Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Christensen v Boom Logistics Ltd [2012] NSWIRComm 95 Hearing dates: 27 July 2012 Decision date: 30 August 2012 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: 1.The offence is proven and a verdict of guilty is entered. 2.The defendant is convicted of the offence, as charged. 3.The defendant is fined an amount of $100,000 with a moiety thereof to the prosecutor. 4.The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(2) of the Occupational Health and Safety Act 2000 - construction and replacement of railway track - use of 200 tonne mobile crane while crane under load - clips removed from rails - non-employee fatally injured and other non-employees seriously injured - general and specific deterrence - plea of guilty - good corporate citizen - penalty imposed - costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Cameron v R [2002] HCA 6; (2002) 209 CLR 339 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31 Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Carmody v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 Morrison v Power Coal Pty Limited (No 3) [2005] NSWIRComm 61 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Category: Principal judgment Parties: Inspector Madeline Christensen (Prosecutor) Boom Logistics Ltd (Defendant) Representation: Counsel: Ms A Mitchelmore (Prosecutor) Ms P McDonald SC (Defendant) Solicitors: WorkCover Authority of New South Wales (Prosecutor) Freehills (Defendant) File Number(s): IRC 284 of 2011 Judgment 1Boom Logistics Ltd ("the defendant") is a provider of lifting services and heavy haulage. It has a fleet of over 600 cranes and operates out of approximately 20 depots throughout Australia. 2On or about 17 November 2008, Abigroup Contractors Pty Ltd, contracted the defendant to provide mobile crane hire at a rail corridor near Trevor Street, Telarah in the State of New South Wales ("the site"). The Project involved the construction of track work and miscellaneous work at both Allandale and Farley in the State of New South Wales. 3The defendant supplied a 200 tonne all terrain mobile crane to provide lifting services at the site. 4On 24 March 2009, work was being undertaken at the site, which involved the replacement of a section of railway lines and supporting concrete sleepers. At approximately 9.30pm on 24 March 2009, the crane crew set up the crane to lift "Panel 5" onto the track. Panel 5 weighed 33 tonnes and consisted of three sets of railway tracks. 5"Panel 1", "Panel 2", "Panel 3" and "Panel 4" had been placed in position earlier without issue. Following the lift and movement of the panel to the place of location, 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. 6The crane crew returned the load to the ground to stop the load moving. However, Mr Edward Jones, the crane operator, did not release the entire load from the crane, and visible tension remained on the chains. Of the total load of 37.4 tonnes, including the weight of the chains, 31 tonne remained under weight. Over a period of 20 minutes, discussions took place between representatives of Abigroup and Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Ltd) ("Taylor Railtrack"), (a business operation, undertaking railway construction and maintenance work), and a representative from the Rail and Road Professional Services Pty Ltd. At no stage was any representative of the defendant requested to participate in these discussions. 7Installation workers attempted to realign the panels by removing some of the Pandrol brand clips from the rail and adjusting the rail with the use an excavator. Railway lines are secured to the sleepers by the use of those clips. 8As the installation workers were in the process of removing the Pandrol clips, they removed clips from the rails that were directly under the load of the chain. By removing some of the clips the integrity of the remaining clips weakened leading to extra tension being placed on the remaining clips. This caused a number of rail lines to suddenly spring free from Panel 5 and strike Mr Agamalu Iosefa, Mr Robert Dixon and Mr Mark McDonnell, being labourers employed by GTE Workplace Management Pty Ltd ("GTE"), a labour hire company together with Mr Kyle Ward, a labourer employed by Taylor Railtrack and Mr Adam O'Sullivan, a labourer employed by MVM Rail Pty Ltd ("MVM"), a business which undertakes railway construction. 9Mr Iosefa sustained fatal injuries as a result of the incident. Mr Ward suffered multiple fractures to his right foot with 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 Adam O'Sullivan sustained a severe crush injury to his forearm and ultimately required amputation above the elbow. The charge 10The defendant in an amended application for order was charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("OHS Act") by failing to ensure that persons not in its employment, and in particular Mr Iosefa, Mr Dixon, Mr McDonnell, Mr Ward and Mr O'Sullivan, were not exposed to risks to their health and safety arising from the conduct of its undertaking while at the defendant's place of work. 11The particulars of the risk were: (a)Persons other than the defendant's employees, and in particular Messrs Iosefa, Dixon, McDonnell, Ward and O'Sullivan, were 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 provide and maintain a safe system of work for the task of a crane lifting rail panels, in that it failed to: (i)ensure that the area around which the crane was operating was barricaded off whilst the crane was moving a load, and/or whilst such a load was under weight as required by its Lift Study/Plan; (ii)implement and maintain an adequate system of communication with other subcontractors at the site, in particular Taylor Railtrack, about the movement of loads by crane at the site, and in particular: i.when a load was and was not under weight; ii.that a person may not access a load under weight or perform work on a rail panel under weight; and iii.the risks associated with accessing or working on a rail panel that was still under weight. (iii)ensure that loads which were under weight remained under the continuous supervision of at least one member of the crane crew. (iv)provide a safe work method statement for the task of lifting the rail panels which: i.required the crane crew to communicate with subcontractors on site as to the status of a load attached to a crane; ii.required that persons not access a load whilst it was still under weight; and iii.required that persons not perform work on rail panels before the lift was completed and the load was confirmed to have been fully grounded. (c)The defendant failed to ensure that persons who were working in the vicinity of a load were instructed and informed that only authorised personnel were permitted to work within the barricaded area whilst the crane was moving a load or while a load was under weight. As a result of the defendant's failures 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, Ward and O'Sullivan suffered injuries. 12The defendant pleaded guilty to the offence as charged in the amended application for order. I am satisfied on the evidence, that the defendant is guilty of the offence as charged, and it is appropriate for the plea of guilty to be entered. It follows, therefore, that this judgment is concerned with the question of penalty. Prosecutor's evidence 13Ms A Mitchelmore of counsel, who appeared for the prosecutor, tendered an agreed folder of documents which included an agreed statement of facts which provided: ... 3.The incident occurred at a point on the northern New South Wales rail corridor near Trevor Street, Telarah (identified as 194.385 km north of No.1 platform at Sydney Central Station) ("the site"). 4.This part of the rail corridor is leased to the Australian Rail Track Corporation Ltd ("ARTC") by the New South Wales government, for the purposes of the ARTC managing the railway track infrastructure. 5.The ARTC had embarked upon construction and upgrade works on the Main North Rail Line of the rail corridor at Allandale and Farley. 6.The Allandale to Farley rail work project involved the construction of track work and miscellaneous works and, in particular, the construction of new crossovers at both Allandale (between 204.100km and 204.900 km north of No.1 platform at Sydney Central Station) and Farley (between 194.100 km and 194.800km north of No.1 platform at Sydney Central Station) ("the Project"). 7.A crossover is a pair of switch tracks that connects two parallel rail tracks, allowing a train on one track to cross over to the other. 8.The purpose of the Project was to enable four turnouts to be installed to create two new crossovers between the up and down main north lines at Allandale and Farley. The removal and replacement of existing formation materials under the new crossover positions was also required. 9.The construction activities for the Project commenced at the Allandale site in October/ November 2008 and at the Farley site in March 2009. THE PARTIES Abigroup Contractors Pty Ltd 10.Abigroup Contractors Pty Ltd ("Abigroup") is a national contractor that provides services in the building, road, rail, water, mining services, tunnel, bridge and telecommunications & energy industries.On or about 23 October 2008 the ARTC entered into a contract with Abigroup in relation to the Project. 11.On or about 23 October 2008 the ARTC entered into a contract with Abigroup in relation to the project. Pursuant to the contract between ARTC and Abigroup, Abigroup was appointed the "principal contractor" which "has the same meaning assigned to [it as the term has] under the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulations 2001" and had responsibility for all safety matters at the site. The contract stated that Abigroup had "control over all aspects of the execution of the Contractor's Activities and safety issues at the Site..." 12.Mr Paul Harris, (NSW Rail Manager, Abigroup) was Abigroup's nominated representative under the contract. Mr Harris was the Rail Construction Manager for the Project and was acting as a Shift Manager at the time of the incident. 13.The overall site safety supervisor for the Project was Mr Tony Green (Safety Officer, Abigroup). 14.Abigroup engaged a number of subcontractors to undertake particular activities for the Project, including Boom Logistics and Taylor Railtrack Pty Ltd (now known as Hebron Holdings Pty Ltd). Boom Logistics Ltd 15.Boom Logistics Ltd ("Boom Logistics") is a provider of lifting services and heavy haulage. Boom Logistics has a fleet of over 600 cranes and operates out of approximately 20 depots throughout Australia. 16.On or about 17 November 2008, Abigroup contracted Boom Logistics for the provision of mobile crane hire at the site. 17.Pursuant to the plant hire agreement, Boom Logistics supplied a 200 tonne all terrain mobile crane (unit no.211, reg no 198 I JG) to provide lifting services at the site ("the Crane"). The Crane was required to lift approximately nine pre-fabricated railway panels. 18.The Crane was owned by Boom Sherrin Pty Ltd and was based out of the Boom Logistics Carrington depot at the time of the incident. 19.The Crane was operated by employees of Boom Logistics, who formed one day shift crew and one night shift crew. Each crane crew was comprised of a crane operator and two dogmen. The crane crew on shift at the time of the incident consisted of Mr Edward Jones (Crane Operator), Mr Michael Fetherston (Dogman) and Mr Kim Ford (Dogman). 20.Prior to the incident, Boom Logistics had carried out a substantially similar work for Abigroup at the Allandale site. The work undertaken by Boom Logistics at the Farley site was a continuation of the work conducted at Allandale. Hebron Holdings Pty Ltd (formerly known as Taylor Railtrack Pty Ltd) 21.Taylor Railtrack Pty Ltd ("Taylor Railtrack") operated a business undertaking railway construction and maintenance work. 22.On 1 April 2009 Taylor Railtrack was restructured and all personnel, plant and intellectual property was transferred to Taylor Rail Australia Pty Ltd (ACN 136 182 628). Taylor Railtrack is now known as Hebron Holdings Pty Ltd. 23.On or about 17 November 2008 Taylor Railtrack entered into an agreement with Abigroup to undertake the Farley rail track works and in particular, to install the new crossovers in the rail corridor. 24.The description of works in the Minor Works Agreement between Abigroup and Taylor Railtrack was as follows: "Remove existing plain line track from down line 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" 25.Prior to commencing work on the Farley rail track project, Taylor Railtrack had been involved with the installation of similar rail/sleeper panels. 26.At the time of the incident Taylor Railtrack employed approximately 20 people. A number of these employees were working at the Farley site, including Mr Kyle Ward (Labourer) and Mr Tim Horan (Construction Manager). MVM Rail Pty Ltd 27.MVM Rail Pty Ltd ("MVM") operates a business which undertakes railway construction. 28.Taylor Railtrack engaged MVM to provide labour for the installation works at the Farley site. 29.On or about 16 March 2009 Taylor Railtrack requested that MVM provide a site supervisor (night shifts only), 10 track workers (5 workers per shift) and two welding crews (one crew per shift) for work to be performed at the site. 30.Mr Adam O'Sullivan (Labourer) was one of a number of MVM employees working at the site at the time of the incident. GTE Workplace Management Pty Ltd 31.GTE Workplace Management Pty Ltd ("GTE"), is a labour hire company and recruitment management consultancy. 32.MVM engaged GTE to provide additional installation workers at the site. 33.There were either three or four GTE employees undertaking work at the site at the time of the incident, including Mr Agamalu Iosefa, (Labourer) Mr Robert Dixon, (Labourer) and Mr Mark McDonnell (Labourer). THE WORK BEING PERFORMED 34.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. 35.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, which measured approximately 7.1 metres in length, 300 millimetres in height and 250 millimetres in width. 36.The railway lines were secured to the sleepers by the use of "Pandrol" brand clips. The Pandrol clips consisted of a flat plate (195mm long, 165 mm wide, 5mm thick), 2 side plates (110mm long, 55mm wide, 15mm thick) and 2 round rod metal "pig tail" shaped securing pins (20mm in diameter and 100mm long). 37.The method of moving the prefabricated railway sections at the site was via mobile crane. THE INCIDENT 38.At approximately 7.00 pm on 24 March 2009 the night shift crew commenced work at the site. 39.Shortly thereafter, the crane crew took possession of the Crane and undertook a physical inspection of the rail panels, the track and areas designated for the crane operation. Mr Fetherston (Dogman, Boom Logistics) and Mr Ford (Dogman, Boom Logistics) then began setting up the Crane for lifting in accordance with the Boom Logistics lift study. 40.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 without issue. Panels 1 and 2 had been placed during the day by the day shift crew. 41.At approximately 9.30 pm the crane crew relocated to the next designated area and set up the Crane to lift "Panel 5" onto the track. Panel 5 weighed 33 tonnes and consisted of three sets of railway tracks. 42.In order to lift the panel, two sets of lifting chains (four chains in total) were attached to the rails by Mr Fetherston (Dogman, Boom Logistics) and Mr Ford (Dogman, Boom Logistics). One chain was placed under the second rail and the other chain was placed under the fifth rail. Both of the chains cradled the load around the rails between the sixth and seventh sleepers in from each end and ran underneath the mid rails. 43.At approximately 10.30 pm the crane crew commenced lifting Panel 5 from the lay down area into its position on the track. Following the lift and movement of the Panel to the placement location, 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. 44.The crane crew placed the load on the ground, and the installation workers attempted to realign the panels by removing some of the Pandrol clips from a mid rail and adjusting the rail with the use of an excavator. However, when the crane crew again lifted and attempted to place the Panel it became apparent that the attempt to correct the misalignment had not been successful. 45.A discussion then ensued for approximately 20 minutes between a number of individuals on site, including Mr Harris (NSW Rail Manager, Abigroup), Mr Horan (Construction Manager, Tailor Railtrack), Mr Geoff Drewe (Senior Project Engineer, Abigroup) and Mr Jason Stewart (Survey Technician, Rail and Road Professional Services Pty Ltd). At no stage was any Boom representative requested to participate in this discussion. 46.Mr O'Sullivan (Labourer, MVM Rail) was asked for his opinion, but he did not participate in the final decision-making process as he did not consider it to be part of his role on site. 47.Whilst these discussions were occurring work was suspended. Mr Jones (Crane Operator, Boom Logistics) lowered Panel 5 to the ground, to stop the load from moving. However, Mr Jones did not release all of the load from the Crane and visible tension remained on the chains. Of the total load of 34.7 tonne, 31 tonne remained under weight. 48.Mr Jones (Crane operator, Boom Logistics), who remained in the operators seat of the Crane, stated in a record of interview with a WorkCover Inspector: "At that time I was sitting there, They tried to fit it. It wouldn't fit. They were waiting for a boss to come up and make a final decision. It was sitting in the air just off the ground about 300mm high. Kim [Ford] said put it down so I put it down. The panel weighed 33 tonne and with the hook and lifting gear, 1.7 tonne so I had 34.7 tonne under load. Kim said to put it down so I lowered it to the ground and I winched down to 31 Tonne. I put 3.7 tonne of weight on the ground." 49.At this time, Mr Fetherston (Dogman, Boom Logistics) left the area of the crane for a period to get a cup of coffee for himself and Mr Jones (Crane Operator, Boom Logistics). 50.In his record of interview with a WorkCover Inspector, Mr Ford (Dogman, Boom Logistics) stated that he was standing next to the edge of the panel and said to the installation workers that "there was still weight on the chains so don't do anything before you come and seem(sic) to let me know what you want." 51.Between eight and fifteen persons were at the site immediately prior to the incident, comprising various workers and supervisors. Of the eight persons who were interviewed by WorkCover NSW and asked if they were told by Mr Ford (Dogman, Boom Logistics) that the panel was under weight and that they were not to do anything until Mr Ford was consulted, seven people stated that they did not have a recollection of this being said by Mr Jones. One person said "Its hard to say. He might have". 52.Approximately 20 minutes after the panel was lowered to the ground, a decision was made by the supervisors on site to unclip a number of Pandrol clips so as to remove a further two rails and slide them back into alignment. Either Mr Harris or Mr Horan then instructed the workers to undertake this task. 53.At this stage Mr O'Sullivan (Labourer, MVM Rail) was at the other end of the panel having a "[c]hat with some of his blokes". Mr O'Sullivan was then called over by either Mr Horan or Mr Harris and instructed to unclip some of the rails. 54.Mr O'Sullivan (Labourer, MVM Rail) then directed the installation workers to commence work on removing the Pandrol Clips. 55.All but one of the workers involved in the incident, along with Mr Horan and Mr Harris, were unaware that Panel 5 was still under weight. Prior to giving this instruction and before the commencement of the work, neither Mr Harris (NSW Rail Manager, Abigroup), Mr Horan (Construction Manager, Taylor Railtrack), Mr O'Sullivan, (Labourer, MVM Rail) nor any other person spoke with Mr Ford (Dogman, Boom Logistics), Mr Fetherston (Dogman, Boom Logistics), or Mr Jones (Crane Operator, Boom Logistics) to ascertain whether it was safe to approach the load or remove the Pandrol clips. However, in a record of interview with a WorkCover Inspector, Mr Horan (Construction Manager, Taylor Railtrack) said that he had asked a dogman to drop the load approximately 20 minutes before the incident, whilst they worked out how to fix the problem. 56.Immediately prior to the incident, Mr Fetherston (Dogman, Boom Logistics) was standing immediately in front the Crane. Mr Jones (Crane Operator, Boom Logistics) was seated inside the cabin of the Crane but was not looking at the panel at the time of the incident. Mr Ford (Dogman, Boom Logistics) was standing at the edge of the load. He had his back to the panel and was facing in the direction of the Abigroup supervisor's hut looking for the foreman to walk up. 57.A number of installation workers then commenced removing the Pandrol clips from the rails. These workers included Mr O'Sullivan (Labourer, MVM Rail), Mr Iosefa (Labourer, GTE), Mr Dixon (Labourer, GTE), Mr McDonnell (Labourer, GTE), and Mr Ward (Labourer, Taylor Railtrack). 58.As 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. By removing some of the clips the integrity of the remaining clips weakened, leading to extra tension being placed on the remaining clips. A number of rail lines suddenly sprung free from the Panel and struck Mr Iosefa (Labourer, GTE), Mr Ward (Labourer, Tailor Railtrack), Mr Dixon (Labourer, GTE), and Mr McDonnell (Labourer, GTE). 59.Mr Ford stated that he "heard some banging and as I turned around, before I could get hold of Joe [Edward Jones] to let some weight off, that's when it sprang up." 60.Mr Fetherston saw "three to five workers on the panel and I heard three loud bangs and that's when the railway lines folded up on the men". Immediately prior to the incident he had seen a number of persons near the panel, including various workers and supervisors, at both ends of the panel. 61.Mr Iosefa (Labourer, GTE) sustained fatal injuries as a result of the incident. 6.2Mr Ward (Labourer, Tailor Railtrack) suffered multiple fractures to his right foot, cuts and bruising. Mr Dixon (Labourer, GTE) sustained a broken right leg. Mr McDonnell (Labourer, GTE).received a laceration to the head, a broken shoulder, a broken ankle and (unspecified) injuries to his calf muscle. Mr O'Sullivan (Labourer, MVM Rail) sustained a severe crush injury to his forearm and ultimately required amputation above the elbow. INVESTIGATION OF THE INCIDENT 63.On 25 March 2009, Inspector David Barker and Inspector Graeme Aldred from WorkCover NSW attended the incident site. Inspector Barker and Inspector Aldred made observations contained in their respective Factual Inspection Reports. Attached and marked with the letter "A" is a copy of the Factual Inspection Report of Inspector Barker dated 25 March 2009. Attached and marked with the letter "B" is a copy of the Factual Inspection Report of Inspector Aldred dated 27 March 2009. 64.During the course of the inspection at the incident site, Inspector Aldred and Inspector Barker took a number of photographs. Attached and marked with the letter "C" is a copy of the photographs of Inspector Aldred dated 25 March 2009. Attached and marked with the letter "D" is a copy of the photographs of Inspector Barker dated 25 March 2009. SYSTEM OF WORK PRIOR TO THE INCIDENT Abigroup Risk Assessment and Safe Work Method Statements 65.Abigroup was the principal contractor and had control of the site at the time of the incident. 66.Abigroup had a documented OHS management system in place at the time of the incident. This included various project management plans for the Farley track works, an Integrated Quality, Safety & Training Plan, and a rail project incident management & emergency response plan. 67.On 3 March 2009 Abigroup conducted a risk assessment, in conjunction with the ARTC, in relation to the works to be undertaken at the Farley site. 68.The risk assessment did not identify any risk of injury to workers in relation to the movement of loads by cranes on the site. 69.Mr Patrick Cini (Safety Co-ordinator, Abigroup), Mr Green (Safety Officer, Abigroup). and Mr Drewe (Senior Project Engineer, Abigroup) stated that Abigroup's risk assessment system required: risk assessments to be undertaken at the start of the project; before each task, when a task changed; and when problems were encountered during a job. There was also a requirement that the risk assessment be documented. 70.Abigroup did not conduct a risk assessment in relation to the task of correcting the misalignment of Panel 5 and as such did not consider the risk associated with removing the Pandrol clips from the panel, which was still attached to the crane and was, accordingly, potentially under weight. 71.Alternatively Abigroup did not ensure that its subcontractors conducted a risk assessment in relation to the task of correcting the panel misalignment. 72.Abigroup prepared a number of safe work method statements ("SWMS") for the work to be undertaken at the site, including an SWMS for, respectively, "Working within the Rail Corridor", "General Earthworks for Ground Crews" and "Re-timbering Sleepers". Abigroup did not prepare a SWMS in relation to the task of panel placements. Rather, Abigroup relied upon the SWMS's prepared by the specialist contractors it engaged. 73.Abigroup required the sub-contractors to provide them with a copy of their SWMS's prior to commencing work at the site and had a full time safety officer (Mr Cini) who reviewed the SWMS's to ensure that they met the requirements of the company's site safety management plan. 74.Abigroup received and reviewed the SWMS's of Taylor Railtrack. 75.Abigroup received a Lift Study Plan and Job Safety Analysis from Boom Logistics but did not obtain a written SWMS prior to the company commencing work at the site. System of Work 76.Abigroup participated in and agreed with the decision to remove Pandrol clips from a number of rails on Panel 5, so as to correct the misalignment between the panels. 77.Abigroup did not undertake a risk assessment of the work involved in removing Pandrol clips from rails on Panel 5, nor did it cause or require a risk assessment to be undertaken, before that work commenced. 78.Abigroup did not confirm the status of Panel 5, in terms of whether or not it was under weight, before permitting and/or instructing the installation workers to perform work on the Panel, and in particular, work that involved removing Pandrol clips from the rails on the Panel. 79.Abigroup did not inform Boom Logistics, or ensure that Boom Logistics was informed, of the decision that had been made to remove Pandrol clips from rails on Panel 5, before the proposed work commenced. 80.Abigroup did not ensure that an adequate system of communication was in place between its subcontractors, and in particular Boom Logistics and Taylor Railtrack, in relation to the work being performed at the site and in particular as to the movement of loads at the site and the identification of risks arising from that task. 81.Abigroup did not monitor or otherwise ensure that its subcontractors maintained and enforced a method of work which required that all persons in the vicinity of the Crane remained outside the barricaded area surrounding the Crane, whilst the Crane was in operation and/or whilst a load was under weight. Boom Logistics Ltd Lift Study Plan, Job Safety Analysis & SWMS 82.Prior to commencing work at the site Boom Logistics undertook a risk assessment and prepared a Job Safety Analysis ("JSA") for the installation of rail sections at the site. The crane crew would review the JSA each day on site and would undertake planning/assessment relative to the lift study prior to commencing a lift. 83.Attached and marked with the letter "E" is a copy of the Boom Logistics Job Safety Analysis JSA No. 57965 for Crane Operations: Installation of Rail Sections as per Lift Study. 84.The JSA lists as a job step "lower load to rest position" and identifies "crush hand or part of body" as a potential hazard. The control measures identified are as follows: "Body and limbs clear of load and lifting gear prior to lift. Authorised people only in lift areas. Dogman/CP directs lift and informs Operator. Load stable before unhooking." 85.The JSA also lists "people, vehicles in working area" as a hazard for the job step of "Pre-start (103) conducted on the crane prior to lift to ensure the crane is safe to use". The JSA outlines the following control measures in relation to this hazard: "Witches hats or barrier tape placed around crane work area to exclude persons in possible drop zone. Observer appointed." 86.At the time of the incident the area surrounding the Crane was not barricaded and Boom Logistics did not ensure that the installation workers remained clear of the lift area while the load was under weight. 87.Boom Logistics also developed a "Lift Study Plan" for a 200 tonne mobile crane to perform work at the rail corridor. The Lift Study Plan outlined the cranage and rigging requirements for each job as well as a lift procedure and safety notes. 88.Attached and marked with the letter "F" is a copy of the Boom Logistics Lift Study/Plan for Installation of 9 Rail Sections at Farley Rail Crossover for Abigroup, using 1 x 200 tonne crane. 89.The lift study plan was approved by Abigroup. 90.Abigroup did not require Boom Logistics to prepare a SWMS for the handling of panels at the site. Mr Forrest (Branch Manager Newcastle, Boom Logistics) claimed that there was no request made by Abigroup for the preparation of a SWMS. System of Work 91.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. 92.Following a number of unsuccessful attempts to re-align Panel 5, Mr Ford (Dogman, Boom Logistics) directed Mr Jones (Crane Operator, Boom Logistics) 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. 93.The installation workers did not receive, or recall, 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. 94.Boom Logistics did not ensure that the load under weight remained under the continuous supervision of at least one member of the crane crew. Information and Instruction 95.Mr Forrest (Branch Manager Newcastle, Boom Logistics stated that prior to the incident, the policy of Boom Logistics in relation to persons accessing a load under weight was to advise others to keep clear of the work area during lift operations. No specific directions were given to the crane crew in relation to persons accessing a panel under weight, other than the direction that the crane crew would advise others to keep clear of any lifting operations at all times. 96.At the time of the incident Boom Logistics did not ensure that persons who were working in the vicinity of a load were instructed and informed that only authorised personnel were permitted to work within the barricaded area whilst the crane was moving a load or while a load was under weight. Taylor Railtrack Pty Ltd SWMS 97.Taylor Rail prepared a number of SWMS's for the work to be undertaken at the site, including a SWMS for "Turnout Installation" (SWMS 017-03), "Turnout Construction" (SWMS 024-03) and "Take-up Track" (SWMS 015-03). Attached and marked with the letter "G" is a copy of the Taylor Railtrack Pty Ltd Safe Work Method Statement SWMS 017-03 for Turnout Installation. Attached and marked with the letter "H" is a copy of the Taylor Railtrack Pty Ltd Safe Work Method Statement SWMS 024-03 for Turnout Construction. Attached and marked with the letter "I" is a copy of the Taylor Railtrack Pty Ltd Safe Work Method Statement SWMS 015-03 for Take-up Track. 98.The SWMS's addressed the tasks of lifting out track panels, panel installation, pandrol clip installation and the movement of rails/components into position. 99.The SWMS's for Turnout Installation identified the hazard of being struck by plant panels for the task of lifting out track panels and outlines 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. 100.The SWMS for Turnout Installation and Turnout Construction also identifies 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. System of Work 101.Mr Horan (Construction Manager, Tailor Railtrack), 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 confirm that the panel was not under weight before installation workers moved on to the Panel to remove the Pandrol clips. 102.Taylor Railtrack did not implement and maintain an adequate system of communication with Boom Logistics in relation to the movement of loads at the site, and in particular as to: when a load was and was not under weight; work that it proposed be carried out by workers on loads that were still attached to a crane; and whether there were any risks associated with such work. 103.Taylor Railtrack did not ensure that its employees and the workers supplied by MVM and GTE maintained a safe distance from the range of the Crane, in the nature of a "barricaded area" whilst the Crane was in operation and/or a load was under weight. 104.Taylor Railtrack did not confirm whether the rail panel was under weight prior to instructing its employees and the workers supplied by MVM and GTE to commence work on the panel, and in particular work that involved removing Pandrol clips that were securing the rails to the sleepers. 105.Taylor Railtrack did not ensure that its employees and the workers supplied by MVM and GTE did not access or perform work on a rail panel, including the removal of Pandrol clips that were securing the rails, whilst the panel was still under weight. 106.Taylor Railtrack did not ensure that its employees and the workers supplied by MVM and GTE did not remove Pandrol clips from rails attached to a panel that was still under weight. Information, Instruction and Training 107.On 23 March 2009, Taylor Railtrack conducted a toolbox meeting with the work crew, consisting of Taylor Railtrack, MVM and GTE workers. During the toolbox meeting, Taylor Railtrack's SWMS's were reviewed. 108.Taylor Railtrack did not ensure that its employees and subcontractors were provided with sufficient information and instruction with respect to the movement of loads at the site. 109.In particular, Taylor Railtrack failed to ensure its employees and subcontractors were informed and instructed to maintain safe working distances from the range in which they could be struck by a load, whilst the Crane was in operation or a load was under weight. Further Taylor Railtrack did not ensure that its employees and subcontractors were informed of the risks associated with accessing a panel that was still under weight. 110.Mr Horan (Construction Manager, Tailor Railtrack), claimed that the installation workers were given instructions in relation to the movement and placement of panels prior to commencing work at the site. According to Mr Horan, Mr Yates (Team Leader, Taylor Railtrack) provided these instructions to the Taylor Rail crew and Mr O'Sullivan (Labourer, MVM Rail) provided instructions to the MVM/GTE crew. 111.Mr Yates (Team Leader, Taylor Railtrack) stated however that he did not provide the Taylor Railtrack workers with any instructions regarding working safely near the crane and load. 112.Mr Ward (Labourer, Tailor Railtrack) stated that prior to commencing work at the site, Taylor Railtrack gave him rough instructions and training for the work to be performed at the site. He does not recall who, within the company, gave him the training and instruction but claimed that they explained what he had to do and how to do it. 113.Taylor Railtrack did not ensure that all of the workers supplied by its subcontractors had undertaken training in track construction works and panel placement and that the workers were appropriately skilled to perform the task of installing rail panels at the site. MVM Supervision 114.MVM had approximately 10 employees performing installation work at the site and had contracted approximately 3 additional workers to assist with the installation work at the site. 115.Pursuant to the agreement between Taylor Railtrack and MVM, MVM was required to provide a supervisor for the night shift crew. 116.MVM did not however appoint a supervisor. 117.MVM claimed that Mr O'Sullivan (Labourer, MVM Rail) was acting as a leading hand at the site, although he was not performing a supervisory role. 118.Mr O'Sullivan (Labourer, MVM Rail) stated that he did not feel that he had a supervisory role at the site, although he supposed that he may have been responsible for supervising the MVM and GTE workers performing labour at the site. GTE Risk assessment and SWMS 119.GTE did not undertake a job safety analysis or risk assessment for the work to be performed at the site. Further GTE did not prepare a SWMS. 120.The only documents prepared by GTE related to the terms and conditions of the placement of its workers with MVM. 121.Ms Irene Winkler (National OHS and WorkCover Manager, GTE) stated that GTE employees were required to adhere to the host employer's SWMS's and that following the initial agreement with the host employer, GTE requests their risk assessments and SWMS's. 122.GTE did not however receive a copy of the Taylor Rail SWMS's prior to the incident, and as such had no input into the SWMS. System of Work 123.GTE did not have a system of work in place at the site. Rather it was GTE's system that their workers follow and adhere to the host employer's policies, procedures and safe work method statements. 124.GTE claimed that it sent company supervisors or managers to workplaces where their employees were performing work, and consulted with the host employer supervisors. 125.Although the site visits referred to were scheduled to occur prior to work commencing on the site, GTE did not conduct a site visit prior to its employees commencing work at the Farley site. 126.GTE was not aware of the work that was being undertaken at the site, nor was it aware of the nature of the work that its employees were required to perform in relation to the rail panels. Information, Instruction and Training 127.GTE did not provide any special training, information or instructions to its workers regarding the work they were to perform at the site. 128.Furthermore GTE did not consult with its workers in relation to the panel work they were required to perform. 129.Mr Dixon (Labourer, GTE) stated that he did not receive any instructions or training for the work that he was required to undertake and that the company did not provide any instructions or information regarding access to a rail panel whilst it was still under weight. 130.Mr McDonnell (Labourer, GTE) had not undertaken any specific training in relation to track works. 131.Mr Iosefa (Labourer, GTE) possessed a WorkCover certificate in OHS General Induction for Construction Work in NSW, and an ARTC National Safety Awareness Certificate. He completed these courses on 13 February 2009 and 17 February 2009 respectively. 132.GTE did not know whether Mr Iosefa (Labourer, GTE) received any specific instructions in relation to the work he was required to perform at the site or whether he had conducted this type of panel work before. 133.Mr Brian Lucas (NSW Rail Manager, GTE) stated that to his knowledge the GTE employees, Messrs Iosefa (Labourer, GTE), Dixon (Labourer, GTE) and McDonnell (Labourer, GTE), had not undertaken this type of panel work prior to the incident. Mr Dixon stated that he had worked on similar jobs in the past, while Mr McDonnell confirmed that he had not performed this kind of panel placement before. Supervision 134.GTE stated that MVM, and in particular Mr O'Sullivan (Labourer, MVM Rail), was responsible for the supervision of GTE workers at the site. According to Mr Lucas (NSW Rail Manager, GTE) , the company was rarely asked to supply supervisors as the majority of the work force was made up of labourers and they usually worked under the client's supervision. 135.Mr McDonnell (Labourer, GTE) stated that he was not sure whether his site supervisor was Mr O'Sullivan (Labourer, MVM Rail) or a gentleman from Taylor Rail. SYSTEM OF WORK AFTER THE INCIDENT 136.Boom Logistics revised its Job Safety Analysis the day after the incident. The revised JSA required: An extension of 3 metres to the exclusion zone for all personnel whilst a crane is in operation or weight is on the chains; and all Pandrol clips to be in place before the lifting of panels. Attached and marked with the letter "J" is a copy of the Boom Logistics Job Safety Analysis JSA No. 57966 for Crane Operations, Installation of Rail Section as per Lift Study. 137.Boom Logistics also developed and documented two SWMS's for future work to be performed at the site, namely a SWMS for "Crane - lift and load/unload" and "Relocating rail". 138.The SWMS "Crane - lift and load/unload" included the following hazard controls: Load is to be rigged with 6 legs, individually revved around rail. All personnel except dogman to remain 3 metres away from load or further if determined, until dogman indicates that tension is released from the slings. Personnel are not to walk on load while it still has tension on it. Attached and marked with the letter "K" is a copy of the Boom Logistics Safe Work Method Statement SWMS 001 for General Crane - lift, load/unload and the Boom Logistics Safe Work Method Statement SWMS 002 for Relocating rail. Co-operation with WorkCover 139.The defendant co-operated with WorkCover NSW during the investigation. The defendant's criminal history 140.The defendant has no prior convictions under Occupational Health and Safety legislation in NSW. 14The tender bundle also contained the following documents: A.A factual Inspection Report of Inspector David Barker dated 25 March 2009. B.A factual Inspection Report of Inspector Aldred dated 27 March 2009. C.23 colour photographs taken by Inspector Aldred on 25 March 2009 showing the crane involved in the incident; the cranes lifting blocks; slings and chain attachments; the rail panel and the rail securing devices known as Pandrol clips. D.6 colour photographs taken by Inspector Barker on 25 March 2009 showing access to the rail corridor, the crane with extended boom, lowered crane ropes, block and slings/chains. E.The Boom Logistics Job Safety Analysis for Crane Operations JSA No. 57965 dated 24 March 2009. F.The Boom Logistics Lift Study/Plan for Installation of 9 Rail Sections at Farley Crossover dated 24 March 2009. G.The Taylor Railtrack Safe Work Method Statement SWMS 017-03 for Turnout Installation dated 11 November 2008. H.The Taylor Railtrack Safe Work Method Statement SWMS 024-03 for Turnout Construction dated 11 November 2008. I.The Taylor Railtrack Safe Work Method Statement SWMS 015-03 for Take-up Track dated 11 November 2008. J.The Boom Logistics Job Safety Analysis JSA No 57966 for Crane Operations, installation of Rail Section as per Lift Study dated 25 March 2009. K.The Boom Logistics Safe Work Method Statement SWMS No 001 for General Crane - lift, load/unload dated 6 April 2009. L.Australian Securities and Investments Corporation Company Search for Boom Logistics Ltd dated 12 July 2012. M.The WorkCover NSW Prior Convictions statement for Boom Logistics showing no prior convictions dated 12 July 2012. Defendant's evidence 15Ms P McDonald SC appeared for the defendant. Ms McDonald read an affidavit of Anthony Gerard Raby, who is employed as the General Manager of the defendant and authorised to make the affidavit based on his own knowledge of the incident report, internal records and conversations with relevant personnel. 16Mr Raby set out his employment history and qualifications the defendant's business. It was incorporated in December 2000 and is a listed company on the Australian Stock Exchange. He stated the defendant currently employs 293 employees and at the time of the incident employed 250 employees. Its workforce includes supervisors, operators, riggers, dogmen, mechanics and fitters. It also employs a team of specialist drafting engineers and experienced lift supervisors who assess, design and sequence the required lifts. 17Mr Raby stated that the defendant took safety extremely seriously and accepted its responsibility to provide and maintain a safe working environment. The incident had had a significant impact throughout the defendant, which he said expressed its sincere regret and offered its apology to the family of the deceased worker for the impact the incident had upon them. It also expressed its sincere regret and apologies to the injured workers and their families. 18Mr Raby gave evidence about the defendant's commitment to safety. It includes a dedicated Board Committee, the Health, Safety, Environment and Quality Committee, which meets at least four times a year and is attended by designated Directors, the Chief Executive Officer and the General Manager, Safety, Health, Environment and Quality. The Committee's charter was annexed to the affidavit. It includes that the Committee will review the ongoing health and safety procedures of the defendant and monitor its effective health and safety management; consider information relating to hazards and risks, including systems and processes and resources to eliminate or control risks. 19The management of safety at the defendant is driven by the safety leadership team of which Mr Raby is a member, together with designated Director, the Chief Executive Officer, and the General Manager of Safety, Health, Environment and Quality. A copy of its Charter was annexed to the affidavit. It includes reviewing all incidents, including near misses; reviewing audit reports; providing leadership on key safety initiatives; reviewing safety statistics and reviewing trends within the crane and associated industries and providing leadership to all levels within the organisation on the importance of safety. 20Also annexed was a copy of the defendant's Code of Conduct which stated: BOOM employees value safety above all else. Safety should never be compromised to meet operational targets or profit driven objectives. BOOM management and employees are committed to achieving zero harm to employees, third party personnel and the environment. ... 21Mr Raby then described the defendant's safety management. It included that from January 2009 the defendant replaced its State based policies with a National health and safety policy. A copy of that Policy was annexed, together with the National Health Safety Environment and Quality Manual. Also annexed was a copy of the New South Wales Safety, Health, Environment and Quality Manual which was in place at the time of the incident. It was amended to reflect the introduction of the National Framework. It provides a detailed summary of the safety procedures and safety activities that apply in New South Wales. It includes that each of the defendant's depots has a Health and Safety Committee; toolbox talks; Job Safety Analysis ("JSA"); job communication requirements; risk elimination and control; safety inspections; new employee induction; ongoing safety and refresher training and competency assessments and reviews. A copy of this document was annexed. 22Mr Raby then described the training provided by the defendant to ensure competency of its employees. This included refresher training. Training records of three of the defendant's employees were annexed. Also annexed was a copy of the Training Session JSA and the Employee Induction Program. The defendant also requires prior to performing certain lifts, the completion of a Lift Study/Plan as well as a JSA. The Lift Study/Plan details the movement of the crane and the load during the lift process. It also reinforces its safety procedures through toolbox talks. 23Since November 2006, the defendant has maintained certification to the Australian Standard/New Zealand Standard (AS/NZS) 4801:2001 Occupational health and safety management systems - Specification with guidance for use standard. AS 4801 sets out the elements required for a safety management system to achieve best practice standards in the management of safety. A copy of the Certification was annexed to the affidavit. 24The defendant is audited yearly by independent external and accredited safety auditors to gain its AS 4801 Certification. 25Mr Raby stated to continuously improve its safety standards, the defendant also proactively looks at safety issues and trends within the crane industry. In 2005, the defendant introduced what is called the CraneSafe initiative. It and has subsequently developed two other safety projects, being the Franna Crane Load Reduction and the Fatal and Catastrophic Risk Standard. 26CraneSafe is an initiative of the Crane Industry Council of Australia, the peak national body of the crane industry. Key aspects of the CraneSafe program include independently accredited CraneSafe inspectors who inspect the company's cranes. The inspections are designed to detect any mechanical, hydraulic and electrical faults. A copy of the Registration Certificate for a CraneSafe inspection was annexed. The system operates Australia wide. 27The Franna Crane Load Reduction was introduced in response to industry concerns regarding the stability of Franna Cranes. These are "pick and carry" mobile cranes that operate without stabilisers and accordingly have the potential to become unstable and tip over. The defendant implemented a safety alert, which was communicated to internal and external stakeholders in respect of Franna Cranes. 28It is currently undertaking a second Project which is a safety review in respect of knowledge of risks that are most likely to cause a fatality or other catastrophic event. This review is known as the Fatal and Catastrophic Risk Standards Review. Based on the initial findings of the Review, the defendant identified an opportunity to consolidate the various processes and procedures to create a new industry standard that deals with these high risk areas. The new high standard represents best practice within the crane industry and is intended to reduce the safety risk to workers operating in and around cranes. 29The safety review concluded that there should be three control zones for work areas: the drop zone; the work zone and the fall zone. The next step is to develop additional control procedures that restrict access and detail the types of activities that can be performed within each control zone. The defendant is currently making arrangements to continue working with other operators within the industry and the Crane Industry Council of Australia to develop this standard into a nationally recognised standard. 30Mr Raby detailed his knowledge of the incident that occurred on 24 March 2009, which reflected what was contained in the agreed statement of facts. He stated that approximately 100 workers would have been on the site at any given time, across the number of different contractors engaged by Abigroup. Personnel engaged included project mangers; engineers; work supervisors; plant operators for track maintenance equipment, earth moving equipment and mobile cranes; fettlers; labourers, and electrical and signalling installers. 31Mr Raby observed that all of the work was carried out over a 48 hour period when the rail line was shut down. The rail line is a critical part of transport infrastructure as it carries both passenger trains to Newcastle and coal trains from the Hunter Valley to the Port of Newcastle. 32Mr Raby stated all of the night shift crew participated in the shift toolbox talk; had a handover meeting with the day shift crane crew; completed the JSA relating to lifts to be performed on the shift, and reviewed the Lift Study/Plan to ensure that they were aware of the requirements for their lifts. Copies of the JSA were annexed to the affidavit together with a copy of the Lift Study/Plan, together with a copy of the 12 Monthly Assessment Report for the 200 tonne all terrain crane. 33Mr Raby detailed the actions taken post incident. This included Mr Steve Hardy, the New South Wales State Safety Manager immediately attending the site after the incident to ensure the welfare of the defendant's employees. Mr Hardy was joined by Mr Robert Bower, the Sales and Project Manager for the defendant. The employees provided statements to the police and WorkCover. Mr Hardy and Mr Bower drove the employees to their homes. The defendant's employees received counselling by Emergency Services and an external professional counsellor was engaged. Prior to any further work being performed, the JSA was reviewed and additional controls were put in place to protect the safety of all workers. A review of the Lift Study/Plan was also conducted. Copies of these documents together with a record of a toolbox talk, which was held a the Newcastle Depot on 26 March 2009 to address the incident and reinforce the safety arrangements of the defendant were annexed to the affidavit. 34Mr Raby stated that the defendant's management and supervisors continually reinforce the importance of safety with reference often being made to the incident. In 2011, he commenced a series of one hour one on one, or small group safety discussions with all employees across New South Wales. The discussions are focused on personal safety behaviour that must be exhibited by all employees. the defendant has reviewed its risk identification and control systems as part of its continuous improvement activities and in response to the incident. It also identified two key areas for improving its risk identification and control systems, being the separation of the generic, SWMS into a slew and non-slew crane operations SWMS, and the addition of the "Take 5" procedure. This procedure identifies risks associated with the work being carried out when a change to the process occurs. The procedure focuses on prompting the employee to step back and take a few moments to examine the effect the change will have on the safety associated with work and to then ensure that controls are in place to address these risks. These procedures work together to ensure that the defendant's employees identify the hazards and risks associated with the work being undertaken. A copy of the "Take 5" procedure was annexed to the affidavit. 35Mr Raby stated that the defendant has a long standing involvement with local communities throughout New South Wales with finance totalling over $5000 per year. In the Hunter Valley region the defendant has provided financial support to the local Rugby and Swimming Associations in Newcastle and has provided financial support to the local Ambulance and Police Services. 36A major initiative that the defendant has been involved in is the ongoing partnership with Orica to provide financial support to the Newcastle Orthopaedics School. The defendant is assisting to improve the indigenous participation rate in the mining and construction industries within the Pilbara region. Relevant principles 37The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act. Their Honours stated at [8] - [15]: [8]The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9]In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10]The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11]The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) ("Capral") 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability 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 to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.' [12]On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd [1999] 92 IR 188 (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13]It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14]The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.' [15]In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).' Consideration 38The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the evidence. 39As the agreed statement of facts discloses, the defendant was involved in rail track work which included the replacement of a section of railway lines and supporting concrete sleepers. The work involved the lifting into place, with the use of a mobile crane, a rail panel that weighed 33 tonnes and consisted of three sets of rail tracks. The defendant was engaged to carry out this work by the principal contractor on the site, Abigroup. The crane crew on shift at the time of the incident consisted of Mr Jones, a crane operator, and two dogmen, Mr Featherstone and Mr Ford. 40Abigroup engaged Taylor Railtrack, as a specialist contractor, to undertake the track work. At the time of the incident, it employed approximately 20 employees. In addition to its employees, Taylor Railtrack engaged MVM to provide labour for the installation works at the site. In turn, MVM engaged GTE to provide additional installation workers. 41As the crane crew commenced lifting Panel 5 into its position on the track 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. The load was placed on the ground and installation workers attempted to realign the panels by removing some of the Pandrol clips from the mid rail. The crane crew again lifted the panel and attempted to place it into position. However, this was unsuccessful, as the misalignment was not corrected. 42When the panel was returned to the ground, it was left under weight to stop the load from moving. Visible tension remained on the chains and of the total load of 34.7 tonne, 31 tonne remained under weight. A discussion then ensued for 20 minutes between a number of individuals, which did not include any employee of the defendant, in respect of how the misalignment could be addressed. A decision was taken to remove Pandrol clips from the rails. As this task was being undertaken, workers were directly under the load of the chain. As the clips were removed, apparently, the integrity of the remaining clips weakened, leading to excessive tension being placed upon the other clips which resulted in a number of the rail lines suddenly springing free from the panel and striking various workers. 43At the time of the incident the area surrounding the crane was not barricaded and the defendant did not ensure that the installation workers remained clear of the lift area while the load was under weight, nor did it inform them that it was under load. This was contrary to the defendant's JSA (see [82] - [86] of statement of agreed facts). Furthermore, the defendant did not ensure that the load under weight remained under the continuous supervision of at least one member of the crane crew. It was these failures that gave rise to the risk to the health and safety of the installation workers. In addition, the defendant had not prepared a Safe Work Method Statement ("SWMS") in relation to the lifting and handling of the rail panels. The installation workers did not receive, or recall receiving, any instructions from the crane crew in relation to the movement of the panels at the site, nor did they receive any instructions in relation to accessing the area where a panel was being manoeuvered, or not accessing a panel, while it was still under weight. Clearly, the risk to health and safety, which manifested itself on the day of the incident, occurred because there was no documented SWMS, or site safety management plan, in place in respect of preventing access to an area where a panel was being manoeuvred, or while still under weight. 44Ms McDonald submitted in mitigation of the objective seriousness of the offence that the work being conducted by the defendant was only a small part of the overall Project. This is clearly correct. Abigroup undertook the obligations and responsibilities of the principal contractor as set out under the OHS Act and the regulations. It had control over all aspects of the execution of the contractors' activities and safety issues at the site. Abigroup personnel, as the agreed statement of facts discloses, appointed the Rail Construction Manager for the Project and the Safety Supervisor who was responsible for the overall safety of the Project. 45In considering the culpability of the defendant, Ms McDonald submitted that the following factors were relevant: (i)Boom Logistics had systems in place and the systems were approved by Abigroup. (ii)The system involved the preparation of a Lift study and a job safety analysis. Employees were trained in the preparation and use of JSAs. JSA was prepared for the work being undertaken. (iii)Abigroup did not require the preparation of a SWMS by Boom Logistics. (iv)The Boom Logistics system also involved the advising of others to keep clear of the work area during a lift - this was the system that had been adopted during the previous lifts of panels 1 - 4. (v)The communication system in operation at the site was the creation and responsibility of Abigroup as the principal contractor. (vi)Boom Logistics personnel were not part of the discussions between Abigroup personnel and other workers about how to resolve the issue of the non alignment of panel 5. (vii)Boom Logistics personnel were not told of the remedy devised of the installation workers unclipping a number of the pandrol clips; (viii)Boom Logistics workers did not abandon the load - at all times Mr Jones was in the crane cabin and Mr Ford was on the ground near the load. Mr Featherstone did leave the area during the 20 minutes but returned before the incident occurred. 46With the exception of (v), I agree that these factors impact upon the defendant's culpability. As I have already observed the risk arose from the failure of the defendant to have systems in place that would have ensured that there was not a risk of injury to the installation workers by accessing the panel while it was under weight. 47Ms McDonald also submitted that there was no compliance by Abigroup with its occupational health and safety system. The realignment of Panel 5 was a new task and no risk assessment was undertaken as required by their system. Although Abigroup should have required an SWMS from the defendant, the defendant should have ensured that one was in place, as it is now. Such a system would have dealt with an event, which precluded the panel being placed in its correct position. There was clearly a failure by the other contractors on the site to involve the defendant in discussions regarding how the issue with Panel 5 should be addressed; make enquiries about the load, and inform the defendant of the recommencement of work. In addition, MVM was to provide a supervisor for the night shift. However, no supervisor was provided. Similarly, it appears from the evidence that GTE did not have any systems in place, but relied on those required by the principal contractor, Abigroup. These factors, in my view, diminish the culpability of this defendant. 48I have earlier referred to the principle of foreseeability as a factor in determining the objective seriousness of an offence. See Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 - 63. The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being considered to be more serious in nature: Capral at 81 - 82; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 79. 49In my view, it was reasonably foreseeable that there was a danger of serious injury in conducting the movement of the panels by crane in the absence of the defendant ensuring that the area around which the crane was operating was barricaded while the crane was moving a load, and/or while such a load was under weight as required by the Lift Study Plan of the defendant. 50The Lift Study Plan clearly indicates that the defendant appreciated that there was a risk to safety if a failure to barricade occurred. The defendant failed to ensure compliance with the Plan. In addition, there was a failure to implement and maintain an adequate system of communication with the other subcontractors at the site in respect of the movement of loads by the crane, particularly that a person may not access a load under weight, or perform work on a rail panel under weight. 51The risk of serious injury which the possibility of access carried with it, made it critical for the load to remain under continuous supervision by at least one member of the crane crew. That did not occur. Although the crane operator did not leave the crane and the other members of the crane crew remained in the vicinity of the crane when discussions were occurring in respect of how to proceed, none of the members of the crew were properly supervising the crane while it was still under weight from the load. 52It was reasonably foreseeable that if none of the crew was observing the crane under the load, a situation of potential danger and risk to the health and safety of workers could arise in respect of persons accessing the panel still under weight, to which the crane crew could not react swiftly and appropriately. 53It was also reasonably foreseeable that there was a risk of serious injury in the absence of instruction and information provided by the defendant to persons working in the vicinity of the crane, and about the need to remain outside of the area of the crane's operation if the crane was moving or the load was under weight. 54Although Mr Ford, a dogman employed by the defendant, said that he issued an instruction to the installation workers, none of the eight persons who were interviewed by the prosecutor about receipt of this instruction could positively recall it having been given. Only one accepted the possibility that it had been given. 55In the absence of a clear system of communication between the defendant's employees and Taylor Railtrack, which was responsible for the track work, or Abigroup, which was in control of the site, the risk of serious injury was reasonably foreseeable. 56Furthermore, an SWMS may have provided independent guidance to persons working in the vicinity of the crane as to the procedures that were to be followed when a panel was being lifted into place. 57Taken as a whole, these matters clearly demonstrate that there was a reasonably foreseeable risk of injury. There was also the consideration that a number of workers were seriously injured, with one fatality. 58It will also be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken. As I have indicated simple and effective measures were available which would have identified or otherwise reduced the risk to the workers' health and safety. 59Such considerations manifest the overall objective seriousness of the offence. 60The measures that the defendant has implemented since the offence also demonstrate the availability of steps that could have been taken to eliminate, or to reduce the risk. 61The prosecutor accepted that the contribution of other employers aside from the defendant must be considered. The purpose of such consideration is not to reduce the culpability of the defendant in any sharing or proportionate way of an overall penalty, but rather as a factor assisting in the determination of the real culpability of the defendant for the offence charged: Inspector Carmody v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316 at [46]. 62The contribution of other entitites may be considered in mitigation: Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [241]. 63The agreed statement of facts outlined the systems of work adopted by the other employers who were present at the site and their role in the events that took place on 24 March 2009. Ms McDonald referred to Boland J's judgment in sentencing Taylor Railtrack: Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31. 64Senior counsel submitted, correctly in my view, that I was not bound by his Honour's findings in determining the sentence for this defendant. Taylor Railtrack was fined $117,000 in respect of a breach of s 8(2) of the OHS Act. General deterrence 65I consider it is appropriate to once again draw attention to the need for employers and contractors in the construction industry, particularly involving railroad, tunnel, bridge and building work where lifting services are required, to be constantly vigilant of the need to ensure that employees and non-employees are not exposed to risks to their health and safety when operating cranes. 66I accept the submission of Ms McDonald that it has not been highlighted in this case as it has been in other cases that the contravention involved a failure to observe specific provisions of a statute or draw attention to particular problems arising in a particular industry: Morrison v Power Coal Pty Limited (No 3) [2005] NSWIRComm 61 at [101]. However, the installation workers were exposed to serious risks to their safety by the failure of the defendant to follow its JSA. It is therefore appropriate that I include in the penalty an element for general deterrence. Specific deterrence 67I accept in light of the evidence given by Mr Raby, this is not a case which calls for the imposition of some additional significant punishment aimed at deterring the defendant from further offending against the OHS Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues, so that persons are not exposed to risks to their health and safety. The attitude of the defendant to workplace safety and the procedures that it had in place prior to the incident (a JSA and a lift study plan) and subsequently are impressive and are relevant to specific deterrence. However, as the defendant is still operating, I include a component in the penalty for specific deterrence. Subjective factors 68Ms McDonald submitted that the subjective factors pertaining to the defendant were "very strong". 69Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 provides for mitigating factors to be taken into account in determining the appropriate sentence. Relevant for these proceedings are the following subparagraphs: (f)the offender was a person of good character [Boom Logistics has no prior convictions]; (g)the offender is unlikely to re-offend; (h)the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise; (i)the remorse shown by the offender for the offence; (j)the offender has shown remorse for the offence by making reparation for any injury, loss or damage or any other manner, (k)the plea of guilty by the offender; (m)assistance by the offender to law enforcement authorities (as provided by section 23). The defendant is of good character 70The defendant has no prior convictions although it operates in an inherently dangerous industry. The occupational health and safety systems referred to in the evidence of Mr Raby and the changes that occurred after the incident demonstrate, in my view, that it has a history of very good industrial citizenship which I take into account. 71There was an occupational health and safety system in operation at the time of the incident. I accept that it was a comprehensive system which commenced at Board level of the defendant and included the creation of committees and a safety leadership team. 72I also accept that the defendant is a good community citizen as demonstrated by its financial and non-financial contributions to charities and community organisations as referred to in the evidence of Mr Raby. I further agree with the observations of Kavanagh J in Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295 at [23] that a court can give positive consideration to the corporate reputation and personal reputation of its directors and find that it has probitive force to allow a measure of mitigation of penalty. 73I find that the offender for the reasons already outlined in this judgment is unlikely to reoffend. 74I also find that the offender has shown remorse for the offence, responded to the incident with concern and formally expressed that concern and remorse to the court through Mr Raby. Senior management was present in court during the sentencing hearing. Plea of guilty by the offender 75The defendant entered a formal plea of guilty to the amended charge at the earliest opportunity. It is therefore entitled to a discount of 25 per cent as a result of the utilitarian benefits offered by the plea: Cameron v R [2002] HCA 6; (2002) 209 CLR 339; R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. 76The prosecutor acknowledged that the defendant had co-operated with the WorkCover Authority of New South Wales during its investigation of the incident. 77The maximum penalty in respect of the defendant is $550,000. Taking into account the seriousness of the offence, the subjective factors referred to earlier, and applying the principles of parity, I impose a fine of $100,000. I observe that absent the defendant's impressive approach to occupational health and safety, together with the additional steps it took after the incident, including that it endeavours to be a leader in its industry, the penalty would have been greater. 78The prosecutor seeks a moiety and costs, which I propose to grant. Orders 79I make the following orders: 1.The offence is proven and a verdict of guilty is entered. 2.The defendant is convicted of the offence, as charged. 3.The defendant is fined an amount of $100,000 with a moiety thereof to the prosecutor. 4.The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as 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: 30 August 2012