Industrial Relations Commission New South Wales Medium Neutral Citation: Nash v Perilya Broken Hill Limited [2013] NSWIRComm 42 Hearing dates: 9 and 10 May 2013 Decision date: 05 June 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: The Court makes the following orders: (1) The defendant, Perilya Broken Hill Limited, is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $260,000. (3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court. (4) Costs are reserved. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecution for breach of s 8(1) of Occupational Health and Safety Act 2000 - Mining Industry - Heavy vehicle - Employee involved in accident whilst operating plant namely, IT Carrier NFL 15 - Not possible to establish, beyond reasonable doubt, cause of accident - Plea of guilty - Defendant convicted of offence - Penalty imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) WorkCover Authority (NSW) (Inspector Maddaford) v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048 Morrison v Coal Operations Australia Limited (No. 2) [2005] NSWIRComm 96; (2005) 141 IR 465 Morrison v Perilya Broken Hill Limited [2007] NSWIRComm 115 R v Boney (unreported, NSW Court of Criminal Appeal, 22 July 1991 R v Hutchins (1957) 75 WN (NSW) 75 R v Kennedy (unreported, NSW Court of Criminal Appeal, 29 May 1990) Riley v Australian Grader Hire Pty Limited [2001] NSWIRComm 31; (2001) 103 IR 143 WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 Category: Principal judgment Parties: Jennifer Ann Nash (Prosecutor) Perilya Broken Hill Limited (Defendant) Representation: Mr D O'Neil of counsel (Prosecutor) Mr B Hodgkinson, SC with Mr M Shume of counsel (Defendant) Crown Solicitors Office (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): IRC 718 of 2010 Judgment 1Perilya Broken Hill Limited ("the defendant") has pleaded guilty to a charge under s 8(1) of the Occupational Health and Safety Act 2000 that on 4 August 2008 it failed to ensure the safety of employees at its Southern Operations Mine at Broken Hill. The charge was brought by Jennifer Ann Nash, Director, Mine Safety Performance, NSW Department of Trade and Investment, Regional Infrastructure and Services in an amended application for order filed in Court on 13 December 2012. 2The charge related to an accident in which Mr Rodney Flight was involved whilst he was operating plant, being IT carrier NFL 15 ("NFL 15"). According to the Agreed Statement of Facts it was not possible to establish, beyond reasonable doubt, the cause of the accident. 3The amended charge, to which the defendant pleaded guilty, alleged as follows, namely that the defendant: [B]eing an employer on 4 August 2008 at Perilya Broken Hill Southern Operations Mine failed by its acts and omissions particularised below to ensure the health, safety and welfare at work of its employees who operated plant being IT carrier NFL 15 (NFL 15) including Rodney Flight, contrary to Section 8(1) of the OH&S Act. Particulars of risk That employees operating NFL 15 were at risk of being involved in a collision resulting in injury to an employee. The Defendant's failings A. The Defendant failed to ensure that NFL 15 when used by its employees was properly maintained. B. The Defendant failed to put in place a safe system of work which ensured NFL 15 was properly inspected prior to use. Measures the Defendant should have taken C. The Defendant should have taken the following measures in order to ensure plant was properly inspected and maintained: (i) The Defendant should have provided appropriate forms for pre-start checks relating to NFL 15. (ii) The Defendant should have ensured that operators knew how to properly inspect NFL 15 and document those inspections prior to use of NFL 15. (iii) The Defendant should have ensured that there was in place and enforced an effective system to audit the inspection and maintenance of NFL 15. (iv) The Defendant should have ensured that NFL 15 when used by its employees was properly maintained. D. The Defendant's failure to properly inspect and maintain NFL 15 was demonstrated by the following: (i) The brake master cylinder overstroke indicators were in the "popped" out position. (ii) The service brake warning light and alarm were not operational. (iii) The fault alarm located behind the EMS was not operational. (iv) There was a loose pipe fitting at the T-piece at the top of the rear axle housing reducing the stopping capacity of the service brake system. (v) The front right brake pipe was corroded. The omissions as set out in 'A' and 'B' above, created a risk to health and safety of employees using NFL 15 on 4 August 2008, including Rodney Flight. Agreed Statement of Facts 4The Agreed Statement of Facts (ASF) indicated that Mr Flight was employed by the defendant and worked in one of the service crews that provided those services to the production division, a division that undertook the actual mining operations. Mine services look after all plant, equipment and mine services associated with the underground infrastructure that supports mining. The type of work performed by the underground service crew included clean up jobs, pipe work and building walls on edges of stopes. 5The ASF described NFL 15 and its purpose. An integrated tool carrier is a multipurpose rubber tyred front-end loader, with a quick hitch arrangement on the boom for attaching a variety of implements, including a bucket, forklift tines and a workbasket. On 4 August 2008, Mr Flight operated NFL 15, which was fitted with a seat belt. 6It was an agreed fact that as at 4 August 2008, NFL15 had the following deficiencies: (i) The brake master cylinder overstroke indicators were in the "popped out" position (ii) The service brake warning light was not operational (iii) The fault alarm located behind the electronic monitoring system ("EMS") panel was not operational (iv) There was a loose pipe fitting at the T-piece at the top of the rear axle housing reducing the stopping capacity of the service brake system (v) The front right brake pipe was corroded 7In connection with the overstroke indicators it was explained that there is an indicator rod on each service brake master cylinder. When the operator depresses the brake pedal a valve is activated that can provide compressed air to the piston which pushes the piston rod forward, compressing the brake fluid in the chamber and through the brake lines to the wheel brake cylinders. If there is a leak of fluid either from the fluid chamber passing through the seal or through leakage in the brake line and/or fitting, then the piston can continue to travel forward and push the piston overstroke indicator rod into what is described as the "popped out" position. The ASF continued: Once in the popped out position the overstroke indicator rod activates the brake overstroke switch causing the red fault light to light up on the EMS panel and a fault alarm to sound. The brake overstroke switches on both service brake master cylinders of NFL 15 were not connected at the master cylinder switch. IT carriers, as manufactured, are fitted with a standard EMS. IT carrier NFL 15 was fitted with a non-standard EMS panel. The non-standard EMS panel was in poor condition. There was a red light on the dash which was most likely the light indicating faults in the service brake hydraulics. This light was not in working order. A fault alarm located behind the EMS panel was inoperative due to a broken wire. As the brake overstroke switches were not connected, neither the operational fault alarm nor the red light on the EMS panel would operate. The non-connected brake overstroke switches and the inoperative fault alarm meant that an operator would not be warned if there was a fault in either the front and/or rear service brake systems. 8The ASF addressed the deficiency of the loose pipe fitting at the T-piece at the top of the rear axle housing reducing the stopping capacity of the service brake system. It was stated: There was a slow leak of brake fluid at the T-piece of the brake fluid line on the top of the rear axle housing due to a nut being "loose by about a ¼ of a turn". The leak was easily remedied by tightening the fitting. This slow brake fluid loss reduced the stopping capacity of the rear service brake system. 9In connection with the corroded front right brake pipe, the ASF stated: The front right brake pipe was severely corroded in several places. Due to the level of corrosion there was a risk of the pipe developing a leak and brake fluid leaking from the pipe which if it occurred would result in a further reduction in NFL 15's braking capacity. 10The ASF proceeded to describe the defendant's systems failures. Dealing first with the maintenance system, the ASF acknowledged that as at 4 August 2008, the defendant had a maintenance system in place that included weekly services and services after equipment had been in use for a specified number of hours. In addition to the scheduled services there was a requirement that each operator undertake pre-start checks. 11Information relevant to the maintenance system was kept on a computer maintenance management system known as "Maximo", which was operated by the maintenance planners with input from the mine control centre. The Maximo system provided a database and generated maintenance work orders. The Maximo system was designed to track repairs and provide reports. In addition, the Maximo system produced preventative maintenance orders. There was also a "Maximofloorplan" (schedule of allocated jobs), which printed out the work that was to be done by the relevant maintenance team on each shift. 12After relating these facts the ASF then stated: Despite having a maintenance system in place the defendant failed to ensure NFL 15 was properly maintained. The Defendant failed to have in place and enforce an effective system to audit the maintenance of NFL 15. Whilst there were some informal checks of the maintenance system conducted by employees from time to time there was no formal effective approach to auditing whether the maintenance system was functioning effectively so as to specifically ensure that NFL 15 was properly maintained when it was to be used by the Defendants employees. 13The second of the defendant's systems failures dealt with in the ASF related to the requirement that operators undertake pre-start checks. The operator was required to complete a checklist. The checklist was to be forwarded to the Mine Control Centre. The operator was also required to verbally report any fault detected to the Mine Control Centre. The defendant did not know whether each operator always verbally reported faults to the Mine Control Centre. The employees at the Mine Control Centre were to log each fault (using an equipment breakdown notification form) into the Maximo system. 14The ASF stated: Maintenance staff did not always receive notification of information contained within pre-start check documentation. It is not clear whether this was due to the documentation not always being forwarded to the MCC or whether received information was not always properly processed through the MCC. As a result of failures within the system there were occasions when the maintenance staff were not aware of the information placed on pre-start check forms in relation to the equipment on which the maintenance staff were working. An example of this occurred on 3 August 2008 when the apprentice who worked on NFL15 on that day was not aware that there had been specifically recorded, on a pre-start check sheet on 2 August 2008, the fact that one of NFL 15's brake fluid reservoirs was empty. 15The third system failure referred to in the ASF concerned pre-start check forms and the auditing of those forms. It was agreed that operators were using a pre-start check form that did not enable them to properly document their pre-start inspections on IT carriers. Further, that: Of the 8 IT carriers operated by Perilya, 3 had brake fluid reservoirs. The other 5 IT carriers did not have brake fluid reservoirs, as their brake systems were fully enclosed hydraulic systems. Mr Flight stated that he did not know that NFL 15 had a brake fluid reservoir, even though he had completed on 4 August 2008 the light vehicle operator shift check sheet indicating that he had checked the brake fluid level. Other employees thought that the braking system was a fully enclosed hydraulic system on all IT carriers. The operation and maintenance manual applicable to NFL 15 contains the standard EMS panel. The manual notes the manner in which to test the EMS panel. There was no such information for the non-standard EMS panel in NFL 15. It was not possible for NFL 15 to pass an appropriately conducted pre-start check on 4 August 2008 due to the non-connection between the brake master cylinder and the EMS which meant the fault alarm and fault light did not work. There are no faults indicated on the pre-start form completed by Mr Flight on 4 August 2008. The Defendant did not have in place an effective system to audit the pre-start checks and inspections of NFL 15. 16In relation to risk the ASF stated: As at 4 August 2008 Mr Flight whilst operating NFL 15 was at risk of collision with objects, walls, vehicles and persons and was at risk of suffering serious injury, including death, as a result of any such collision. Mr Flight was at risk due to: (i) the stopping capacity of the rear service brake system being reduced. (ii) The risk of further reduction in braking capacity of the service brake system due to the corroded front right brake pipe. (iii) The non-operational warning light and alarm in relation to the service brake system preventing Mr Flight being warned of the fault in the service brake system. On 4 August 2008 Mr Flight was involved in an accident whilst operating NFL 15. It is not possible to establish, beyond reasonable doubt, the cause of the accident. Evidence For the prosecutor 17In addition to the ASF Mr D O'Neil of counsel for the prosecutor tendered a bundle of documents that consisted of: 1. Cavpower Operation and Maintenance Manual, IT18 [NFL 15]. 2. General Introduction to IT Carrier NFL 15 (video recording 15 August 2008). 3. Photographs by Alwyn Piggot of IT Carrier NFL 15, photograph of seatbelt in use. 4. Photographs of IT Carrier NFL 15 service brake master cylinders by Keith Johnson. 5. Photograph of panel lights on NFL 15. 6. Photographs of various componentry on NFL 15. 7. Two photographs of brake pipe with caked material and hole. 8. NFL 15 maintenance history, Maximo. 9. NFL 15 Work Order 393620, 3 August 2008. 10. NFL 15 Light Vehicle Operator Check Sheet PER1002 (pre start checks). 11. Extracts from an expert report of Keith Johnson, Mine Mechanical Engineer regarding the testing of NFL 15 relied on by the prosecutor namely, pages 336, 337, 338 of the exhibit and paragraphs 6.88, 6.122 of the report and two photographs of the front and rear brake reservoirs at pages 345 and 346 of the exhibit. 12. NSW Trade and Investment Department record of defendant's prior convictions. 13. WorkCover record of defendant's prior convictions. 18Also tendered by the prosecutor was: (a) a "Task Observation IT Operation" form dated 14 November 2006, which appears to reflect an observation of Mr Flight's knowledge and competence in operating an IT Carrier; (b) a photograph of the front brake reservoir of NFL 15 extracted from Mr Keith Johnson's report showing the reservoir was empty of useable brake fluid; (c) a photograph of the rear brake reservoir of NFL 15 extracted from Mr Keith Johnson's report showing the brake fluid level was low but not empty; (c) paragraph 6.64 extracted from Mr Keith Johnson's report regarding park/secondary brake stall tests indicating failure of the park/secondary brake. For the defendant 19The affidavit of Peter James Lean was read. At the time of the accident Mr Lean was Manager of Business Improvement for the defendant. At the time of making his affidavit Mr Lean was Manager Safety and Training for the defendant. 20Mr Lean described the operations of the defendant and then proceeded to describe NFL 15. He described the servicing system for the defendant's vehicles including IT carriers: 8. NFL 15 was used from 2002 until 4 August 2008 by Perilya BH. Perilya BH had a system in place with the intention of ensuring that all of its equipment including NFL 15 was in good serviceable condition when used. The system involved: 8.1 Operator inspections - each operator was required to complete a pre-start check sheet at the commencement of each shift; 8.2 Weekly servicing - each week vehicles were required to be serviced by the maintenance department following a set schedule which took approximately eight hours; and 8.3 Longer term scheduled maintenance - each machine underwent scheduled maintenance based on hourly use. 21Mr Lean described the inspections and maintenance performed on NFL 15 in the two months prior to 4 August 2008: 9.1 Operator Inspections - (a) June 2008: 4, 5, 11 x 2, 12, 13, 14, 15, 16, 17 x 3, 19, 20, 25, 26, 30; (b) July 2008: 3, 4, 6, 14, 15, 17, 25; (c) August 2008: 2 x 2, 3, 4 x 2. ... 9.2 Weekly inspections: (a) June 2008: 3, 24; (b) July 2008: 13, 20 27; (c) August 2008: 3. ... 9.3 Scheduled Maintenance: (a) 27 June 2008 - 500 hour service. ... 9.4 Breakdown maintenance: (a) 6 June 2008; (b) 22 July 2008. ... 22In relation to NFL 15's brakes, Mr Lean's evidence was that the following inspection and maintenance took place: 10.1 On each pre-start check the operator was required to perform a brake test which involved placing NFL 15 in second gear and applying the accelerator to 1200 revs and ensuring the brake held the machine; 10.2 On each weekly inspection a brake test was performed, ... 10.3 On the 500 hour service NFL 15 failed its brake test and as a result the master cylinder for the front service brakes was replaced on 27 June 2008... 10.4 On 22 July 2008 NFL 15 presented for a breakdown maintenance and the following work was conducted in accordance with work order 392207; replacement of brake shoes and brake pipe; brake adjustment and the brakes were bled.... 23Mr Lean described what occurred on 3 August 2008, the day before the accident, regarding the servicing of NFL 15 and the failure by an apprentice to inspect or reset the overstroke switches. 11. On 3 August 2008, the day before the incident, NFL 15 was scheduled for and had its weekly preventative service performed. The weekly service is allocated 8 hours to complete the work plus an additional half hour to conduct a brake and gas test. On this day the service was conducted by a third year apprentice named Simon Clemens and it was the responsibility of Warwick Sayers the maintenance supervisor, to ensure that the work was completed in accordance with the weekly service work order checklist. Mr Clemens had performed services on IT carriers before and was often assisted by an experienced tradesman. This was the first time Mr Clemens had performed a service specifically on NFL 15. On this day he sought assistance with some tasks from a fellow worker as he had not previously worked on NFL 15 or a similar model. 12. During this service Mr Clemens, did not inspect or reset the overstroke switches. Mr Clemens was not aware that the overstroke switches required checking because he normally worked on newer model IT carriers which have a different braking system. 24Mr Lean described what he understood to have occurred during the shift on which the accident occurred: 13. On 7pm 4 August 2008 Mr Flight was assigned to assist in the building of sandfill barricades on the 17 sub level. This was his first night shift after having had a five day break. He went to the 13 level to collect the CAT IT 18 machine (NFL 15) to assist in this task. Prior to moving NFL 15 he completed a pre-start check sheet. 14. As at 4 August 2008 Perilya BH had in place two types of pre-start check sheets. One was titled "Light Vehicle Operator Shift Check Sheet" (PER1002) and the other was titled "Operator Daily Book" (PER1021).... 15. Mr Flight used the PER1002 this document included referenced to checks to be performed on systems that operated on NFL 15. PER1002 is better suited to pre-start checks on NFL 15. NFL 15's braking system was a gravity fed system which has brake fluid canisters located vertically higher than any other part of the braking system. This allows the brake fluid to flow from the canisters towards the active part of the braking system. PER1002 had a specific check item related to braking being "brake fluid level".... 16. On 4 August 2008 at approximately 10.20pm a CAT IT 18 machine (NFL 15) was involved in an incident. It has not been possible to identify the actual cause of the incident. It was identified that Mr Flight was not wearing a seatbelt at the time of the incident.... 17. I participated in an investigation of the incident which took place on the 5 August 2008 at the time NFL 15 was in the position on its side as a consequence of the incident. It was clear that there were no skid marks and further that although NFL 15 had tipped onto its side, it had immediately come to rest and not slid along the road way in that position.... 25Mr Lean described in considerable detail the defendant's Health Safety Environment Management System ("HSEMS"). HSEMS was, indeed, comprehensive and appeared to be well targeted towards preventing risks to the health, safety and welfare of employees. HSEMS was implemented via a number of strategies, namely: The Rules to Live By; Take Time, Take Charge personal risk tool (3TC); Job Safety Analysis (JSA); Workplace risk assessment and controls (WRAC); Hazard identification and control; and Incident and accident investigation. Mr Lean described each of the above in some detail in his affidavit. He also described two other aspects of the defendant's approach to safety management, namely, behavioural management and leadership courses designed to change workplace culture. 26Mr Lean stated that in June 2008, the defendant took steps to engage a maintenance consultant MMS Pty Ltd (MMS), to review and provide advice on enhancements on the maintenance system. The object of the review was to assess the current system against best practice maintenance management system that led to a gap analysis to define the action the defendant should take. 27Mr Lean deposed that following the completion of the review and as a consequence of its finding MMS was engaged in October 2008 to upgrade the defendant's maintenance management systems to reflect best practice. Mr Lean said: The major focus was the introduction of maintenance related processes with an emphasis on greater accountability for all activities, to provide Perilya BH with confidence that all equipment and machinery was proactively maintained and fit for purpose when in use. The total cost of the maintenance system development over the period October 2008 to February 2013 was in excess of $3.3 million. 28Mr Lean also deposed that the pre-start check sheets were redesigned by MMS. He said: The redesigned pre-start check sheet defines the expected operator behaviour and identifies specific responses for three different categories of defects. Perilya BH considers the redesigned pre-start check sheet was an improvement due to: greater content and categorisation of content; requires the operator to mark Y, N or N/A to items; attributes more accountability to the operator; allows for easier auditing. 29In addition to other measures taken to satisfy itself that the check sheets were not only being completed but the actual prescribed checks were being done, the defendant conducted random audits where machines were stopped and operators were required to produce their pre-start safety check sheet. The pre-start safety check sheet was reviewed with the operator and then selected elements of the pre-start safety check were re-done with the operator to confirm that the information contained in the pre-start safety check sheet was accurate and complete. 30Mr Lean explained Safe Work Procedure U407 (SWP U407) and how it has been revised: SWP U407 is a safe work procedure developed to outline the method of equipment safety checks. The SWP was developed a number of years prior to August 2008 and used to train workers how to complete a pre-start check sheet. Review of SWP U407 Equipment Safety Check was made following the incident. The task purpose of SWP U407 is to do a visual and operational pre-start check sheet before any plant or equipment is operated. Additionally the assessment for this SWP was revised and a new competency assessment developed to reflect the redesigned pre-start check sheet. Workers were assessed on their competency to conduct a pre-start check using the new form. 31In relation to underground traffic movements, Mr Lean stated that to allow machinery and equipment to travel on the roadways safely the defendant had conducted a risk assessment. He said that the processes put in place were designed to safely manage the interaction between: moving machinery and other moving machinery; and moving machinery and people - which relies on the segregation of people from machinery. Mr Lean stated that the result of these processes is that it eradicates the opportunity for machinery to come into contact with other machinery and/or people. 32Mr Lean explained SWP U408 "Traffic Control and Communication while Travelling Underground" (SWP U408), which is a procedure that applies to all underground inducted personnel and covers actions and communications when operating mobile equipment underground. He stated that under SWP U408: [W]hen travelling underground operators must follow the following steps: ensure your strobe light and headlights are on before entering down the decline ramp or leaving the plats; carry out brake checks before entering the portal or ramp systems and notify MCC if the brakes fail the test; select the gear range to descend the decline without over speeding the engine, gaining excessive travel speed and having to use the brakes constantly. Heavy equipment must select the low gear required for the journey down to prevent runaways that may occur with gear changing; when a vehicle is about to enter a ramp, the operator must stop and utilise channel 4 of the radio to call and assess if another vehicle is using the ramp. operators must wear a seatbelt in all vehicles. In addition as part of competency training operators are taught to drive to the conditions of the Mine with an absolute maximum speed limit of 30km/h. Under exceptional circumstances operators are instructed to drive machinery against the walls to bring it to a halt. 33Mr Lean described the frequency and priorities of inspections and auditing: Inspections of equipment occur on a number of frequencies and at varying levels of detail by a range of people with different skills; a pre-start check is performed by the operator at the beginning of every shift that the equipment is operated; heavy equipment (trucks, loaders and drills) are inspected every 7 days and serviced every 21 days by suitably qualified tradespeople. This allows identification of any faults in safety critical systems and monitoring of performance critical items so that maintenance is planned and prepared for; Light vehicles (mine utilities and ITs) are serviced every seven days by suitably qualified tradespeople. Auditing of the maintenance system was managed by the maintenance planners through Maximo. The maintenance planners check all job plan sheets to identify any tasks not completed or any new maintenance tasks identified. All maintenance tasks are prioritised according to the category; Safety critical systems to be held out of service and repaired within 24 hours; Performance affecting systems to be scheduled for attention by the Maintenance Supervisor with a week; Deteriorating conditions identified for scheduling by the Maintenance Planner for completion at the next suitable service. 34In relation to Mr Flight, Mr Lean said he commenced working for the defendant in June 2002 when the mine was purchased from Pasminco. Mr Flight completed the Perilya BH underground induction assessment 1 August 2002 and was retrained and assessed in this induction on 6 December 2007. Mr Flight possessed a number of certificates of competencies to operate heavy trucks and light vehicles underground. His main work activities during his time at Perilya BH involved the operation of machinery and equipment. 35Mr Lean further stated: Perilya BH had in place a requirement that all operators of mobile machinery must wear seat belts whilst operating machinery. SWP U408 "Traffic Control and Communication while Travelling Underground" specifically provides at step 5 that seat belts must be worn in all vehicles. Flight was last signed off as competent in SWP U408 on 10 May 2008. Mr Flight had been signed off three times previously on the dates 22 June 2005, 6 July 2006 and 10 May 2008. A task observation was carried out on Mr Flight on the 14 November 2006 in the operation of the NFL 15.Critically this assessment demonstrates that Mr Flight was aware of the requirement to ensure that the operator secures their seatbelt before operating the machine. Further, as part of this assessment Flight completed a pre-start check of the machine. 36Mr Lean described the assistance provided to Mr Flight and his family: Initially - Oct 08: Two x Self-contained cabins in Adelaide for Mr Flights family to utilise; A vehicle was hired for the family to use until early October 2008; All living expenses where met until early October 2008; $5000 was given to the family initially to help with extraordinary purchases in Adelaide; All air travel was paid for, for all immediate family members (5) so they could be present in Adelaide; and A Perilya BH human resource employee was sent to Adelaide to support Mr Flight's family for a period of three weeks. Oct 08 - Apr -09: Six month lease in a three bedroom house and$320 per week; All utilities were covered by Perilya BH; Furniture purchased to the value of $5195 and given to family to keep: a. Double bedroom suit; b. Four x single beds and cupboards/tall boys; c. Washing machine; d. Two x lounges and coffee tables; e. Five piece dinning suit; f. Fridge; $1000 over and above Mr Flight's usual wage was paid to Mr Flight and his partner on a monthly basis for extraordinary costs for the period October 2008 to February 2009; and Travel was provided during this period on the basis of one return trip per family member, per month. Travel totaled 25 flights. General - Michael Purcell, Employee Health and Injury Management Co-ordinator, completed the following on behalf of Perilya BH: a. Mowed the lawns at the houses of Mr Flight, his partner and Mr Flights children; b. Cleaned the rental house in Adelaide ready for inspection; c. Visited family including Mr Flights father weekly; d. Organized the following financial affairs: (i) Commonwealth Bank - arranged for the manager to travel to Adelaide to speak with Mr Flight; and (ii) AMP - arranged for the co-owner of the Broken Hill branch to travel to Adelaide to speak with Mr Flight. 37Mr Lean described the operation of the defendant's Occupational Health and Safety Committee, communication systems regarding safety matters and reporting requirements on safety statistics and safety performance. 38Mr Lean said the defendant had co-operated with the Department of Trade Investment during its investigation into the incident in an appropriate and proper manner. In relation to contrition, Mr Lean said the defendant's Board had authorised him to make the following statement: On behalf of Perilya BH I am authorised to express remorse for these failures. Perilya BH management is particularly regretful of the impact they have had on Mr Flight, the workforce at the mine and within the Broken Hill community. 39Mr Sam Adamson gave expert evidence for the defendant. Mr Adamson is Associate Director - Maintenance with MMS Mining Pty Ltd. This involved various consulting activities including attending numerous mine sites to assess the effectiveness of the maintenance function and provide assistance with implementing maintenance systems for both mobile equipment and fixed plant. Mr Adamson has a trade background in heavy-duty diesel mechanics. Since 2002 he has been working within the mining industry as a maintenance consultant involved in mobile equipment and fixed plant maintenance work at various sites around the world. This has involved general consulting, supervision, coaching, mentoring, trouble-shooting and the application of maintenance systems. Mr Adamson stated: I have had considerable experience working with machinery that is the same Caterpillar model machine as NFL 15. My experience allows me to provide an opinion on a number of issues related to the maintenance and operation of NFL 15. 40Mr Adamson described the braking system of the NFL 15 and in doing so described the overstroke indicator mechanism: An over stroke indicator mechanism is contained within the brake air chamber. The piston in the brake air chamber is designed to travel within a relatively short stroke length when working correctly. If the piston travels close to its maximum stroke the piston pushes a small pin out through the brake chamber housing and in doing so activates a switch which is wired back to a warning light and alarm in a console located to the right hand side of the driver's seat where the Caterpillar EMS would be normally fitted. The pin is also a visual indicator of the over stroke of the piston and will remain in the over stroke indicated position until it is physically reset. EMS is a term used by Caterpillar which refers to an Electronic Monitoring System that is supplied as part of Caterpillar OEM fitment. EMS's that were fitted on open cabin ITs similar to NFL 15 had significant issues with ingress of contaminants associated with the underground environment. A number of these machines were retrofitted with a non OEM monitoring system, for example NFL 15. Over stroke can be a result of: a. bleeding the brakes b. air in the brake hydraulic system c. internal leakage in the master cylinder d. low fluid in the reservoir. e. external leakage in the circuit The over stroke switch on NFL15 is designed to be wired to a retrofitted warning system activating a light and alarm in the event of over stroke. The warning system on NFL 15 is located to the right hand side of the driver's seat. This panel contained the ignition switch, hour meter, light operation switches, red coloured light indicating over stroke, other gauges and electric switches. 41Mr Adamson referred to the braking capacity of NFL 15 on 4 August 2008. He stated, inter alia: I understand from the statement of agreed facts that on the 4 August 2008 NFL 15 had a loose pipe fitting on the Tee piece at the top of the rear axle housing. Any leak in the system has the potential to reduce the stopping capacity of the service brake on that individual circuit. The report indicated that the "tee fitting was loose by about ¼ of a turn". Assuming that this is correct and based on my experience I am of the view that whilst this would reduce the capacity of the rear brake circuit (assuming the circuit had brake fluid in it) it would not have reduced the braking effect significantly. In my view even if the front brake circuit was not operating (no indication of this) the rear brakes, with this defect, would have been able to stop the machine albeit over a greater distance. ... I have not had the opportunity to inspect the brake lines on NFL 15. I have only had the opportunity to observe photographs taken some time after the incident. Because I did not observe the brake lines first hand at the time of the incident it is difficult to provide an opinion as to whether or not the front brake line should have been replaced prior to the incident. The main reason I am reserved about expressing an opinion is the period of time in which the machine sat on the surface prior to the photographs being taken, it is my understanding that the brake line was actually covered with detritus when the machine was parked on the surface. I would have expected the condition of the machine including the brake line to have deteriorated significantly during the period of time that the machine sat unused on the surface. 42Referring to the two pre-start check sheets, Mr Adamson indicated they were inadequate because they did not have a sufficient level of accountability for operators and maintenance to ensure the machines were safe to operate. He said MMS introduced a revised pre-start safety inspection and associated form called Pre-Start Safety Check to record the results of the inspection. Mr Adamson described the improvements represented by the new sheets over the previous sheets and how operators were audited following the introduction of the new check sheets. 43Mr Adamson described the implementation by the defendant of the Work Execution Mechanism (WEM) licensed by Spinifex Resources Pty Ltd. Mr Adamson said WEM is a mechanism to identify, refine and align the various management processes required to deliver the maintenance objective of safe reliable plant and equipment. He stated: WEM is complementary to the existing Maximo Computerised Maintenance Management System (CMMS) being utilised by Perilya BH for maintenance of its mobile fleet. WEM represents a disciplined set of processes together with a logical set of connected activities that enabled Perilya BH to take its maintenance strategy and make it work through collective accountabilities and expectations - resulting in an efficient use of resources and allowing the talent of the people in the business to be realised. The WEM includes 16 elements defined as system standards to drive its application. One of these system standards, "Work Identification", applies to all assets in the underground mobile fleet and maintenance work areas. The purpose of the Work Identification Standard is to establish the means of identifying and communicating work requirements to enable timely and accurate identification, reporting, recording, classification and prioritisation of tasks. This Work Identification Standard provides a hyperlink to the 16 procedures associated with this Standard, such as work order management, asset condition inspection, task assignment, pre-start inspection and pre-start work identification. The Pre-Start - Work Identification procedure, documents the process for identifying and notifying work arising from a pre-start inspection. This work procedure identifies the task, key points, the accountability and associated system documents. One example of a task is: a. "review completed pre-start inspections for outstanding defects." b. It then identifies the key points: i. at start of each shift; ii. identify incomplete pre-start inspection records to operations supervisor; iii. identify outstanding defects; iv. sign completed pre-start inspection as having been reviewed for outstanding defects. c. The accountability for this task is determined as: "Shift Supervisor Mobile Fleet" d. Where relevant an associated system form is hyperlinked to the task. One system form hyperlinked is the Work Priorities matrix. ... To allow for the implementation of the WEM a complete training package has been implemented at Perilya BH. This training package provides for additional online tutorials which personnel can access at any time. WEM includes an audit function to enable individual system standards and system procedures to be audited and the results utilised for continuous improvement of the maintenance processes.... The ability to establish and record Condition Inspections and Compliance Audits within WEM enables Perilya to assess the physical condition of individual assets against documented inspection criteria and assess the level of compliance of individual assets against statutory or other requirement. The result of inspection and audit activity reflects the effectiveness of the maintenance function. 44The defendant also placed reliance on an expert report of Dr Shane Richardson, a mechanical engineer. In the introduction to his report Dr Richardson stated he had: 1. Been asked to provide a report from (sic) you addressing the risk to the driver of an Integrated Tool Carrier Machine (IT Carrier) operator wearing his seatbelt if he struck objects, walls or persons and the capability of the rear brakes to stop the IT Carrier in circumstances where the capacity of the rear service brake system is reduced; 2. Previously been retained to observe other experts carry out inspections and tests and conduct your own inspections and tests on the Integrated Tool Carrier NFL 15 (NFL 15) that was involved in an incident at Perilya's Southern operations on 4 August 2008. Those tests included braking tests on NFL 15. 45Dr Richardson in his report addressed the question of exposure to injury and stated in that respect: The severity of planer (forward, rearward, left and right) vehicle impacts is typically quantified by the magnitude of the change in velocity of the vehicle (or the delta-v). As the change in velocity (or delta-v) increases, the severity of the collision increases and the potential for injury exposure increases. Richards in a United Kingdom study demonstrated a relationship of change in velocity (or delta-v) and increasing injury severity for seat belted passenger car occupants in car to car collisions. The reference to "Richards" was a reference to a study undertaken by D C Richards, entitled "Relationship between Speed and Risk of Fatal Injury: Pedestrians and Car Occupants, Department of Transport, Road Safety Web Publication No.16, http://assets.dft.gov.uk/publications/pgrroadsafety-research-rsrr-theme5-researchreport16-pdf/rswp116.pdf". 46In accordance with his instructions and based on computer modelling, Dr Richardson evaluated the probability of injury if on a flat roadway the IT Carrier: impacted perpendicular to the face of a rock wall; impacted a solid, rigid and impervious wall at an angle of 60 degrees; impacted a solid, rigid and impervious wall at an angle of 30 degrees where the wall impact is likely to result in the IT Carrier rolling over. Dr Richardson also evaluated the probability of injury if the IT Carrier collided with an object, collided with another vehicle or collided with a person. He also estimated injury exposure if the Carrier was ascending or descending an incline. 47Using computer modelling Dr Richardson estimated the highest probability of serious injury would have been 30 percent if the Carrier had impacted perpendicular to the face of a rock wall. The highest probability of fatal injury was 19 per cent with the Carrier travelling in third gear at a change in velocity of 28 and 31 km/h. Where the angle of impact was 30 degrees Dr Richardson estimated the probability of serious injury at a change in velocity of 12 to 13 km/h as one per cent and fatal injury zero per cent. 48In the case of a roll over, Dr Richardson stated: In rollover collisions the risk of injury is a function of both the structural integrity of the vehicle and the effective restraint of the occupant. ... Rollover protection is a function of both effective structure and effective occupant restraint. Based on the post rollover inspections of the ITC, the Rollover Protective Structure (ROPS) of the ITC was not distorted or deformed as a result of the rollover. In the author's opinion the ROPS was structurally effective and sound. In rollover collisions the trip to rest position is an effective indicator of rollover speed. A short trip to rest position indicates a low rollover speed whereas a long trip to rest position indicates a high speed. Using PC-Crash [a computer model] the author: 1. Created a model of the ITC and operator using the multi-body. The operator is restrained by a lap belt to the seat of the ITC. a. The author's survey of the ITC was used to guide the creation of the ITC model b. A human model with PC-Crash was used for the operator. 2. The masses of the multi-body part of the ITC were adjusted so that the ITC mass was 9,400kg, with the front axle mass was 2,500kg and the rear axle mass 6,900kg. 3. The author's survey and the provided survey as well as images of the ITC were used to create the simulated geometry of the ITC. ... The simulation illustrates that a restrained occupant would be partially ejected during a rollover, however the simulated occupant is not caught between the ground and the rolling ITC, there are no indications of gross articulation of the occupant neck/spine. Based on the author's PhD research and the simulations of an ITC collision with a seat belt restrained occupant, the occupant is likely to sustain minor to moderate impact injuries to his head, legs, arms and right side chest due to the occupant flailing whilst being partially ejected. It is possible that the occupant would sustain minor to moderate abdominal injuries from the loading of the seat belt as he is partially ejected from the ITC. Given the geometry and stiffness of the ITC (specifically the ROPS) the operator is unlikely to sustain serious injuries to his neck or spine as these are not grossly loaded nor are they caught between the ground and the rolling vehicle structure. While not demonstrated by the simulations there is a remote possibility that a restrained occupant could sustain serious head, neck or spinal injuries. 49The defendant also tendered two photographs of a brake chamber associated with the operation of the park brake. The photographs showed a dent in the chamber. Mr Adamson explained the potential implications of the dent in his oral evidence: In the photographs you will see that there was a fairly large dent from rock damage into the park brake actuator. So what that would have done is that potentially, if you used the park brake to pull up if you are using the park brake in an emergency situation it gets hot and as it gets hotter the brake spring pulls it on harder because of the expansion. If that dent was in there prior to the incident or happened, I don't. If it happened as part of the incident it should have probably grabbed the piston. But what that potentially did was stopped the piston travelling the full distance. So then as it hit that dent that was in the chamber you would have run out of brakes fairly quickly. Consideration 50In Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145 I addressed the principles to be applied in sentecing a defendant under the Act. I adopt what I there said at [43]-[47]. 51By its plea the defendant has admitted that its employee, Rodney Flight, was put at risk of being involved in a collision and being injured as a result of any such collision. 52The circumstances in which this risk arose were described by Mr Lean in his affidavit: On 4 August 2008 at approximately 10.20pm a CAT IT 18 machine (NFL 15) was involved in an incident. It has not been possible to identify the actual cause of the incident. It was identified that Mr Flight was not wearing a seatbelt at the time of the incident. His failure to wear the seatbelt as required by Perilya BH's SWP U408 increased his risk of injury significantly. I participated in an investigation of the incident which took place on the 5 August 2008 at the time NFL 15 was in the position on its side as a consequence of the incident. It was clear that there were no skid marks and further that although NFL 15 had tipped onto its side, it had immediately come to rest and not slid along the road way in that position. As NFL15 had not skidded along the roadway I formed the view that NFL 15 had been travelling at a slow speed immediately prior to and at the time of the incident. 53It may reasonably be concluded from this evidence, the ASF and the Amended Application for Order that on the evening of 4 August 2008, Mr Flight was operating NFL 15, that Mr Flight was not wearing a seatbelt whilst operating the Carrier, that NFL 15 tipped onto its side, that Mr Flight was exposed to the risk of being involved in a collision resulting in injury as a consequence of the defendant's acts or omissions, but that it was not possible to establish how the Carrier came to be on its side. 54Nowhere in the evidence is there any reference to whether Mr Flight in fact suffered any injury as a result of the risk to which he was exposed as a consequence of the defendant's acts or omissions. According to senior counsel for the defendant the reason for this was that the cause of the accident could not be established. 55What I think counsel meant was that although it had been admitted the defendant's acts or omissions exposed Mr Flight to the risk of injury, it could not be proven that placing Mr Flight at risk led to a particular injury because it could not be established to the relevant standard of proof how any injury might have occurred. In other words, that any injury, if it had occurred, may not have been a direct result of the risk created by the defendant, in which case the Court could not have regard to the injury, or even that injury was sustained, for the purpose of determining whether the seriousness of the injury manifested the degree of seriousness of the risk: see Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [94]. 56It would seem I must accept this submission. The artificiality of it, however, is demonstrated by the fact that although neither the prosecution nor the defendant wished the Court to know whether Mr Flight sustained injury, he and his family were provided with very substantial assistance and support following the incident for a period of about six months including mowing lawns and house cleaning. The explanation for this was that "Mr Flight was involved in an accident." It is an extraordinarily generous employer that would provide such assistance and support for six months because an employee was merely involved in an accident. 57That leaves a situation where although the prosecutor was able to rely on the agreed fact that Mr Flight was at risk of suffering serious injury, including death, the defendant was able to refer to the evidence of Dr Richardson that on any of his scenarios the risk of serious injury or death was relatively low. In the absence of any evidence relating to whether an injury had been suffered by Mr Flight and the nature of that injury, the Court faced the more difficult task of assessing the theoretically based evidence of Dr Richardson in attempting to determine the seriousness of the risk. 58Turning to the defendant's failures to ensure Mr Flight was not exposed to risk, the defendant admitted that it failed to ensure that NFL15 was properly maintained. The maintenance failure was demonstrated by: (a) the brake master cylinder overstroke indicators being in a popped out position; (b) the service brake warning light and alarm being non-operational; (c) a loose pipe fitting at the T-piece at the top of the rear axle; (d) the front right brake pipe being corroded; and (e) that the defendant did not ensure there was in place an effective system to audit the maintenance of NFL15. 59Given the maintenance failures it may reasonably be concluded the Carrier was in poor serviceable condition. 60The defendant further admitted that it failed to put in place a safe system of work so as to ensure NFL15 was properly inspected prior to being used. In this regard the defendant failed to: (a) provide to operators appropriate forms for pre-start checks relating to NFL15; (b) ensure that operators knew how to properly inspect NFL15 and document those inspections prior to use of NFL15; and (c) ensure that there was in place and enforced an effective system to audit the inspections of NFL15. 61As the ASF revealed, the failure to properly maintain the IT Carrier compromised the effectiveness of the braking capacity of the vehicle. This failure was exacerbated, in terms of its implications for safety, by the fact that the warning system on the vehicle in relation to a faulty braking system was not operational. Thus, faulty brakes with reduced braking capacity, and the potential for no braking capacity at all, and no warning system of the danger that existed of faulty brakes. 62In addition, as the ASF identified, the defendant did not have in place an effective system to audit the pre-start checks and inspections of NFL 15. The failure to audit pre-start checks and inspections led to the type of problem referred to in the ASF: Of the 8 IT carriers operated by Perilya, 3 had brake fluid reservoirs. The other 5 IT carriers did not have brake fluid reservoirs, as their brake systems were fully enclosed hydraulic systems. Mr Flight stated that he did not know that NFL 15 had a brake fluid reservoir, even though he had completed on 4 August 2008 the light vehicle operator shift check sheet indicating that he had checked the brake fluid level. Other employees thought that the braking system was a fully enclosed hydraulic system on all IT carriers. 63There was a failure in the communications chain in the defendant's maintenance system that led to the following circumstance described in the ASF: As a result of failures within the system there were occasions when the maintenance staff were not aware of the information placed on pre-start check forms in relation to the equipment on which the maintenance staff were working. An example of this occurred on 3 August 2008 when the apprentice who worked on NFL15 on that day was not aware that there had been specifically recorded, on a pre-start check sheet on 2 August 2008, the fact that one of NFL 15's brake fluid reservoir was empty. 64The maintenance system failures admitted by the defendant were quite fundamental, leading as they did to faulty brakes on a 9 tonne vehicle in circumstances where the vehicle could collide with another vehicle in an underground mine, or a person, or any object or wall in the mine because its brakes were not fully effective and in doing so place the safety and health of the operator of the vehicle at risk. Moreover, the operator could not be aware of the faulty braking system because the warning system was inoperative. 65That leads me to the seriousness of the risk. The defendant submitted that on the basis of Dr Richardson's expert evidence the probability of serious injury or death was low, whichever scenario was applied. Counsel for the prosecutor, however, submitted the Court should attach no weight to those portions of Dr Richardson's report that seek to quantify risk for the following reasons: (a) The Richards study and table (fig 2 of Dr Richardson's report) deal with criteria which the Court should find cannot be applied to the relevant circumstances of a 9-plus ton IT carrier. (b) Richards (the author of the UK study) makes clear in his introduction (as confirmed in Dr Richardson's oral evidence) that variables such as age, gender, biomechanical tolerance, seatbelt wearing, vehicle size and shape, effectiveness of absorbing impact energy and the characteristics of the object hit will impact upon the "injury severity of people involved". (c) The oral evidence of Dr Richardson makes clear there was a much higher risk of serious injury in side-on collisions than front-on collisions. (d) The rollover opinions were limited to seat belt wearing occupants. (e) Dr Richardson conceded the conclusions he drew in relation to rollover were "general" or "blunt". (f) The inability to accurately replicate human movement (see Richardson report pp 31, 32, 36). 66Each of the criticisms made by the prosecutor of Dr Richardson's report has some substance. However, I note, in particular, Dr Richardson was only asked to provide an opinion as to the potential exposure to injury of the operator of an IT Carrier like NFL 15 on the assumption that the operator of the IT Carrier was wearing a seatbelt. He complied with that request. 67The evidence is that Mr Flight was not wearing a seatbelt when he was exposed to the risk. Accordingly, Dr Richardson's report is of no assistance in determining the extent to which Mr Flight was, in fact, exposed to serious injury or death as a consequence of the defendant's acts or omissions. For example, Dr Richardson quoted an American study that stated, "You're 75% less likely to be killed in a rollover crash if you're wearing your safety belt." 68The defendant contended that it had not been charged with failing to ensure Mr Flight was not wearing a seatbelt and that the Court should proceed on the assumption that the operator would wear the seatbelt, given that was the instruction from the defendant. 69There does seem to be somewhat of an inconsistency in the defendant's position in that it contended for the purpose of assessing the likelihood of serious injury or death (and therefore the seriousness of the detriment to safety), the Court should proceed on the assumption that Mr Flight was wearing a seatbelt, but that in assessing the objective seriousness of the offence, the Court should take into account in mitigation that Mr Flight was not wearing a seatbelt. In other words, the defendant wants the Court to accept the risk of serious injury or death was very low because, amongst other things, it is to be assumed Mr Flight was wearing a seatbelt and having made that finding to also find Mr Flight contributed to the risk because he was not wearing a seatbelt. 70In my opinion, given Mr Flight was not wearing a seatbelt, there was every possibility if the Carrier were to roll over that Mr Flight could be ejected from the Carrier and be subject to the risk of the Carrier rolling on top of him or him becoming trapped under the Carrier. The fact he was not wearing a seatbelt increased his exposure to the likelihood of injury or death quite significantly. 71It is a well-established principle that the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry: WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 247 at [257]. It is also well-established that the Act requires employers to be diligent and proactive to ensure the safety of employees and that those obligations are not diminished because of the error or negligence of an employee: Riley v Australian Grader Hire Pty Limited [2001] NSWIRComm 31; (2001) 103 IR 143 at [15]. 72The fact that Mr Flight was not wearing a seatbelt may reflect on the degree of culpability of the defendant for the purposes of sentencing: Riley at [15]. Whether it does so or not, and if so to what extent, will depend on a number of considerations that include the degree to which the defendant sought to meet its obligations under the Act by being diligent and proactive in seeking to ensure that Mr Flight took advantage of a vital piece of safety equipment, namely, the seatbelt. This is particularly so where the defendant in mitigation seeks to rely on Mr Flight's failure to wear the seatbelt. It will also depend on why no seatbelt was worn, whether the employee was required to wear the seatbelt whilst operating the Carrier and whether the employee knew of the requirement to wear a seatbelt. 73The evidence indicates that the defendant required a seatbelt to be worn and that Mr Flight knew of the requirement to wear a seatbelt. There was no evidence as to why the seatbelt was not being worn at the time the risk arose. 74According to Mr Lean's evidence, Mr Flight was last signed off as competent in relation to the procedure to be followed for traffic control and communication whilst travelling underground (which was SWP U408 and which provided for seatbelts to be worn in all vehicles) on 10 May 2008. Mr Lean said that Mr Flight had been signed off three times previously on the dates 22 June 2005, 6 July 2006 and 10 May 2008. These appear to be merely declarations by Mr Flight that he had read U408 and agreed to be bound by it. 75The only time that Mr Flight was actually observed operating an IT Carrier for the purposes of determining whether he was competent was on 14 November 2006. There was no evidence of any random checks on Mr Flight whilst he was operating an IT Carrier to confirm he was complying with the rules in U408, including the wearing of a seatbelt. It seems to me that if the defendant was to meet its obligation of being diligent and proactive in seeking to ensure employees were at all times complying with safety rules, particularly one as important as the wearing of seatbelts, random checks were an essential part of the defendant's safety procedures. 76I accept that had Mr Flight being wearing a seatbelt at the time the risk arose, the probability of him being placed at risk of serious injury or death would have been considerably less than the risk he was exposed to whilst not wearing a seatbelt. In the circumstances, it has to be accepted that Mr Flight's non-compliance with the defendant's clear instruction, of which he was aware, to wear a seatbelt mitigates the objective seriousness of the offence. However, in my opinion, the defendant could have been more diligent and proactive in policing the requirement to wear seatbelts and I have taken that into account in assessing the objective seriousness of the offence. I do so against the background of serious failures on the defendant's part to ensure that NFL15 was properly maintained and to put in place a safe system of work so as to ensure NFL15 was properly inspected prior to being used. Moreover, I have also had regard to the following: (a) the gradient of the decline which carried the mine's transport was 1 in 7; (b) there was a risk that other tool-carrying vehicles would be using the decline at the same time as NFL15; (c) other roadways intersected with the decline, creating the risk of side-on collisions; (d) drivers were instructed to drive into the wall in the circumstances of vehicle runaway; and (e) Mr Adamson's opinion that a pre-accident dent rendered the park brake virtually ineffective. 77In assessing the objective serious of the offence the Court is required to have regard to whether there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; WorkCover Authority of NSW (Inspector Maddaford) v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21 at [88]. See also: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27 per Walton J, Vice-President, approved in Capral Aluminium at 646; Morrison v Coal Operations Australia Limited (No. 2) [2005] NSWIRComm 96; (2005) 141 IR 465 at [11]. 78It was reasonably foreseeable, indeed obvious, that if an operator were allowed to operate a vehicle that was not properly maintained to the extent that its brakes may fail that the operator's safety would be put at risk. The very fact the defendant had an elaborate but flawed system in place to check and maintain its vehicles, including the maintenance of braking systems on those vehicles, shows that the defendant knew of the importance of ensuring the vehicles were roadworthy. The risk in this case was significantly increased by the fact that the warning light and alarm relating to the braking system were inoperative. The steps taken by the defendant after the incident to prevent a recurrence demonstrate the fact there did exist available and feasible measures to avoid the risk. 79That the risk was obvious and measures were available to avert the risk of serious injury or death increases the objective seriousness of the offence. 80The Court is required to give consideration in the sentencing process to general and specific deterrence: Capral. It was held in that case that both aspects of deterrence should normally be given weight of some substance in the sentencing process, "and although there may be exceptional cases ... we would expect such cases to be very rare...." (at [74]). 81There is clearly a case for any sentence to include consideration for an element of general deterrence. Vehicles are commonplace in industry and the importance of ensuring they are properly maintained and checked cannot be overstated if safety is to be paramount, as it must be. It is appropriate to draw the attention of employers generally to this obligation by fixing an appropriate penalty in this case. 82In relation to specific deterrence the objective is to deter the particular offender from repeating the offence. The propensity to re-offend must be considered when determining the weight, if any, to be attached to specific deterrence: Capral at [76]. In Capral it was also stated at [77] that employers must adopt an approach to safety which is pro-active and not merely re-active and that in view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. It was said this was particularly so where the offender conducted a large enterprise which involved inherent risks to safety. 83Weighing in the defendant's favour is the fact that prior to 4 August 2008 it did have in place elaborate maintenance procedures designed to ensure vehicles were checked and properly maintained. The procedures, however, were flawed to the extent they created a serious risk to the safety of Mr Flight. Nevertheless, the defendant must be regarded more favourably in the context of considering specific deterrence than an employer that had no maintenance procedures in place because it indicates the defendant was aware of its safety obligations and had sought to meet those obligations. 84Furthermore, in acknowledging its shortcomings the defendant took commendable steps to review and revise its maintenance procedures to ensure there was no recurrence of the incident that took place on 4 August 2008. 85In considering specific deterrence it is relevant to have regard to the defendant's antecedents. The defendant has one relevant prior conviction that the Court may take into account in determining sentencing (the conviction was in relation to an offence on 28 November 2002 with a penalty imposed and conviction recorded on 8 June 2007: Morrison v Perilya Broken Hill Limited [2007] NSWIRComm 115). 86The defendant has a record of two other convictions for offences committed under the Act on 9 January 2007 and 6 November 2007. Penalties were imposed and convictions recorded on 25 May 2010 and 2 March 2011 respectively. Whilst the two offences were committed in 2007, convictions were not recorded until 2010 and 2011, that is, after the date of the offence in this matter. In considering the sentence in this matter I am to treat the 2007 offences in the manner determined in R v Hutchins (1957) 75 WN (NSW) 75 at 75, namely, that I am entitled to look at the two convictions in relation to the 2007 offences, not for the purpose of imposing a sentence heavier than would otherwise have been imposed, but for the purpose of considering whether the defendant was deserving of lenient treatment: see also R v Kennedy (unreported, NSW Court of Criminal Appeal, 29 May 1990) and R v Boney (unreported, NSW Court of Criminal Appeal, 22 July 1991). 87The defendant's record precludes any leniency or any discounting of any element I might otherwise include in the penalty for specific deterrence if the defendant's record had been a good one. What is more, the defendant is a large enterprise operating in an industry that is notoriously dangerous, that is, the mining industry. There is utility in including in the penalty an element for specific deterrence "as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388. 88Given the prior conviction I earlier referred to the maximum penalty in this case is $825,000. The relevance of the maximum penalty was explained in Markarian v R [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048 at [30] and [31] as follows: Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that: "A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]." It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.... 89There are a number of subjective considerations. The prosecutor conceded it was open to the Court to discount an otherwise appropriate penalty by 25 per cent due to the defendant's plea at the first opportunity to the Amended Application for Order. I propose to adopt the prosecutor's concession. 90I have also taken into account the defendant's cooperation with the prosecuting authority. 91In relation to remorse, I accept Mr Lean's statement in that regard as satisfying the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. In that connection I have also had regard to the commendable support and assistance the defendant provided to Mr Flight and his family. 92Having regard to the objective and subjective considerations in this matter, I have decided that an appropriate penalty is $260,000. Orders 93The Court makes the following orders: (1) The defendant, Perilya Broken Hill Limited, is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $260,000. (3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court. (4) Costs are reserved. ********** Amendments 06 June 2013 - Amendment to representation and name correction Amended paragraphs: Cover sheet and paragraph 36 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: 06 June 2013