as directed. 24. Marshall arrived at the site at about 9.30am on 7 November 2006. The Kobelco SK 60 Hi Rail excavator was delivered to the site shortly thereafter. 25. On arriving at the site Marshall moved the Kobelco SK 60 Hi Rail excavator into the site without attending at the site office. Marshall reported directly to Eddie Faux and was directed to "spin up the ballasts" so that the tamper could come along and tamp it down. 26. Marshall was not required to undertake a "pre-start" briefing with respect to the work to do on site. 27. Marshall did not perform a pre-start check on the Kobelco SK 60 Hi Rail excavator before he started work. Eddie Faux did not inspect the machine before Marshall commenced work on the site. 28. The Kobelco SK 60 Hi Rail excavator as delivered to the site was defective in the following regards: The machine was not fitted with operable warning light(s); The machine was not fitted with an operable audible reversing or "motion" alarm; The machine was not fitted with an operable horn; The machine was fitted with a cradle that was hard wired into the machine, but it was not fitted by Jade Marshall with a radio or walkie talkie for communications with ground controllers and/or ground workers; The machine was not fitted with externally mounted rear view mirrors; and The rear vision mirror mounted in the cabin of the machine gave restricted rear vision because the counter-weight, as located, blocked or restricted the view directly behind the cabin of the machine. 29. Despite the fact that Marshall did not do a pre-start check, Marshall was aware prior to starting work at the site that the machine was not fitted with any operable warning lights, any operable reversing or motion alarms and/or any communications devices. 30. No controls, such as a protection officer or spotter assigned to maintain safe distances between ground workers and/or the erection of track blocks/barrier/demarcation markers, were put in place prior to Mr Marshall commencing Hi-Rail operations with the Kobelco SK 60 Hi Rail excavator. 31. Mr Eddie Faux directed Mr Marshall to spin up the ballasts on the two tracks which were undergoing work on the day. 32. Mr Eddie Faux also directed Mr Marshall to operate from the northern end of the subject site so that Mr Marshall was then driving the machine in a southerly direction. 33. Mr Marshall, whilst "spinning up the ballast", was operating the Kobelco SK 60 Hi Rail excavator in reverse travelling from the northern end of the site on the subject rail lines towards the southern end of the site. 34. Whilst Mr Eddie Faux had assigned Mr Marshall to "spin up the ballasts" operating in a southerly direction from the northern end of the site, Mr Faux had assigned 3 teams of welders, including a team consisting of Mr Stalder and Mr Todd Faux, to perform track welds and related work on the same rail lines working in a northerly direction from the southern end of the site. 35. Mr Marshall commenced work on the down line and later, prior to the subject incident, Mr Marshall switched to spinning up the ballasts on the up line. 36. At about 1pm Mr Stalder was working in the most northerly position of the 3 welding crews working on the up line and in the process of completing a cut through the eastern rail line when he was struck by the rail mounted Kobelco SK 60 Hi Rail excavator; the rear wheel of the excavator severing Mr Stalder's left arm just below the elbow. 37. Following the subject incident Mr Stalder underwent surgery to reattach his severed limb. Whilst the surgery for reattachment of his limb was successful, Mr Stalder sustained irreparable ulna nerve damage resulting in total loss of feeling in the middle finger, ring finger, little finger and ulna aspect of his left hand. 38. Mr Stalder returned to work with John Holland Rail Pty Ltd in mid-2007 and was retrained as a welding inspector. The system of work 39. The risks to pedestrians/ground workers associated with the movement of mobile plant on construction sites, particularly reversing vehicles and even more particularly, mobile plant with restricted visibility in the direction of travel whilst reversing, are both obvious and were well known in industry prior to the subject incident. 40. The WorkCover Code of Practice Moving Plant on Construction Site ("the Code of Practice") came into effect on 16 January 2004. The Code of Practice was in operation as at the date of the subject incident and the Code of Practice applied to the movement of mobile plant such as the Kobelco SK 60 Hi Rail excavator involved in the subject incident within the site. "1.2 Purpose: This Code of Practice provides practical guidance to prevent injury to people where moving plant is used in construction sites. 1.3 Scope: This Code of Practice applies to the use of moving plant at all construction sites and places of work in NSW, except mines. Moving Plant includes plant that: (a) Moves either under its own power, or is pulled or pushed by other powered moving plant, (b) Moves on or around the construction site, enter or leaves the site, moves past the site, (c) Includes road vehicles (such as tip trucks). This does not cover the load shifting operation of plant (such as excavators, cranes, hoists and forklifts) to the extent covered by the following approved Industry Codes of Practice: Code of Practice Excavation (March 2000) AS2359.2 - 1985 SAA Industrial Truck Code - Part II; Operation (October 1985) (this covers forklift use) AS2550 of Set of Standards covering the safe use of cranes of all types (including hoists, elevating work platforms and building maintenance units, but not forklift trucks) Note: the above 2 Australian Standards were gazetted as approved industry codes of practice on 21 September, 2001 in the Code of Practice Technical Guidance." 41. Further, pursuant to the definition of "Construction Work" set out in Chapter 1 Section 7.1, "Construction Work" within the meaning of the Code of Practice includes several engineering works such as the construction, structural alteration, repair, maintenance etc. of "railways". 42. The risks of injury to pedestrian/ground workers within "construction sites" associated with the movement of mobile plant are discussed at length in the Code of Practice and particular note is made to the risks to pedestrian and ground workers within construction sites associated with reversing plant (See: Chapter 3 page 10). In Chapter 3.3.3 controls for pedestrians near moving plant is observed that, where practicable, plant should always be operated in a forward direction and the use of a spotter is identified in the context of ensuring that no persons are at risk before plant reverses. 43. Further, Chapter 3 Section 3.2 of the Code of Practice states in part that: "Vehicle movement procedures should be developed based on the risk assessment and should be updated each time conditions on the site change in a way that may affect the health and safety of persons at the workplace. It should also include an assessment of the visibility of plant and traffic from all areas of the worksite. The use of specific measures to eliminate or control identified risks should be done on the basis of the risk assessment. In particular, consider the following: Isolating vehicles and plant used in and around the site and work area from persons on the site or work area. For example, vehicle or persons may be guided around or pass the work area; Planning for the direction that plant moves, so that the visibility of operators is not restricted; Using spotters/safety observers to control traffic movement." 44. At all material times the defendant was specifically aware of the risks associated with the movement of plant in and about construction sites. 45. The defendant had developed a Worksite Protection Plan to be used in conjunction with a site safety system that involved: detailed job safety analyses with respect to the performance of tracklaying and track work (including assembling turnouts and catch-points) for the Sandgate project; detailed safe work method statements (including a safe work method statement developed with respect to the subject shutdown including Worksite Protection); and daily Pre-Work Rail Briefings. 46. The defendant's relevant safe working systems and methodology recognised the need for all mobile plant, including excavators, to be fitted with: Rotating beacons; Motion alarms; and UHF radio communication equipment. 47. Further, the defendant's systems recognised the need for communications to be maintained between mobile plant operators and ground workers ("ground level labour"). 48. The defendant's systems also recognise the need for plant to undergo "pre-start checks" for faults and also to ensure that all such plant was fitted with rotating beacons and motion alarms. 49. The defendant's systems identified the need to maintain a safe working distance (of not less than 5 metres) between track machines, such as the Kobelco SK 60 Hi Rail excavator, and track welders such as Mr Stalder and Mr Todd Faux, including the erection of appropriate barricades and bunting to prevent inadvertent access into areas in which track machines, such as the SK 60 Hi Rail excavator, were operating. 50. The safety controls set out above were to be the subject of a daily pre-work briefing. 51. However, as outlined above, none of the precautions set out in the defendant's occupational health & safety management system were enforced on the day of the subject incident with respect to the operations on site of the Kobelco SK 60 Hi Rail excavator and in particular, the operation of the Kobelco SK 60 Hi Rail Excavator in proximity to Mr Stalder and Mr Todd Faux. The Role of John Holland Pty Ltd 52. John Holland Pty Ltd was the principal contractor on site on 7 November 2006. 53. Pursuant to its contract with ARTC, John Holland Pty Ltd undertook to comply with the National Code of Practice for the Construction Industry and undertook to include a requirement to comply with that code in all sub-contracts. 54. No formal, written subcontract was entered into between John Holland Pty Ltd and the defendant with respect to the works to be performed by the defendant at the subject site, including the works being performed by and on behalf of the defendant at the time of the subject incident. 55. No formal, written sub-contract was entered into by John Holland Pty Ltd, or the defendant with either Goldspring's Earthmoving Pty Ltd, or Fred Goldspring & Sons Pty Ltd, with respect to the supply of plant and/or labour at the site. 56. Pursuant to clause 3 of Schedule 4 to the Sandgate Rail Grade Separation Project Contract, Project Contract No CW - NSW - 29, John Holland Pty Ltd was to develop and enforce both a Project OHS&R Management Plan and a Site Specific Management Plan. 57. Further, John Holland Pty Ltd was contracted to ensure compliance by sub-contractors with its OHS&R Project Management Plan and its Site Specific Management Plan, including ensuring that any sub-contractor had in place and was complying with safe work method statements that satisfied the requirements of the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001. [See: Clause 3 to Schedule 4 of the Contract.] 58. Further, pursuant to clause 4(a) of Schedule 4 to the Contract, John Holland Pty Ltd was to conduct pre-work safety briefings for all its employees and subcontractors on site, daily at the commencement of each shift and when work conditions change. Pursuant to clause 4(a) of the Contract, John Holland Pty Ltd was to discuss with all its employees and subcontractors on site any site-specific hazards and the Safe Work Methods associated with the work activities scheduled during the day or shift and inform all its employees and subcontractors on site of the preventative measures and procedures that were to be adopted to control or eliminate those hazards. 59. None of the steps which John Holland Pty Ltd was required to take with respect to ensuring safety compliance by its subcontractors, namely the defendant, Goldspring's Earthmoving Pty Ltd and Fred Goldspring Pty Ltd were adequately or effectively taken with respect to the operation of the Kobelco SK 60 Hi Rail excavator on site on 7 November 2006 and in particular, the operation of the Kobelco SK 60 Hi Rail Excavator in proximity to ground-workers including Mr Stalder and Mr Todd Faux. The Role of Mr Eddie Faux 60. Mr Eddie Faux was the supervisor assigned by the defendant to oversee and supervise the works being performed by the track welders at the site and the ballast work being performed by Mr Marshall. 61. Mr Faux was aware that Mr Marshall attended at the site on the morning of the subject incident without attending at the site office to "sign on". 62. Mr Faux was also aware that Mr Marshall did not attend at the pre-work briefing that was held prior to the commencement of work on the morning of the subject incident. 63. Mr Faux was aware that the defendant was supposed to provide Mr Marshall with a pre-work briefing prior to commencing work, including a briefing with respect to the safe work methods with which Mr Marshall was required to comply and all safety measures put in place to control risks associated with the work Mr Marshall was to perform that day. 64. However Mr Faux required Mr Marshall to commence work without a pre-start briefing. No additional safety briefing was provided to the track welders, including Mr Stalder and Mr Todd, who were working on or about the line on which Mr Marshall was also operating the Kobelco SK 60 Hi Rail excavator. No safety or preventative measures were put in place to maintain a safe working distance between the Kobelco SK 60 Hi Rail excavator and ground-workers, including but not limited to track welders such as Mr Stalder and Mr Todd Faux. The Role of Goldspring's Earthmoving Pty Ltd, Fred Goldspring & Sons Pty Ltd and Peter Goldspring 65. On 27 September 2006 Peter Goldspring completed an Australian Rail Track Corporation Ltd (ARTC) TOC Waiver form Ref No. - 1422 with respect to the operation by Goldspring's Earthmoving Pty Ltd of a Kobelco SK 60 Hydraulic Excavator within worksites on the ARTC network. 66. The TOC Waiver form completed by Mr Goldspring identifies the owner of the Kobelco SK 60 Hydraulic Excavator as Fred Goldspring's & Sons Pty Ltd. 67. The TOC waiver form completed by Mr Goldspring also makes reference to "Goldspring's Earthmoving" and Goldspring's Earthmoving Pty Ltd under the title "Company Name". 68. In completing the TOC Waiver form, Mr Goldspring indicated that the Kobelco SK 60 Hi Rail excavator was fitted with the following relevant equipment: Flashing orange light; and Horn. Mr Goldspring also asserted that the machine complied with the relevant ARTC standards. 69. Further to the above, in his ROI on 30 January 2007 Mr Goldspring conceded that he was aware of the following defects in the Kobelco SK 60 Hi Rail excavator prior to the subject incident: The machine was not fitted with a compliance plate; The machine was not fitted with externally mounted rear vision mirrors; The machine was not fitted with an audible motion alarm and/or an audible reversing alarm; The bulb in the rotating beacon fitted on the machine did not work; The machine was not fitted with an operable horn. 70. The vision available to the operator by using the rear-vision mirror, which was centrally mounted inside the operator's cabin, was restricted by the counterweight for the excavator such that the driver would have been unable to see a person on the ground to the rear of the excavator in the position occupied by Mr Stalder at the time of the subject incident. 71. In August 2006 Marshall was trained, and obtained certification, as a competent "Track Machine Operator" (TMO) from Southern Cross Rail Training. The training which Mr Marshall received from Southern Cross Rail Training as a TMO was limited to the operation of a truck fitted with a Hi Rail system. 72. Jade Marshall had worked at the site previously and had completed a site induction. 73. Prior to 7 November 2006 Jade Marshall had operated excavators and dump trucks on the site. 74. At all material times, neither Fred Goldspring & Sons, nor Goldspring's Earthmoving, were in possession of an operator's manual for the Kobelco SK 60 Hi Rail Excavator. 75. Prior to the incident Mr Marshall's training with respect to the Kobelco SK 60 Hi Rail excavator was limited to a demonstration of its excavator functions in the Goldspring's yard. That demonstration was provided to Mr Marshall by Mr Peter Goldspring sometime prior to the subject incident. 76. The day of the subject incident was the first day on which Mr Marshall operated the Kobelco SK 60 Hi Rail excavator in Hi Rail mode. 77. Goldsprings Earthmoving did not provide Jade Marshall with adequate supervision while he was working at the Sandgate Rail Grade Separation Project site on the day of the incident. 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: 12 September 2011