Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31 Hearing dates: 12 April 2012 Decision date: 18 April 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Matter No IRC 280 of 2011 (1) The defendant is found guilty of the offence charged under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $83,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Matter No IRC 281 of 2011 (1) The defendant is found guilty of the offence charged under s 8(2) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $117,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecution under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - Laying of new rail track - One worker killed and others seriously injured when load under weight suspended from mobile crane broke apart and struck workers - Pleas of guilty - Sentencing - Objective and subjective considerations - Totality - Penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Haynes & Callaghan v C I and D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 Inspector Callaghan v Saunders Constructions (unreported Maidment J, CT 1062 of 1993, 26 November 1993 Inspector Dall v Ullrich Aluminium Pty Ltd [2011] NSWIRComm 156 Inspector Dennis Howard v Multiplex Constructions (NSW) Pty Ltd [2002] NSWIRComm 229 Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Inspector Jones v Walker Group Constructions Pty Ltd [2006] NSWIRComm 11 Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 262 ALR 569 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 Muldrock v R [2011] HCA 39; (2011) 281 ALR 652 R v Thomson; R v Houlton (2000) 115 A Crim R 104 WorkCover Authority (NSW) v ACI Operations Pty Ltd (Industrial Court of New South Wales, Schmidt J, 25 February 1994, unreported) WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 1123; (2000) 95 IR 383 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316 WorkCover New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) [2000] NSWIRComm 39; (2000) 99 IR 163 Texts Cited: Principles of Sentencing (2nd ed, 1979) 56-57 Category: Principal judgment Parties: Inspector Madeline Christensen (Prosecutor) Hebron Holdings Pty Limited (Defendant) Representation: Ms A Mitchelmore of counsel (Prosecutor) Mr P Ginters of counsel (Defendant) WorkCover Authority of New South Wales (Prosecutor) Kell the Lawyers (Defendant) File Number(s): IRC 280 of 2011 IRC 281 of 2011 Judgment 1On 24 March 2009, near Telarah (approximately 194 kilometres north of Central Railway Station) in the State of New South Wales, Agamalu Iosefa, Robert Dixon, Mark McDonnell, Adam O'Sullivan and Kyle Ward were performing work involving the replacement of railway lines and supporting concrete sleepers. Messrs Iosefa, Dixon and McDonnell were employees of GTE Workplace Management Pty Ltd ("GTE"), a labour hire company. GTE had been engaged by MVM Rail Pty Ltd ("MVM") to provide additional workers at the site known as the Farley site. Mr O'Sullivan was a leading hand/labourer employed by MVM. Mr Ward was a labourer employed by Taylor Rail Track Pty Ltd. In about April 2009, Taylor Rail Track changed its name to Hebron Holdings Pty Ltd ("Hebron") and it is Hebron that is the defendant in these proceedings. Whilst Taylor Rail Track was the relevant entity at the time of the incident, this judgment will refer to Hebron. 2It is noted that Hebron no longer trades and has not traded since April 2009. There is no intention of Hebron trading again and it has no employees. A new trading entity was set up known as Taylor Rail Australia Pty Ltd, which employs 35 employees. The Court accepts the evidence of Mr Mark Wroblewski, the sole director and shareholder of the defendant, that the company restructuring that led to the change in name of Taylor Rail Track to Hebron and the incorporation of Taylor Rail Australia Pty Ltd did not occur as a consequence of the incident on 24 March 2009, but arose out of financial arrangements. 3MVM had been engaged by Hebron to provide labour for the installation works. Hebron, in turn, had been engaged by Abigroup Contractors Pty Ltd ("Abigroup") along with Boom Logistics Pty Ltd to undertake particular activities. Abigroup, the principal contractor, had been engaged by the Australian Rail Track Corporation ("ARTC") to carry out the rail track work at Allendale (approximately 204 kilometres north of Central Railway Station) and Farley (approximately 194 kilometres north of Central). 4The description of works in the Minor Works Agreement between Abigroup and Taylor Railtrack was as follows: Remove existing plain line track from up and down lines and set aside for re-use Earthworks and formation works (by others) Install existing plain line Weld new panels together Place top ballast & regulate Lift & line tracks to design alignment Certify installation Prior to commencing work on the Farley rail track project, Hebron had been involved with the installation of similar rail/sleeper panels. 5At approximately 9.30 pm on 24 March 2009 at the Farley site, a crane was used to place a Panel ("Panel 5") consisting of three sets of railway tracks (railway lines and sleepers) in position. It was found the Panel could not be correctly aligned. The Panel, weighing some 34.7 tonnes, was placed on the ground. However, the crane operator did not release the entire load from the crane and 31 tonnes remained under weight. 6A decision was made to unclip a number of "Pandrol" clips that secured the railway lines to concrete sleepers in order to realign the lines. At some time after 10.30 pm Messrs Iosefa, Dixon, McDonnell, O'Sullivan and Ward began removing Pandrol clips from rails that were directly under the load of the lifting chain. As the clips were removed, it appears that the integrity of the remaining clips weakened leading to excessive tension being placed upon the line. Shortly thereafter, a number of rail lines suddenly sprang free from the Panel and struck the installation workers who were on the Panel. 7Mr Iosefa sustained fatal injuries as a result of the incident. Mr Ward suffered multiple fractures to his right foot, cuts and bruising. Mr Dixon sustained a broken right leg. Mr McDonnell received a laceration to the head, a broken shoulder, a broken ankle and unspecified injuries to his calf muscle. Mr O'Sullivan sustained a severe crush injury to his forearm and ultimately required amputation above the elbow. 8Arising out of the incident on 24 March 2009, Hebron was prosecuted by Inspector Madeline Christensen of the Work Cover Authority of New South Wales under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000. In the prosecution under s 8(1) it was alleged the defendant failed to: Ensure, by its acts or omissions as particularised below, the health, safety and welfare at work of all its employees, and in particular, Mr Kyle Ward, contrary to s 8(1) of the Occupational Health and Safety Act 2000. The particulars of the risk are that: (a)The defendant's employees, and in particular, Mr Kyle Ward, was put at risk of injury from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the site. The particulars of the acts or omissions of the defendant in failing to eliminate the risk are: (b)The defendant failed to conduct an adequate risk assessment with respect to the task of rectifying a panel misalignment, in that it failed to: (i)identify the risk of injury arising from the task of removing Pandrol clips from rails forming part of a panel that was attached to a crane and, accordingly, was potentially under weight, and (ii)determine how that risk could be eliminated or controlled. (c)The defendant failed to provide and maintain a safe system of work in relation to the task of installing rail panels at the site, in that it failed to: (i)implement and maintain an adequate system of communication with other subcontractors at the site, in particular with Boom Logistics Ltd, in relation to the movement of loads at the site, as to: iwhen a load was and was not under weight; iiwork that it proposed be carried out by workers on loads that were still attached to a crane; and iiiwhether there were any risks associated with such work. (ii)ensure that its employees who were working in the vicinity of the crane operated by Boom Logistics remained clear of the range in which they could be struck by a load (exclusion zone) whilst the crane was in operation and/or whilst a load was under weight; (iii)confirm that a rail panel was not under weight before instructing its employees to perform work on the panel, in particular work that involved removing Pandrol clips from the rails; and (iv)ensure that its employees did not remove Pandrol clips from rails on a rail panel that was still under weight. (d)The defendant failed to provide its employees with such information, instruction and training as was necessary to ensure their safety at work in that it failed to: (i)ensure that its employees were informed and instructed to maintain safe working distances from the exclusion zone whilst the crane was in operation and/or a load was under weight; and (ii)ensure that its employees were informed of the risks associated with accessing a panel that was still under weight. As a result of the defendant's failures and omissions its employees, were placed at risk of injury. Further, and as a consequence of the failures set out above, Kyle Ward suffered injuries. 9In relation to the charge under s 8(2) it was alleged the defendant failed to: Ensure, by its acts or omissions as particularised below, that persons not in its employment, and in particular, Mr Agamalu Iosefa, Mr Robert Dixon, Mr Mark McDonnell and Mr Adam O'Sullivan, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while at the defendant's place of work contrary to s 8(2) of the Occupational Health and Safety Act 2000. The particulars of the risk are that: (a)Persons other than the defendant's employees, and in particular, Messrs Iosefa, Dixon, McDonnell, and O'Sullivan, were put at risk of injury from being struck by a rail panel whilst installing rail panels at the site. The particulars of the acts or omissions of the defendant in failing to eliminate the risk are: (b)The defendant failed to conduct an adequate risk assessment with respect to the task of rectifying a panel misalignment, in that it failed to: (i)identify the risk of injury arising from the task of removing Pandrol clips from rails forming part of a rail panel that was attached to a crane and, accordingly, was potentially under weight, and (ii)determine how that risk could be eliminated or controlled. (c)The defendant failed to provide and maintain a safe system of work in relation to the task of installing rail panels at the site, in that it failed to: (i)implement and maintain an adequate system of communication with other subcontractors at the site, in particular with Boom Logistics Ltd in relation to the movement of loads by crane at the site, as to: iwhen a load was and was not under weight; iiwork that it proposed be carried out by workers on loads that were still attached to a crane; and iiiwhether there were any risks associated with such work. (ii)ensure that the workers it had engaged through subcontractors who were working in the vicinity of the crane remained clear of the range in which they could be struck by a load (exclusion zone) whilst the crane was in operation and/or a load was under weight; (iii)confirm that the rail panel was not under weight before instructing workers it had engaged through subcontractors to perform work on a rail panel, and in particular, work that involved removing Pandrol clips from the rails; and (iv)ensure that those workers did not remove Pandrol clips from rails forming part of a rail panel that was still under weight. (d)The defendant failed to ensure that the workers it had engaged through subcontractors were provided with such information, instruction and training as was necessary to ensure their safety at work in that it failed to: (i)ensure that those workers were informed and instructed to maintain safe working distances from the exclusion zone whilst the crane is in operation and/or the load is under weight; and (ii)ensure that those workers were informed of the risks associated with accessing a panel that was still under weight. As a result of the defendant's failures and omissions persons other than its employees, were placed at risk of injury. Further, and as a consequence of the failures set out above, Mr Iosefa suffered fatal injuries and Messrs Dixon, McDonnell and O'Sullivan suffered injuries. 10The defendant entered a plea of guilty to both charges. The Court accepts the pleas. Evidence 11The prosecutor tendered an agreed bundle that consisted of an Agreed Statement of Facts of some 136 paragraphs with 10 attachments, which were: (1)factual Inspection Report of Inspector David Barker dated 25 March 2009; (2)factual inspection Report by Inspector Graeme Aldred, dated 27 March 2009; (3)photographs of the incident scene taken by Inspector Aldred on 25 March 2009; (4)photographs of the incident scene taken by Inspector Barker on 25 March 2009; (5)Boom Logistics Job Safety Analysis for crane operations; (6)Boom Logistics lift study/plan for installation of nine rail sections at Farley Crossover; (7)Taylor Rail Track safe work method statement 017-03 for turnout installation; (8)Taylor Rail Track safe work method statement 024-03 for turnout construction; (9)Taylor Rail Track safe work method statement 015-03 for take-up track; (10)Taylor Rail Track safe work method statement 022-03 for track construction. 12Additionally, the agreed bundle contained an ASIC Company Search for Hebron Holdings Pty Ltd and a prior convictions statement for Hebron indicating no prior convictions. 13For the defendant an affidavit of Mr Wroblewski was tendered. Mr Wroblewski was not required for cross-examination. Mr Wroblewski set out his work and family background and how he came to purchase Taylor Rail Track in 2002. Mr Wroblewski completed an electrical trade apprenticeship and worked as an electrician and later technician for a number of years. He also explained the circumstances of Hebron coming into existence and the establishment of Taylor Rail Australia Pty Ltd. 14Mr Wroblewski deposed as to his commitment to safety and in that respect stated: Up until the incident which is the subject of these proceedings the defendant company never had any lost time injuries. TRA and, when it traded Hebron Holdings (and its predecessor Taylor Rail), have been audited by the independent transport safety regulator on a number of occasions and TRA continues to have regular safety audits. These are conducted in TRA about once every 12 to 18 months. 15Mr Wroblewski also deposed as to the safety arrangements in place at Taylor Rail Australia Pty Ltd and further deposed as follows: The job that Taylor Rail/Hebron Holdings was performing at the time of the incident was similar to a job that was done approximately 6 months before on the same line. On that job, Tim Horan was the supervisor for the defendant company. Tim has a Civil Engineering Diploma. He has worked on a variety of sites including work on the construction of the M7. There were a number of other experienced people on the site. These include Mr Sullivan and Mr Paul Harris. I have known Mr Harris for a long period of time. He is experienced in all aspects of railway construction and maintenance and to my knowledge has been involved in the rail industry for all of his working life. On this job Taylor Rail/Hebron Holdings was subcontracted to Abigroup Contractors Pty Ltd. Abigroup Contractors Pty Ltd sub contracted the crane work to Boom Logistics Pty Ltd. At the time of the incident Hebron Holdings had in place, and was applying a number of Safe Work Method Statements. These are referred to in, and annexed to, the Statement of Facts. After the incident the Safe Work Method Statements for track construction were revised. This is referred to in, and annexed to, the Statement of Facts. After the incident counselling was provided for all staff with a psychologist, Christine Gillies. She saw all of the workers who were on the site at the time of the incident. I wanted to make sure that they had all needed counselling. An offer was provided that employees could have counselling on an ongoing basis. This is being done confidentially but I understand that some have taken it up. Following the incident TRA has also kept an eye on anyone who was on the site at the time of the incident. A decision was made to not put workers onto anything that was challenging until TRA was certain that they were OK. One of the employees of the defendant company on the site at the time of the incident was Mr Kyle Ward. He was the only direct employee of the defendant company that was injured. As part of TRA's regular drug and alcohol review he was tested in May 2009. He tested positive for marijuana. Normally an employee who tests positive for drugs would be dismissed but because of Mr Ward's involvement in this incident TRA offered to cut him a bit of "slack" and did not terminate his employment. Mr Ward resigned in September 2010. He started working again doing labouring work on rail way jobs in the Western division of NSW. He came back to TRA in early 2011. He is still with us. Companies that I am involved in are regular supporters of charity and community involvement. Through companies I am involved in I support charities and sporting activities each year. The typical budget that the companies spend on these activities is $35,000.00 per annum. This money has been used to support, for example, The Salvation Army, sponsor overseas children, rugby league football sides, community fishing groups, hockey teams and other sporting groups. I appreciate the enormity of the incident that happened and the effects that this has had on many people's lives. I appreciate that with better communication on the site the incident could have been avoided. I am aware that this incident has had a devastating effect on numerous families and individuals. On behalf of the defendant, Hebron Holdings, wish to express its acceptance of responsibility for the tragic loss of Mr Iosefa's life and that injuries suffered by other workers as a result of this incident. I also wish to express how deeply sorry and remorseful Hebron Holdings and I are that this incident occurred. 16There were matters to which Mr Wroblewski deposed in his affidavit that were of no or little relevance to the proceedings including matters relating to Taylor Rail Australia Pty Ltd. Where those matters are not relevant I have not taken them into account. Consideration 17It was determined in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J and confirmed in Muldrock v R [2011] HCA 39; (2011) 281 ALR 652 at [26] that the correct approach to sentencing is that: [T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Nature and quality of the offences 18It is convenient to start with the objective circumstances of the two offences. The offence under s 8(1) of the OHS Act was the failure by the defendant on 24 March 2009 to ensure the health, safety and welfare at work of its employees and in particular, Mr Ward. The offence under s 8(2) was a failure on 24 March 2009 to ensure that people (other than the employees of the defendant) namely, Messrs Iosefa, Dixon, McDonnell and O'Sullivan, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they are at the defendant's place of work. 19The duty imposed by s 8(1) and by s 8(2) is contravened when a measure should have been taken by an employer to obviate an identifiable risk: Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 262 ALR 569. It is not necessary that harm has already befallen an employee or other person for an offence to have been committed: Kirk at [13]. Where an inspector authorised under the OHS Act identifies a risk to the health, safety or welfare of employees or other persons present at a workplace, which an employer has not addressed, s 8(1) and/or 8(2) may be contravened: Kirk at [13]. 20The risk identified in the two charges before the Court was risk of injury to Messrs Ward (s 8(1) charge), Iosefa, Dixon, McDonnell and O'Sullivan (s 8(2) charge) from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the Farley site. 21The charge must also identify the act or omission said to constitute a contravention. In the present case the omissions of the defendant in failing to eliminate the risk are clearly stated and they are common to both charges. It was alleged the defendant failed to: (a)conduct an adequate risk assessment with respect to the task of rectifying a panel misalignment; (b)provide and maintain a safe system of work in relation to the task of installing rail panels at the site; (c)ensure that the employees/workers it had engaged through subcontractors were provided with such information, instruction and training as was necessary to ensure their safety at work. Each of these omissions alleged in the charges were particularised in the terms set out earlier in this judgment. 22As the Agreed Statement of Facts indicated, the work being undertaken at the site at the time of the incident involved the replacement of a section of railway lines and supporting concrete sleepers. A rectangular panel, known as a "switch track", had been assembled on site adjacent to where the replacement was proposed. It consisted of six standard railway lines, each measuring approximately 12.4 metres. The railway lines were mounted in a parallel fashion across 21 concrete railway sleepers. The railway lines were secured to the sleepers by the use of Pandrol clips. The clips consisted of a flat plate (195mm long, 165 mm wide, 5 mm thick), two side plates (110 mm long, 55 mm wide, 15 mm thick) and two round metal "pigtail" shaped securing pins (20 mm in diameter and 100 mm long). The method of moving the prefabricated railway sections at the site was via mobile crane. 23The men who were placed at risk of injury were members of a night shift crew. Between approximately 8.30 pm and 9.30 pm, the crane crew lifted and installed two rail panels, namely "Panel 3" and "Panel 4". These panels were placed in position without any trouble. 24At approximately 9.30 pm the crane crew set up the crane to lift "Panel 5" onto the track. Panel 5, as I earlier said, weighed 34.7 tonnes and consisted of three sets of railway tracks. Chains were attached to the rails in order to lift the Panel. This was done by two dogmen employed by Boom Logistics, Mr Michael Featherston and Mr Kim Ford. 25At approximately 10.30 pm the crane crew commenced lifting Panel 5 into its position on the track. However, it was discovered that the end of the rail lines did not meet and, accordingly, the Panel could not be correctly aligned with the previous panel. Some adjustments were made but a second attempt to align the Panel also failed. 26A discussion occurred about what to do involving Mr Paul Harris who was Abigroup's Construction Manager and overall site supervisor for the job, Mr Tim Horan, the defendant's Construction Manager, Mr Geoff Drewe, Senior Project Engineer for Abigroup and Mr Jason Stewart, a Survey Technician with Rail and Road Professional Services. 27Whilst these discussions were occurring, Mr Edward Jones, the crane operator employed by Boom Logistics, lowered Panel 5 to the ground, but he did not release all of the load from the Crane. Of the total load of 34.7 tonnes, 31 tonnes remained under weight. At this time, Mr Featherston left the area of the crane to get a cup of coffee for himself and Mr Jones. 28A decision was made to unclip a number of Pandrol clips so as to remove a further two rails and slide them back into alignment. Mr Harris and/or Mr Horan then instructed the workers to undertake this task. A number of installation workers assisted with the task, including Mr Iosefa, Mr Ward, Mr O'Sullivan, Mr Dixon and Mr McDonnell. 29Mr Horan was present at the site at the time of the incident and was involved in the decision to remove some of the Pandrol clips that were securing the rails to the concrete sleepers. Mr Horan claimed that he had asked the dogman to drop the panel whilst they determined how to correct the misalignment. He did not, however, confirm the panel was not under weight before the installation workers moved on to the Panel to remove the Pandrol clips. 30As the installation workers were in the process of removing the Pandrol clips, they removed clips from rails that were directly under the load of the chain. As the clips were removed, it appears that the integrity of the remaining clips weakened, leading to excessive tension being placed upon the line. Shortly thereafter, a number of rail lines suddenly sprung free from the Panel and struck a number of the installation workers who were on the Panel. The result was the death of Mr Iosefa and serious injury described earlier to the other workers. 31As the Agreed Facts indicated, Hebron prepared a number of Safe Work Method Statement's ("SWMS") for the work to be undertaken at the site. The SWMS's addressed the tasks of lifting out track panels, panel installation, Pandrol clip installation and the movement of rails/components into position. The SWMS's also identified the hazard of being struck by plant panels for the task of lifting out track panels and outlined the following safety controls: Plant movements to be coordinated by Supervisor; Operators to be aware of staff movements around worksite; Non essential staff to stay clear of panels during any movement; and Work group to stay clear of rail during movement. 32As well, the SWMS's identified the hazard of being struck by plant whilst undertaking the task of panel installation and moving rails/components into position. In this regard, the safety controls were: plant movements to be coordinated by Supervisor; operators to be aware of staff movements around worksite. 33However, as the charges alleged, the risk assessment reflected by the SWMS's was inadequate in that it failed to: (a)identify the risk of injury arising from the task of removing Pandrol clips from rails forming part of a panel that was attached to a crane and, accordingly, was potentially under weight, and (b)determine how that risk could be eliminated or controlled. 34It is also apparent that, as particularised, the defendant failed to provide and maintain a safe system of work in relation to the task of installing rail panels at the site. The system of communication with Boom Logistics in relation to the movement of loads at the site was inadequate; there was a failure to ensure persons who were working in the vicinity of the crane remained clear of the crane whilst it was in operation and/or whilst a load was under weight; it failed to confirm that a rail panel was not under weight before instructing persons to perform work on the panel; and it failed to ensure that persons did not remove Pandrol clips from rails on a rail panel that was still under weight. 35The defendant also failed to provide the relevant persons with such information, instruction and training as was necessary to ensure their safety at work in that it failed to: (a)ensure that such persons were informed and instructed to maintain safe working distances from the exclusion zone whilst the crane was in operation and/or a load was under weight; and (b)ensure that such persons were informed of the risks associated with accessing a panel that was still under weight. 36It may be seen that there were failures in significant respects on the part of the defendant to take steps to ensure the safety of workers in circumstances where the workers were requested to undertake work on a heavy structure that was not resting safely on the ground, but which was to a large extent still suspended by chains from a mobile crane hook. The chains were under the strain of a load of 31 tonnes whilst work was being undertaken on the load. 37The load consisted of railway lines clipped to concrete sleepers. The chains were attached to the railway lines. Not being designed to hold railway lines to sleepers where the lines are, in effect, suspended from a chain, the clips would have been under very significant tension and as clips from lines that were directly under the load of the chain were removed, it appears that the integrity of the remaining clips weakened and a number of rail lines suddenly sprung free from the Panel hitting the workers. 38In these circumstances an obvious and necessary step for the defendant to have taken was to ensure the tension on the load was released before allowing workers to approach the Panel to remove the clips. It is no excuse that the defendant was not aware the load was under weight. Its system of work should have required a physical check to be undertaken to confirm the load was not under weight before allowing workers near the Panel. Mr Horan, the defendant's Construction Manager at the site, failed to confirm the panel was not under weight before the installation workers moved on to the Panel to remove the Pandrol clips. Foreseeability of the risk 39The risk was risk of injury from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the site. The risk was foreseeable. There is some indication that the defendant even knew of the risk because Mr Horan asked the dogman to drop the Panel whilst they determined how to correct the misalignment. Moreover, the defendant's safe work method statement identified a general risk of workers being struck by plant when moving rails/components into position. But putting that aside, the Panel was a large structure consisting of various components, including components that were heavy and unwieldy. In the absence of checking to confirm the Panel was resting safely on the ground, it was reasonably foreseeable that if that was not the case workers, working on the Panel to remove clips holding the rails to concrete sleepers whilst the Panel was in a state of partial suspension and under significant load, might be placed at risk. It is not necessary "to show that a reasonable person placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect involved in the happening of the defendant's accident or, in other words, the precise risk of injury or how it occurred": Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [369]. Remedial steps available 40The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety are relevant in assessing the seriousness of the offence: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27; WorkCover Authority (NSW) v ACI Operations Pty Ltd (Industrial Court of New South Wales, Schmidt J, 25 February 1994, unreported); Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. In the present case, the steps available to avoid the risk were patently simple and straightforward: one of those steps was to confirm that the Panel was not under weight before the defendant instructed workers to perform work on the panel, in particular work that involved removing Pandrol clips from the rails and until that was done ensuring workers were kept away from the load. 41Further, I agree with the prosecutor that to the extent that the defendant implemented a measure to address its failures after the offence (amendment to its safe work method statement in respect of working around cranes where lifting of track panels is involved) that measure demonstrates the ready availability of a step that the defendant could have taken to eliminate or to otherwise reduce the subject risk and the ease with which it could have properly addressed those risks prior to the offence: see Inspector Callaghan v Saunders Constructions (unreported Maidment J, CT 1062 of 1993, 26 November 1993). Damage or injury caused by the contravention 42Although the damage or injury caused by the contravention of the Act does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 1123; (2000) 95 IR 383 at 428 and Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]; Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201 at [35]. 43In the present case, Mr Iosefa was killed and other workers sustained serious injury. It is apparent from the circumstances of the incident that more workers could have died. The risk was serious indeed. Contribution of other parties 44A factor to be considered in determining the seriousness of the defendant's offence is the role played by other parties. However, as Hungerford J observed in WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316 at [46]: "[I]t cannot... be used to itself reduce the culpability of a defendant in any sharing or proportionate way of an overall penalty but only as a factor assisting in the determination of the real culpability of the defendant for the offence charged." 45The Agreed Facts dealt with Boom Logistics' system of work and stated: Prior to, and at the time of the incident, the crane crew followed and performed lifts in accordance with the lift study plan for the Crane. Following a number of unsuccessful attempts to re-align Panel 5, Mr Ford directed Mr Jones to rest the Panel on the ground whilst the installation works determined how to align the Panel. Mr Jones placed Panel 5 on the ground but maintained tension on the chains. According to Boom Logistics it is common practice for a panel to be grounded with some tension still on the chains, as it allows installation workers to manually align a panel into its final position. However, no member of the crane crew informed the supervisors from Taylor Railtrack [Hebron] or Abigroup, who had gathered near the Panel to discuss how to correct the misalignment, that it remained under weight. Nor did the crane crew inform the installation workers that the Panel was still under weight. Mr Ford stated, in his WorkCover witness statement dated 14 April 2009, that he advised workers around the Panel that there was still weight on the lifting chains and informed them not to undertake any further work on the panel until they consulted him. However none of the installation workers and supervisors who were present at or near the Panel at the time of the incident, including Mr McDonnell, Mr O'Sullivan, Mr Dixon, Mr Horan, Mr Harris and Mr Ward, recall being told by any member of the crane crew that the Panel was still under weight. Further, Mr Featherstone (sic) did not recall the installation workers being informed that the Panel was still under weight. The installation workers did not receive, or recall, (sic) receiving, any instructions from the crane crew in relation to the movement of panels at the site and they did not receive any instructions in relation to not accessing the area where a panel was being manoeuvred, or not accessing a panel whilst it was still under weight. Boom Logistics did not ensure that loads which were under weight remained under the continuous supervision of at least one member of the crane crew. Immediately prior to the incident, the crane crew were located in, or near, the vicinity of the Crane and the rail panel. Mr Jones and Mr Fetherston noticed a number of installation workers standing near the panel, but stated that they were unaware that the workers were on the panel removing clips until they heard banging noises coming from the direction of the panel. Mr Ford was also not observing the panel at the time of the incident, but was turned away from the Panel in the direction of the Abigroup supervisor's hut. 46The Agreed Facts also indicated that at the time of the incident the area surrounding the crane was not barricaded and an exclusion zone was not established or maintained around loads which were under weight. Further, that Boom Logistics did not ensure that the installation workers remained clear of the lift area while the load was still under weight and it did not prepare a safe work method statement for the handling of panels at the site. 47The evidence in these proceedings indicates (i) Boom Logistics did not ensure that loads which were under weight remained under the continuous supervision of at least one member of the crane crew; (ii) the crane crew did not inform the installation workers or relevant supervisors that the Panel was still under weight; (iii) Boom Logistics did not barricade the area surrounding the crane and an exclusion zone was not established or maintained around loads which were under weight; (iv) Boom Logistics did not ensure that the installation workers remained clear of the lift area while the load was still under weight and it did not prepare a safe work method statement for the handling of panels at the site. Such omissions must be taken into account in determining the "real culpability" of the defendant. 48Had it not been for the omissions described in the preceding paragraph it is unlikely the risk would have arisen. Nevertheless, there were significant failures on the part of the defendant that lead inevitably to the conclusion the offences were objectively serious. Indeed, the defendant conceded this was so. 49A further fact in mitigation is that the defendant did not fall into that category of offenders who were ignorant or dismissive of their obligations in respect of workplace safety. The defendant had systems in place and observed those systems. However, in March 2009 the systems fell down. A further mitigating factor is the defendant's good safety record and that prior to the incident it had not had any lost time injuries. Deterrence 50The prosecutor submitted that the penalty to be imposed should reflect both elements of general and specific deterrence: see Inspector Dennis Howard v Multiplex Constructions (NSW) Pty Ltd [2002] NSWIRComm 229 at [26] and Inspector Jones v Walker Group Constructions Pty Ltd [2006] NSWIRComm 11 at [25]-[26]. There is clearly a basis for general deterrence to play a part in the sentence: Capral. Risks arising from working close with heavy equipment such as cranes have been a regular feature in prosecutions that come before this Court and it is appropriate to fix a sentence that will assist in deterring others from committing offences involving the operation of cranes. 51As for specific deterrence, Hebron no longer trades, it has no employees and there is no intention to trade in the future. In Capral at [77] it was said that in sentencing an offender, a Court might disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent for the reason, inter alia, that the offender will not have the opportunity to commit a similar offence in the future. That applies in this case and so the Court does not intend to include in the sentence an element for specific deterrence. Subjective factors Early guilty pleas 52The prosecutor accepted Hebron's pleas of guilty were entered at the earliest opportunity. In the circumstances, as the prosecutor conceded, there is a significant "utilitarian value" to the Court and to the State, in terms of the saving of resources that has flowed from those pleas. I propose to discount the sentence by 25 per cent for the early guilty plea. See ss 21A(3)(k) and 22 of the Crimes (Sentencing Procedure) Act 1999 and R v Thomson; R v Houlton (2000) 115 A Crim R 104 at 138. Cooperation with WorkCover 53The prosecutor also accepted Hebron cooperated with the WorkCover Authority of New South Wales during its investigation of this incident. Section 21A(3)(k) and s 23 of the Crimes (Sentencing Procedure) Act provide that the Court may take into account assistance given by the defendant. The Court accepts there was cooperation. Rehabilitation prospects 54The prosecutor acknowledged steps were taken by the defendant to address its failures after the offence and in that respect s 21A(3)(h) of the Crimes (Sentencing Procedure) Act provides that if the offender has good prospects of rehabilitation that this is another mitigating factor. Hebron does not intend to trade in the future so rehabilitation is not a relevant consideration; nor are steps taken by Taylor Rail after the incident to improve occupational health and safety. The Court does, however, accept it should have regard to the changes Hebron made to its safe work method statement after the incident. Counselling, community service 55Other subjective factors to be taken into account are that the defendant provided counselling to workers affected by the incident on 24 March 2009 and the defendant's community service as a good corporate citizen. Remorse 56The defendant submitted that it had also demonstrated remorse and contrition as evidenced by its conduct following the incident (including the pleas of guilty) and the express statement of remorse and contrition by Mr Wroblewski in his affidavit. 57Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides that a mitigating factor to be taken into account is: (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), 58The defendants pleas of guilty, cooperation with the investigating authority and the statement by Mr Wroblewski that the defendant, Hebron Holdings, accepts responsibility for its actions as well as his statement appreciating "the enormity of the incident that happened and the effects that this has had on many people's lives" suggests to me that the requirements of s 21A(3)(i) have been satisfied. Capacity to pay, company size 59Counsel for the defendant submitted that Hebron's personnel, plant and intellectual property had been transferred to Taylor Rail Australia and that Hebron no longer trades and no longer employs staff. It was further submitted Hebron is a "one director and shareholder company". 60No evidence of a financial nature was tendered in support of an incapacity to pay argument and it did not seem to me the defendant was in fact contending it did not have the capacity to pay any fine imposed. Whilst it may well be the case Hebron transferred certain assets to Taylor Rail, if it wished the Court to take seriously an incapacity to pay argument, it was required to reveal the precise state of its financial affairs. 61The Court is however, prepared to adopt the approach laid down in Haynes and Callaghan v C I and D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 at 457, namely, that where as a matter of corporate structure the burden of any fine levied would fall on one person or the family group ownership, it is appropriate to impose a fine substantially less than if the corporation was functioning as a company with substantial assets. Totality 62The defendant has pleaded guilty to two charges, one under s 8(1) and the other under s 8(2). The maximum fine in each case is $550,000 making the potential penalty $1.1 million. The penalties to be imposed in the present case are to be determined by reference to those maxima: WorkCover New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) [2000] NSWIRComm 39; (2000) 99 IR 163. See also Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698-699. 63However, the Court is required to apply the principle of totality in determining the appropriate penalty. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate": Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63 citing DA Thomas, Principles of Sentencing (2nd ed, 1979) 56-57; cited with approval in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [18]: see Inspector Dall v Ullrich Aluminium Pty Ltd [2011] NSWIRComm 156 at [78]. 64As the prosecutor quite properly conceded there is a very substantial overlap between the two charges that must be taken into account. But what must also be taken into account is that the defendant had an obligation to ensure both its employees and other workers were not exposed to risk and the penalty must reflect the seriousness of the defendant's failure in that respect. 65I have concluded that, having regard to the discount for the guilty plea, the two offences should attract a penalty of $125,000 in respect of the s 8(1) charge and $175,000 in respect of the s 8(2) charge taking into account the objective and subjective factors referred to in this judgment. Having regard to the totality principle, a penalty of $200,000 appropriately reflects the total criminality involved. The penalty of $200,000 should be split as $83,000 in respect of the s 8(1) offence and $117,000 in respect of the s 8(2) offence. Orders 66The Court makes the following orders: Matter No IRC 280 of 2011 (1)The defendant is found guilty of the offence charged under s 8(1) of the Occupational Health and Safety Act 2000. (2)The defendant is fined an amount of $83,000 with a moiety to the prosecutor. (3)The defendant shall pay the costs of the prosecutor as agreed or assessed. Matter No IRC 281 of 2011 (1)The defendant is found guilty of the offence charged under s 8(2) of the Occupational Health and Safety Act 2000. (2)The defendant is fined an amount of $117,000 with a moiety to the prosecutor. (3)The defendant shall pay the costs of the prosecutor as agreed or assessed. ********** 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: 18 April 2012