Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hinton v Waterway Constructions Maintenance Pty Ltd [2011] NSWIRComm 132 Hearing dates: 19 September 2011 Decision date: 30 September 2011 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: (1) The defendant is convicted of the offence. (2) The defendant is fined the sum of $130,000 with a moiety to the prosecutor. (3) The defendant shall pay the prosecutor's costs as agreed or as assessed. Failing agreement, costs may be referred to the Registrar for assessment. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecution for breach of s 8(2) of Occupational Health and Safety Act 2000 - Guilty plea - Fatality - Truck driver killed when hit by arm of excavator during loading of truck in defendant's premises - Failure to ensure that systems of work for persons who were not its employees whilst undertaking tasks associated with the loading and unloading of trucks at the defendant's premises were safe and without risks to health - Failure to provide adequate information, instruction and training to persons who were not its employees necessary to ensure their health and safety whilst undertaking tasks associated with the loading and unloading of trucks in the defendant's premises - Sentencing considerations - Objective seriousness - Subjective factors - Penalty imposed - Costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Capral Aluminum Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 Inspector Williams v H P Woods (Holding) Pty Ltd [2011] NSWIRComm 114 Category: Principal judgment Parties: Inspector Jamie Hinton (Prosecutor) Waterway Constructions Maintenance Pty Ltd (Defendant) Representation: C Magee of counsel (Prosecutor) B Hodgkinson SC (Defendant) WorkCover Authority of New South Wales (Prosecutor) Pigott Stinson Lawyers (Defendant) File Number(s): IRC 1493 of 2010 Judgment 1Mr Jason Gorken operated a small transport business known as Tilttime Pty Ltd. In operating his business, Mr Gorken drove a Hino truck. Tilttime was contracted from time to time by Waterway Constructions Maintenance Pty Ltd ("the defendant") to provide transport services. The defendant operated out of premises in James Craig Road at Rozelle and provided maritime construction services and repair and maintenance of commercial wharves and jetties. 2On 22 May 2009, Tilttime was contracted by the defendant to deliver a steel beam to the Rozelle premises (referred to as the "Yard") and pick up a number of items from the premises and deliver them to another location. The steel beam was unloaded from Mr Gorken's truck and a flat bottomed boat (a punt) was loaded onto the truck using a lifting attachment referred to as a "grab" fitted to the main boom of the articulated arm of a hydraulic excavator. Attached to a lifting point on the grab was a metal lifting chain and hook. 3Other items were to be loaded onto the truck using a forklift. An employee of the defendant, Daniele Marmora (Dogman), went to obtain the forklift. According to Mr Marmora, it was agreed that while he went to get the forklift, Mr Gorken would wait on the back of the truck inside the punt so he could assist with the placing of the items inside the punt. 4Michael Miller, employed by the defendant as a Yardman, commenced to move the excavator away from the truck. Mr Miller proceeded to lift the grab of the excavator off the ground and started tracking the excavator away from the truck. Mr Miller then observed Mr Gorken pinned against the rear passenger side corner of the truck by the grab of the excavator. Mr Miller immediately slewed the articulated arm of the excavator away from Mr Gorken, placed the grab on the ground, turned off the excavator and went to render assistance to Mr Gorken. 5An ambulance was called and Mr Gorken was conveyed to hospital. He had sustained severe injuries including severe crush injuries to the right side of his chest, abdomen, liver and right diaphragm, fractures of three ribs and extensive tearing and damage of his chest wall. A short time after arriving at hospital Mr Gorken died from his injuries. 6Arising out of what occurred on 22 May 2009, Inspector Jamie Hinton, of the WorkCover Authority of New South Wales, prosecuted the defendant for a contravention of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). Section 8(2) provides: (2) Others at workplace An employer must, so far as is reasonably practicable, ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 7In the charge it was alleged that the defendant by its acts and omissions failed "to ensure that people (other than the defendant's employees), and in particular Jason Gorken (who was not an employee of the defendant) , was not exposed to risks to his health or safety arising from the conduct of its undertaking while they were at its place of work contrary to section 8(2) of the Act ." 8The particulars of the charge were in the following terms: Particulars of risk A. Persons who were not employees of the defendant were exposed to the risk of injury whilst undertaking tasks associated with the loading and unloading of trucks at the Yard of the Premises of suffering crush and bodily injuries resulting from being struck or crushed by moving plant (being an Excavator) during the unloading and loading operations. Particulars of Defendant's failings in relation to systems of work B. The defendant failed to ensure that systems of work for persons who were not its employees whilst undertaking tasks associated with the loading and unloading trucks at the Yard of the Premises were safe and without risks to health. Measures the Defendant should have taken but failed to take C. The defendant should have taken but failed to take the following measures in order to ensure a safe system of work for the loading and unloading trucks at the Yard of the Premises : a. developing and enforcing an adequate system of monitoring and supervision of contractor truck drivers who entered the Yard at Premises; b. ensuring compliance by contractor truck drivers with the document entitled 'Job Safety Analysis for loading and unloading of trucks in the Yard' at the Premises; c. failing to develop and provide a Safe Work Procedure for loading and unloading of trucks for contractor truck drivers who wished to assist in the loading of their trucks at the Yard of the Premises; d. failing to develop and provide a specific induction and training for contractor truck drivers in respect to the undertaking of loading and unloading of trucks in the Yard at the Premises; Particulars of the Defendant's failings in relation to information, instruction and training D. The defendant failed to provide adequate information, instruction and training to persons who were not its employees necessary to ensure their health and safety whilst undertaking tasks associated with the loading and unloading of trucks in the Yard at the Premises. Measures the Defendant should have taken and failed to take E. The defendant should have taken but failed to take the following measures in order to ensure the provision of adequate information, instruction and training: a. provided specific induction and training to contractor truck drivers who were going to perform work in the Yard at the Premises, which included being trained in the contents of the document entitled 'Job Safety Analysis - Yard.' As a result of the acts and omissions listed above, Jason Gorken 's safety was placed at risk of suffering crush and bodily injuries from being struck or crushed by moving plant during unloading and loading operations in the Yard at the Premises. The injuries sustained by Jason Gorken were a manifestation of that risk. 9The defendant pleaded guilty to the charge. This judgment deals with sentence. Agreed statement of facts 10The prosecutor tendered an agreed statement of facts. In addition to describing the circumstances that led to Mr Gorken's death, which I have summarised above, the statement described the systems of work in place prior to the incident. This included a requirement that subcontractors who were going to perform work in the Yard were required to undertake a Yard induction, which included being taken through relevant parts of a Job Safety Analysis entitled "Job Safety Analysis - Yard (Consolidated) JSA No. LIB - 042-2" ("the Yard JSA") and other applicable Job Safety Analyses and Safe Work Method Statements. However, the defendant's system did not require contractor truck drivers or courier drivers to undergo a Yard induction or be given or trained in the Yard JSA. 11According to the agreed facts, the defendant's system provided that a contractor truck driver coming to the Yard at or prior to the incident would receive information about the Yard Safety Rules and information and directions concerning the task to be carried out. Whilst in the Yard the defendant's system provided for contractor truck drivers to be supervised by the defendant's Yard personnel as to where to position their trucks and throughout the loading and unloading operations. The agreed statement continued: 49. The defendant's rationale for not requiring contractor truck drivers to undergo a Yard induction was that contractor truck drivers were not carrying out work in the Yard apart from their own activities of securing or releasing the load on their truck and, throughout loading and unloading operations contractor truck drivers were directly supervised by the defendant's Yard personnel. 50. The defendant's system of work provided that the loading and unloading of trucks was to be carried out by the defendant's personnel who held certificates of competency for the tasks to be performed and plant to be used and had been trained in all applicable Job Safety Analyses and Safe Work Method Statements including the Yard JSA. 51. There is no record of Mr. Gorken undergoing a Yard Induction or signing the Yard JSA. 52. At the date of the Incident, the defendant also had in place a Job Safety Analysis entitled "Job Safety Analysis - Loading and Unloading of Trucks 17 March 2004 - (Rev.C) No. LIB019-C" (the Loading and Unloading JSA). 53. The defendant's system at the date of the Incident did not require contractor truck drivers who attended the Yard to be given training in the Loading and Unloading JSA in the Yard for the reasons specified in paragraph 49 above. 54. There is no record of Mr. Gorken signing the Loading and Unloading JSA in the Yard. However, on 27 May 2008, on a work site in Port Kembla, Mr Gorken signed a Job Safety and Environmental Analysis entitled "Job Safety & Environmental Analysis Loading and Unloading of Trucks" which had essentially the same content as the Loading and Unloading JSA that was in place at the Yard. 55. The Loading and Unloading JSA provided, inter alia, that: (a) truck drivers who were not trained as either a dogman, rigger or crane driver were not to be on their vehicle during loading or unloading. The defendant held no knowledge whether Mr Gorken held any of the specified qualifications; (b) the truck driver must stand in a safe position where he or she can see the load being lifted and loaded onto the truck; (c) the truck driver must always remain in view of the crane/excavator operator and that the operator should cease loading operations if the whereabouts of the truck driver were unknown; (d) it is the truck driver's responsibility to ensure that the load complies with the relevant local and state legislation including the requirements of the Roads and Traffic Authority of NSW and that the truck driver should be aware of the truck's load and towing tonnage capacities and was to ensure that these are not exceeded; (e) the truck driver must inspect the load for any possible movement prior to releasing securing chains, slings or fasteners; (f) the truck driver should assess the serviceability of securing chains and their attachments and replace the equipment if any of the conditions specified in the Loading and Unloading JSA are found. 56. At the date of the Incident, the defendant also had in place a Job Safety Analysis entitled "Job Safety Analysis - Caterpillar Excavator 6 February 2004 - (Rev. F) No. LIB004-REV F". This document identified, inter alia, the risk of crush injuries to persons resulting from Excavator operations in established areas or from plant failure. 12It was agreed that following the incident, the defendant undertook a number of steps to review safety at the Yard including reviewing its safety management system. In this respect, the defendant modified its system for truck drivers coming to the Yard including developing a new Safe Work Procedure entitled 'Safe Work Procedure for Loading and Unloading of Trucks' (the Safe Work Procedure). According to the agreed facts the Safe Work Procedure provides "a clear and easy to follow set of controls to be put in place and followed to eliminate the risk of crush injuries and falls from a height for truck drivers and the defendant's staff while loading and unloading trucks at the Yard." 13It was also agreed that the defendant now requires every truck driver who undertakes loading or unloading operations in the Yard or on work sites, other than courier drivers who deliver parcels to the Yard office or a site office, to be inducted into the Safe Work Procedure. Further that the defendant also "made changes to the Excavator to improve its safe operation by installing a rear vision camera and providing markings to indicate the orientation of the tracks." 14It was noted the defendant co-operated with the WorkCover Authority during its investigations into the incident. It was also noted the defendant has no prior convictions. Evidence of the prosecutor 15In addition to tendering the Agreed Statement of Facts, the prosecutor also tendered and relied on the following material: (a) a statement of prior convictions regarding the defendant, showing no prior convictions; (b) a factual inspection report of Inspector Phillip Estreich dated 4 June 2009; (c) 16 photographs of the site taken by Inspector Hinton on 22 May 2009 and by Inspector Estreich on 2 June 2009; (d) 36 photographs taken at the site by Inspector Estreich on 25 May 2009; (e) Waterway Constructions Job Safety Analysis LIB-042-2 for Yard Consolidated Activities dated 14 March 2006; (f) Waterway Constructions Job Safety Analysis LIB004 (Rev F) for General Operation of Caterpillar Excavator dated 6 February 2004; (g) Waterway Constructions Job Safety Analysis (REV C) No LIB019-C for Loading and Unloading of Trucks dated 17 March 2004; (h) Waterway Constructions Job Safety and Environmental Analysis 1341 for Loading and Unloading of Trucks for Port Kembla dated 28 February 2008; (i) Waterway Constructions Group Sydney Yard Induction Rev 5 dated April 2009; (j) Waterway Constructions Group Safe Work Procedure Loading and Unloading of Trucks Rev 3 dated June 2009; (k) Waterway Constructions Safe Work Method Statement 004-REV-C for General Operation of Caterpillar Excavator dated September 2009; (l) Waterway Constructions Safe Work Method Statement 042N Rev-B for Yard Consolidated Activities for Gate 1, James Craig Road Rozelle dated 2 September 2009 Evidence of the defendant 16The defendant's evidence consisted of an extensive affidavit of Mr Malcolm William Hiley and some 30 exhibits thereto. Mr Hiley was a Director of the defendant and General Manager of the Waterway Constructions Group of companies ("the Group") of which the defendant was a member. Mr Hiley was not required for cross-examination. 17In his affidavit, Mr Hiley deposed to the following matters: (a) The Group of companies to which the defendant belongs currently employs 116 people and has grown to be one of the largest specialist maritime contractors on the eastern seaboard. (b) The Group provides wharf maintenance and repair services to the NSW Maritime Authority for its facilities in Sydney Harbour and has undertaken large-scale maritime construction projects. (c) The defendant is a preferred maintenance and repair contractor to the Sydney Ports Corporation, Sydney Ferries, the Sydney Harbour Foreshore Authority, the Sydney Harbour Federation Trust, the National Parks & Wildlife Service and Defence Maintenance Maritime. (d) On 10 June 2010 the issued shares in Waterways Services (the predecessor to Waterways Construction) were sold to Keller Australia Pty Limited which is a wholly owned subsidiary of Keller Group PLC, a UK specialist foundation and ground engineering contracting company. (e) Initiatives taken by the Group prior to what occurred on 22 May 2009 in relation to occupational health and safety included: (i) in 1996 The Change Network, a registered training organisation, was retained to provide occupational health and safety training to Group personnel, including Supervisors and management personnel; (ii) in 1998, an occupational health and safety consultant who specialised in the construction industry was retained to assist Waterway Constructions develop an Occupational Health and Safety Management System that was geared to the Group's activities. In June 1999 the system was accredited by the Department of Public Works and Services Construction Policy Steering Committee as addressing the requirements of the New South Wales Government OHS&R Management Systems Guidelines 3rd Edition; (iii) in about 1998 the Group commenced preparing project-specific occupational health and safety management plans for some projects and since 2001 the Group has prepared safety management plans, which are called "Project Plans", for projects that have had a contract value of more than $250,000.00. The plans, which are based on the Group's occupational health and safety management system, include: an assessment of the safety requirements of each project to enable the implementation of appropriate safe work procedures; site-specific induction training for site personnel; preparing job safety analyses or safe work method statements for the tasks involved in each project; undertaking ongoing hazard inspections throughout the duration of each project; checking the skills and qualifications of site personnel; providing appropriate personal protection equipment to site personnel. (iv) from 1998 to about 2001, project-specific JSAs were prepared for all major projects that were undertaken by the Group which involved preparing a set of JSAs for the activities that were involved with each project; (v) in 1999 The Change Network was retained to develop an occupational health and safety induction training course for Group personnel which addressed issues that were specific to the maritime construction environment; (vi) since 1999 the Group has employed a QA/Safety & Systems Manager and since July 2008 the Group has also employed a Safety Officer to assist the Safety & Systems Manager; (vii) in May 1999 a Safety Committee was established for the Group's operations in New South Wales; (viii) in about 1999 Yard Safety Rules were developed for the Yard which are prominently displayed at the Yard; (ix) in about 2001, the Group commenced the preparation of a set of JSAs covering standard activities and plant and equipment for use on projects; (x) in 2002 the Group participated in the WorkCover Premium Discount Scheme which required the Group to satisfy a set of safety related criteria that were determined by WorkCover. Following audits in February 2002, July 2002 and May 2003, the Group qualified for the maximum premium discounts that were available under the Scheme; (xi) since 2003 weekly Supervisors Meetings have been held, since 2004 six monthly Management Review Meetings of the Group's integrated business management system have been held and since 2006, monthly or bi-monthly Management Meetings, six monthly Leading Hands Meetings and six monthly Staff Meetings have been held all of which include discussion of occupational health and safety issues; (xii) in 2004 the Group commenced the process of obtaining certification of its quality, occupational health and safety and environmental management systems to the relevant Australian and international Standards. As part of this process, the management systems were integrated into a single integrated management system called the "Integrated Business Management System". Certification of the management systems to the relevant Standards was obtained in 2005 and has been maintained to the present time; (xiii) since the Group's quality, occupational health and safety and environmental management systems achieved certification to the relevant Australian and international Standards in 2005, external audits of the Group have been undertaken by SAI Global every six months to check that the Group is complying with both the Standards and its internal procedures; (xiv) since 2004 periodic internal audits of project sites, Group offices, yards and barges have been undertaken by the Safety & Systems Manager to ensure compliance with applicable management plans and procedures with respect to safety, quality and environmental management; (xv) since about 2004 toolbox talks have been held at Group work sites; (xvi) since November 2005 the Group has subscribed to a legislation tracking service which provides notification of new legislation and amendments to existing legislation that is relevant to the Group's activities including occupational health and safety legislation; (xvii) since the Group commenced operations, it has provided extensive external training to personnel as appropriate. In addition, since February 2006 in-house training sessions, which cover relevant topics, have been held for all Group personnel three times a year. (f) Details were provided in relation to the Group's Integrated Business Management System, site specific occupational health and safety management plans, job safety analyses and safe work method statements, site-specific safe work method statements, site inductions and training, site inspections and audits, toolbox talks, external audits, training, New South Wales Safety Committee and other consultative processes. (g) A description of the James Craig Road Yard. The Yard is the base for the maintenance and repair activities that are undertaken by the defendant. The maintenance work teams, all of which are based at the Yard, mostly meet at the Yard each morning to collect the tools and equipment that they will require for the jobs they will be undertaking during the day and are then transported to the various work sites by truck or boat. This enables the Maintenance Works Supervisor to allocate workers where they are needed including to attend to any urgent jobs that may have come in overnight. (h) Following the retirement, in September 2010, of James Matthews, who was the Storeman at the date of the incident, the organisational structure of the Yard was reviewed and the positions of Storeman and Yardman, both of which had reported to the Maintenance Works Supervisor, were replaced by a Yard Foreman who is now responsible for supervision of the Yard. The person who has been appointed Yard Foreman, Daniele Marmora, is required to liaise with both the Maintenance Works Supervisor and the Plant Manager but reports to the New South Wales State Manager. Since his appointment as Yard Foreman, Waterway Maintenance has employed Mr Marmora. The changes to the organisational structure of the Yard were made, in part, to ensure that there is clear and continuous responsibility for supervision of the receipt, loading, unloading, handling and storage of materials and plant and equipment in the Yard. (i) Since before the incident on 22 May 2009 it had been the established practice of the Group that all new Group personnel in New South Wales undergo an induction before commencing work at any project site, at the Yard or at the Group's head office at Victoria Road Rozelle. Details of the induction processes were provided. (j) The procedure that was in place at the date of the incident and which is currently in place for inducting persons, other than Group personnel and contractor truck drivers, into the Yard was explained in detail. (k) Prior to the incident on 22 May 2009 it was not Group practice to induct contractor truck drivers who transported materials or equipment to or from the Yard or project sites into the Yard or project sites or require contractor truck drivers to sign the Yard Visitors Induction and Register or any of the Group's SWMSs (or JSAs) because, while they were in the Yard or at a project site for a loading or unloading operation, they were always under the direct supervision and control of the Group personnel who had been assigned to undertake the loading or unloading operation, such as an excavator or crane operator and dogman, each of whom had been inducted into the Yard or project site and all applicable SWMSs. (l) Although contractor truck drivers were not inducted into the Yard or project sites, they were required to wear appropriate personal protection equipment including hard hat, high visibility vest and safety boots during any loading and unloading operations at the Yard or at project sites and comply with the Yard Safety Rules and any project site safety rules. (m) A provision in the Loading and Unloading of Trucks JSA regarding truck drivers being on their vehicles was included to ensure that truck drivers did not become involved in dogging operations, such as load slinging, if they were not appropriately qualified and was not intended to prevent truck drivers assisting Group personnel position loads on their trucks. Truck drivers are responsible for the load and its positioning on their truck once they proceed onto a public street. (n) Consistent with the Group's practice prior to the incident not to induct contractor truck drivers into the Yard, no record has been located to indicate that Mr Gorken was inducted into the Yard or signed the Yard Visitors Induction and Register. However, a search of Group records established that on 27 May 2008 Mr Gorken signed off on a Loading and Unloading of Trucks JSEA in the course of providing transport services to a Group project site at Port Kembla. (o) Tilttime was one of a number of preferred transport contractors that were used by members of the Group to transport items such as site sheds, boats, materials and plant and equipment to and from work sites and other. Mr Gorken was popular with the Supervisors because he had a reputation of being a reliable and careful operator. (p) A description of what occurred on the morning of the incident. During the afternoon Mr Hiley commenced an investigation of the incident by speaking to the Group personnel who were present in the Yard at the time of the Accident. The excavator maintenance records were also checked and found to be up to date. On 25 May 2009, the excavator controls, windscreen wiper, amber flashing light and movement alarm were checked in the presence of WorkCover Inspectors and found to be in working order. (q) Both Michael Miller and Daniele Marmora held the appropriate certificates of competency and licences to undertake the tasks that they were performing at the time of the incident. At the date of the incident Michael Miller was the Deputy Chairman of the Safety Committee he having been elected to that position at the Safety Committee meeting that was held on 18 February 2009. (r) Despite Mr Hiley's investigation he had not been able to ascertain: (i) why Mr Gorken decided to get down from the tray of Tilttime's truck and place himself between the grab of the excavator and the rear of the truck at the same time that the excavator operator, Michael Miller, moved the excavator; (ii) why the excavator grab, which had been placed on the ground some distance from the rear of Tilttime's truck after it was unhooked from the work boat, moved towards the rear of the truck when Mr Miller tracked the excavator away from the truck. (s) Mr Hiley believed that if Mr Gorken had remained in the work boat that had been loaded onto the truck as had been discussed with Mr Marmora (according to Mr Marmora's WorkCover witness statement), the incident would not have occurred. (t) Apart from the incident on 22 May 2009 there have been no incidents, either before or since the incident, involving any person suffering an injury as a consequence of being struck by the excavator during loading or unloading operations or during movement of the excavator nor, to Mr Hiley's knowledge, have there been any near misses involving the excavator. (u) The defendant complied with Improvement and Prohibition Notices issued by the WorkCover Authority. (v) Action taken by the defendant following the incident included: (i) a Notice to Staff containing an explanation of the incident and details of counselling services that were available to personnel was issued to all Group personnel; (ii) arranging for a counsellor to attend the Yard on the day of the incident to talk to Yard personnel, counselling was made available to personnel on an ongoing basis; (iii) meetings of the Safety Committee took place on 3, 9 and 17 June 2009 to enable the Safety Committee to undertake a review of the Yard risk assessment. The meetings on 3 and 9 June 2009 were held at the Yard to enable the members of the Safety Committee to undertake a review of all hazards at the site; (iv) a review of the procedures relating to the loading and unloading of trucks and the induction of contractor truck drivers was undertaken by the Safety & Systems Manager and Mr Hiley which included consultation with the transport companies that are regularly used by the Group and relevant Group personnel. The review resulted in the development of an induction procedure for contractor truck drivers, which requires all contractor truck drivers to review and sign off on the Loading and Unloading SWP; (v) since the introduction of the Loading and Unloading SWP in June 2009, every contractor truck driver who enters the Yard or a project site to deliver or collect materials or equipment, other than courier drivers delivering parcels to the Yard office or to a site office, is required to be inducted to the Loading and Unloading SWP. Signed copies of the SWP are retained at the Yard or filed in the relevant Project Records Folder if they are signed at a project site; (vi) the operation of the excavator was also reviewed. As a result of this review the following action was taken: the operating skills of all of the existing excavator operators, other than Michael Miller who was on sick leave, were reassessed by an external assessor; the excavator JSA was reviewed and replaced by a SWMS that all excavator operators, other than Michael Miller, were inducted into on 2 and 3 June 2009; cameras were fitted to both the rear and right side of the excavator that are connected to a monitor in the excavator cab. The cameras, both of which have a 180 degree angle of view, remove any blind spots behind and on the right side of the excavator cab. The excavator operator's view of the left side of the excavator is not obstructed; the front of the excavator track chassis was painted white so the excavator operator can check the orientation of the excavator tracks from the excavator cab. (vii) on 1 September 2009 the Group made an ex-gratia payment of $50,000.00 to Mr Gorken's widow, to assist her in the aftermath of the incident. In addition, Group employees contributed a further sum of $10,000.00 to Mrs Gorken; (viii) in August 2009, Human Dymensions Pty Limited, a company that specialises in organisational psychology and training, was engaged to undertake a review of the Group's safety culture. Key recommendations in the report were implemented as follows: additional training was provided to Supervisors and Leading Hands in relation to the Group's occupational heath and safety management system; the importance of a consistent safety message was addressed through the development of a Group Safety Charter; the consideration of key personnel as "safety champions" was effected through the recognition that the Safety Committee members fulfil this role; the provision of additional training to Group personnel particularly with respect to supervisory skills for Supervisors and Leading Hands through both internal and external trainers; the development of the concept of "safety conversations" by a series of one day workshops that were attended by all personnel in November 2009, which also included safety observation and hazard identification competence with particular emphasis on challenging complacency and the encouragement of input from the work crews; one of the purposes of the workshops was to increase the awareness of Group personnel to raise safety issues and concerns, especially at toolbox talks, as well as to encourage greater communication and participation in the identification of risks and hazards; Supervisors and Managers have been encouraged to provide positive recognition to personnel for safety initiatives and improved performance. A Performance Observation Form has been developed to assist in recording this recognition; to assist with ensuring the validity of SWMSs and other occupational health and safety documentation, Project Engineers, Project Managers and Supervisors have attended workshops in relation to the preparation of SWMSs; in late November 2009, relevant personnel, including Managers and Supervisors attended a one day workshop on advanced hazard and risk identification, assessment and management. (ix) a safety charter has been developed with external expert assistance and has been implemented; (x) the defendant's safety system has been independently assessed and on 7 October 2009 the System was accredited by the NSW Department of Services, Technology & Administration under the NSW Government OH&S Management System Guidelines (4th Edition); (xi) Michael Miller was diagnosed as suffering from post traumatic stress disorder. As a result of counselling that was arranged by the Group together with additional external psychological assistance and the support of Group personnel, Mr Miller has been able to substantially re-establish his life after the trauma of the incident which impacted on him significantly. Mr Miller returned to full time duties on 16 August 2010 he was appointed to the position of Procurement Manager, which is based at the Group's head office at Rozelle. He has continued in this position to the present time. 18The purpose in citing Mr Hiley's affidavit in some detail is to demonstrate the defendant's undoubted commitment to occupational health and safety and, in particular, to show the steps taken by the defendant following what occurred on 22 May 2009. I think it is useful, where a defendant has implemented commendable and comprehensive remedial measures following a breach of the Act, to identify the nature and extent of those measures in order that other employers might find it a helpful benchmark. Verdict 19Having regard to the charge in this matter, the particulars of the offence, the agreed statement of facts and the evidence tendered in the proceedings, I accept the plea of guilty by the defendant and will enter a verdict accordingly. Consideration 20It is necessary to consider the objective seriousness of the offence. That involves a consideration of the risk to the safety and health of employees as charged. The risk was that persons who were not employees of the defendant were exposed to the risk of injury whilst undertaking tasks associated with the loading and unloading of trucks at the Yard of the defendant's premises of suffering crush and bodily injuries resulting from being struck or crushed by moving plant (being an Excavator) during the unloading and loading operations. 21As Walton J, Vice-President observed recently in Inspector Williams v H P Woods (Holding) Pty Ltd [2011] NSWIRComm 114 at [40]: [40] The duty created by the Act is directed at 'obviating' risks to the health and safety of employees at the workplace, even in the absence of any actual incident causing injury: Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 (at [97] and [107]). 22Here, the defendant failed to obviate the risk in two respects. First, by failing to ensure that systems of work for persons who were not its employees whilst undertaking tasks associated with the loading and unloading of trucks at the Yard of the defendant's premises were safe and without risks to health. Secondly, by failing to provide adequate information, instruction and training to persons who were not its employees necessary to ensure their health and safety whilst undertaking tasks associated with the loading and unloading of trucks in the Yard at the premises. 23The charge identified the measures the defendant should have taken, but failed to take, to ensure safety. In relation to the systems of work the defendant should have but did not: a. develop and enforce an adequate system of monitoring and supervision of contractor truck drivers who entered the Yard at the premises; b. ensure compliance by contractor truck drivers with the document entitled 'Job Safety Analysis for loading and unloading of trucks in the Yard' at the premises; c. develop and provide a Safe Work Procedure for loading and unloading of trucks for contractor truck drivers who wished to assist in the loading of their trucks at the Yard of the premises; d. develop and provide a specific induction and training for contractor truck drivers in respect to the undertaking of loading and unloading of trucks in the Yard at the premises. 24Had the defendant developed and enforced a system of monitoring and supervision of contractor truck drivers who entered the Yard at Premises, I agree with the prosecutor that this would have eliminated or reduced the circumstances where contractor truck drivers assisted with the tasks of loading and unloading items on trucks and were thereby exposed to the risk. 25The Loading and Unloading JSA provided that truck drivers who were not trained as either a dogman, rigger or crane driver were not to be on their vehicle during loading or unloading. This provision was not enforced during the circumstances of the loading of Mr Gorken's truck on the day of the incident, as Mr Gorken was permitted to be on the truck and act as dogman during the loading of the items on the truck. 26The Loading and Unloading JSA also provided that the truck driver must stand in a safe position where he or she can see the load being lifted and loaded onto the truck and must always remain in view of the crane/excavator operator and that the operator should cease loading operations if the whereabouts of the truck driver were unknown. These provisions were not enforced during the circumstances of the loading of the truck on the day of the incident, as Mr Gorken was not kept out of the area where the truck was being loaded while the Loader was operating. I agree with the prosecutor that had the defendant enforced compliance by Mr Gorken with the Loading and Unloading JSA, this would have eliminated or reduced the risk of the injury occurring. 27I further agree that if the defendant had developed and provided an appropriate written Safe Work Procedure for loading and unloading of trucks for contractor truck drivers who wished to assist in the loading of their trucks at the Yard of the premises, then truck drivers, such as Mr Gorken, would have clearly known what tasks they were and were not permitted to undertake in assisting with the loading of their trucks in the Yard and would have eliminated or reduced the risk of crush injuries. 28In relation to the failure to provide adequate information, instruction and training the defendant should have but did not provide specific induction and training to contractor truck drivers who were going to perform work in the Yard at the Premises, which included being trained in the contents of the document entitled 'Job Safety Analysis - Yard.' 29The failure to require contractor truck drivers or courier drivers to undergo a Yard induction or be given or trained in the Yard JSA meant that the defendant could not ensure that contractor truck drivers either were informed not to undertake tasks to assist in loading and unloading operations or had knowledge and training in what tasks they were permitted to undertake in the Yard. As the prosecutor submitted, had the defendant provided Mr Gorken with a Yard induction or given him training into the Yard JSA, this would have eliminated or reduced the risk that Mr Gorken would be exposed to the risk throughout the loading and unloading operations at the Yard. 30There are other factors to be taken into account in determining the objective seriousness of the offence. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk. In this case, the risk that manifested itself resulted in fatal injuries to Mr Gorken. Section 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 provides that the fact that an offence involved a grave risk of death to another person or persons is an aggravating factor to be taken into account in determining the appropriate sentence for an offence. 31The degree of foreseeability of a risk to safety is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. 32In the present case, the prosecutor's submission that the risks associated with the use of plant such as the Excavator at the Yard were foreseeable is to be accepted. Indeed, the defendant's own documents identified the risk of crush injuries to persons resulting from Excavator operations in established areas or from plant failure. It may be concluded that the risk was not only foreseeable but the defendant knew of the risk. 33An additional factor in assessing the gravity of an offence is whether there was available at the time of an incident simple and straightforward remedial measures to avoid or minimise the relevant risk to safety. In the present case such measures are readily apparent as evidenced by the remedial steps taken by the defendant following the incident. 34Factors that mitigate the seriousness of the offence must also be taken into account. In that regard, it is important to note the defendant's strong commitment to ensuring effective occupational health and safety policies and practices operated at the Yard. Whilst the implementation of these policies and practices was tragically defective in the manner charged, it cannot be said the defendant's failure to ensure safety was due to an overall lax approach. 35Further, I have had regard to the fact that Mr Gorken did sign off on a Loading and Unloading of Trucks Job Safety and Environmental Analysis in the course of providing transport services to a Group project site at Port Kembla. That JSEA had essentially the same content as the Loading and Unloading JSA that was in place at the Yard. 36I have also had regard to the evidence that it was agreed between Mr Gorken, Mr Marmora and Mr Miller that while Mr Marmora went to get the forklift to complete the loading of the truck, Mr Gorken would wait on the back of the truck inside the punt so he could assist with the placing of the items inside the punt. There was no explanation as to why Mr Gorken, an experienced operator who had been to the Yard many times, decided to dismount from the truck and place himself within the range of the Excavator's arm at a time when the Excavator was about to be moved. 37There remains the question of deterrence. I accept the prosecutor's submission that the Court should take into account an element relating to general deterrence when fixing the penalty to be imposed upon the defendant. In particular, as it was submitted, the sentence imposed should reflect the need to deter others from failing to take a rigorous approach to ensuring that known hazards from working with plant in undertaking the tasks involved in the loading and unloading of vehicles are rectified. 38As to specific deterrence, the defendant made a strong submission that there should be no element in the penalty for specific deterrence or if there was to be it should be only very minor. The submission was based on the defendant's approach to safety and the extensive measures taken post-incident to ensure there is no recurrence of what occurred on 22 May 2009. 39The defendant, nevertheless, continues to operate in the same industry and continues to require the loading and unloading of trucks for the transport of equipment at the Yard and at various work sites. In those circumstances I intend to include an element in the penalty for specific deterrence (see Capral Aluminum Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29). However, the element will be small. 40Finally, in relation to objective considerations, regard is to be had to the maximum penalty for the offence, which is $550,000. 41There are a number of subjective considerations. First, the prosecutor accepted there had been an early plea of guilty and I also accept that to have been the case. I intend to discount the penalty by 25 per cent. 42Secondly, the defendant has no prior convictions and I accept the good character of the defendant. Thirdly, the defendant co-operated fully with the WorkCover Authority throughout its investigation. Fourthly, I consider the defendant has demonstrated remorse and contrition by its early plea and by its post-incident conduct. 43Having regard to all of the subjective and objective considerations in this matter I have determined an appropriate penalty to be $130,000. Orders 44The Court makes the following orders: (1) The defendant is convicted of the offence. (2) The defendant is fined the sum of $130,000 with a moiety to the prosecutor. (3) The defendant shall pay the prosecutor's costs as agreed or as assessed. Failing agreement, costs may be referred to the Registrar for assessment. ********** 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: 30 September 2011