District Court New South Wales Medium Neutral Citation: Workcover v Brandown Pty Ltd [2015] NSWDC 261 Hearing dates: 22 April 2015 Date of orders: 27 April 2015 Decision date: 27 April 2015 Jurisdiction: Criminal Before: Judge AC Scotting Decision: (1) The offender is convicted and I impose a fine of $90,000. (2) I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (3) To give effect to the agreement of the parties, I order that the offender pay the prosecutor's costs in the sum of $37,000. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty COSTS – prosecution costs OTHER – dirt and brick recycling – plant – operator – guarding – conveyor – isolating switch – safety – removal – inadequate supervision Legislation Cited: Occupational Health and Safety Act 2000 (NSW) ss. 8(1), 12(b) Crimes Act 1900 (NSW) s.21A Fines Act 1996 (NSW) s.6 Mines Inspection Act 2001 Work Health and Safety Act 2011 Cases Cited: Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Category: Sentence Parties: Workcover Authority (Prosecutor) Brandown Pty Ltd (Offender) Representation: Counsel: Ms J McDonald (Prosecutor) Mr W Nield (Offender) Solicitors: Workcover Authority (Prosecutor) File Number(s): 2013/70920 Judgment 1. Brandown Pty Limited (the offender) has pleaded guilty to an offence that by its acts and/or omissions it failed to ensure the health, safety and welfare of an employee George Laidlaw contrary to section 8(1) Occupational Health and Safety Act 2000 (the Act). 2. The maximum penalty for the offence is 5000 penalty units ($550,000): section 12(1)(b) of the Act. 3. On the sentence hearing, Ms J McDonald appeared for the prosecutor and Mr Neild appeared for the offender. Facts The parties presented an Agreed Statement of Facts, which can be summarised as follows. The offender operated a business recycling materials including dirt, bricks and plastic from its worksite located at Lot 90 Elizabeth Drive Kemps Creek, New South Wales (the site). The offender employed approximately 35 employees and 10 contractors, including Mr Laidlaw, Darlan Bartolome and Brendan Lowe. Mr Laidlaw had been employed by the offender for approximately 12 to 14 months as a full-time plant operator and he usually worked in the recycling plant located at the site. Mr Bartolome had been employed by the offender for approximately 5 years as a fitter/mechanic and was involved in the work undertaken by Mr Laidlaw when he was injured. Mr Lowe was a contractor who was engaged by the offender to act as foreman at the site and to supervise the activities of 30 of its employees. Mr Lowe was an experienced plant operator and supervisor who had over 25 years experience and had been in the foreman/supervisor role at the site for approximately 22 months. On 22 August 2011 Mr Laidlaw commenced work at 6.00am. He was directed by Mr Lowe to work in the Stockpile 4 area of the site and to operate the combined plant which consisted of: a land fill grading machine (the Mustang trammel); a mobile M40 conveyor that took oversized product away from the Mustang (the M40 conveyor); and a mobile M100 conveyor that took fine product away from the Mustang (the M100 conveyor). Mr Laidlaw had not previously worked in this area of the site or with the combined plant. Mr Laidlaw's duties were primarily to operate an excavator to feed material into the Mustang, to be sorted and distributed by the conveyors. Mr Laidlaw's duties included maintaining the operation of the conveyors, including removing any blockages from them. The conveyors were operated by a common diesel engine and hydraulic system. The M40 conveyor was operated by use of the controls of the M100 conveyor. Mr Lowe instructed Mr Bartolome to instruct Mr Laidlaw on the start and stop procedures for the combined plant. Mr Bartolome showed Mr Laidlaw how to start and stop the conveyors. The informal induction given to Mr Laidlaw by Mr Bartolome was not documented and Mr Lowe did not make any enquiry as to the content of that induction. Mr Laidlaw commenced work by cleaning mud off the combined plant that was present as a result of rainfall in the preceding days. At sometime after morning tea, Mr Lowe directed Mr Laidlaw to start feeding the Mustang with the dry land fill to be sorted. Mr Laidlaw used an excavator to put some dirt into the feed hopper of the Mustang, but noticed that the M40 conveyor was becoming blocked and thereby stopping intermittently. Mr Laidlaw used the emergency stop button on the M100 conveyor to stop the combined plant. He attended the fitter's shed, sought assistance from Mr Bartolome and telephoned Mr Lowe. Mr Laidlaw, Mr Bartolome and Mr Lowe then went to the combined plant to clear the blockage. Mr Lowe instructed Mr Laidlaw to shovel dirt off the conveyor. Mr Laidlaw declined and during the course of the ensuing discussion Mr Bartolome climbed onto the conveyor and shovelled dirt from it. At about this time, Mr Lowe returned his car which was approximately 30m away to take a telephone call. Mr Bartolome then went to the control panel of the M100 conveyor which was approximately 10 to 15m away, so that he could start and stop the M40 conveyor on the verbal command of Mr Laidlaw. Mr Bartolome stopped the M40 conveyor by putting it into neutral with the use of a lever control on the M100 conveyor. Whilst the M40 conveyor was disengaged, the engine was still idling. While the M40 conveyor was stopped, Mr Laidlaw used his hands to clear a build-up of material near the tail drum. He reached between the conveyor belt and the tail drum of the M40 conveyor when the conveyor started operating and his right arm was caught and dragged into the tail drum of the combined plant. Mr Laidlaw cried out and Mr Bartolome stopped the M40 conveyor. As a result of the incident, Mr Laidlaw sustained crush injuries and severe lacerations to his right arm, including a fracture to the proximal end of his right radius and ulnar. He underwent surgery on 24 August 2011 where plates and screws were inserted. The offender investigated the incident and found that it had 3 causes: 1. the guarding of the tail drum of the M40 conveyor had been removed and was present in the Stockpile 4 area of the site within about 40m of the combined plant. It was agreed that another employee had observed the tail drum guard in situ on the M40 conveyor approximately 2 weeks before the incident and that to the best of Mr Lowe's recollection it had been in situ until about one week prior to the incident. The offender had a Daily Machine Report (DMR) that included a section to be completed to verify that machinery guards were in place. The offender did not provide adequate supervision to ensure that the DMR was completed by a supervisor, Mr Laidlaw or another employee in relation to the combined plant in the relevant period leading up to the incident; 2. the M40 conveyor had not been isolated. At the time of the incident the conveyor controls were in the neutral position, but it had not been isolated. The isolation of the M40 conveyor was required in order to prevent it from unexpectedly starting to operate, as it did. The isolation of the M40 conveyor required the switching off of the M100 conveyor engine and isolating the batteries; 3. there was no specific Safe Work Procedure for the combined plant. Mr Laidlaw had been given some training relating to his work in the recycling plant, including being given the general warning that conveyors without a guard were a hazard and as to the various isolation procedures to be adopted within the recycling plant. Mr Laidlaw had not been provided with any job specific training, safety information or safety procedures in relation to the combined plant. Mr Laidlaw was not adequately supervised in circumstances where he was working for the first time on unfamiliar machinery. There was no risk assessment conducted on the day the incident to identify the risk and to replace the guarding. There was no emergency stop button or lanyard on the M40 conveyor. There was no specific isolation procedure for the M40 conveyor or the task that Mr Laidlaw and Mr Bartolome were performing on the day of the incident. In the circumstances the offender was in breach of the Occupational Health and Safety Regulations 2001 and the Australian Standard AS1755 relating to the safety requirements of conveyors. The offender complied with a prohibition notice and seven improvement notices issued on it by WorkCover in relation to the incident. It fitted guarding and signage to the M40 conveyor at a cost of approximately $10,000. It revised its Mine Safety Management Plan (MSMP) to ensure that it was up-to-date with the Work Health and Safety Act 2011 at a cost of $4,500. The offender conducted a risk assessment for the combined plant and developed a Safe Work Procedure for the operation of the combined plant that included the following requirements: 1. that the site supervisor ensure that employers are competent to perform their respective tasks in the safe operation of the combined plant, including having had an induction on the plant covering emergency stop location, its function and operation and the isolation procedures; 2. the plant operator is to undertake a pre-start inspection to ensure that all guards are in place; and 3. that the plant operator undertake the isolation procedures if it is decided to cease operation for any reason. The offender has also retrained the relevant personnel in the isolation procedures. Photographic evidence 1. The prosecutor tendered a number of photographs of the combined plant. The photographs behind tab 4 of the Agreed Bundle were taken on the day of the incident. The photographs depicted an antiquated control mechanism for the combined plant with the following obvious deficiencies: 1. the M40 conveyor was controlled from the control panel of the M100 conveyor; 2. the labelling of the control panel on the M100 conveyor was incomplete, inadequate and misleading; 3. there were no emergency stop buttons located on the M40 conveyor; and 4. there was no mechanism provided to allow for a simplified isolation procedure. 1. Further, the photographs depicted a lack of warning signs requiring workers to isolate the conveyors prior to removing any guarding. 2. The photographs behind tab 5 of the Agreed Bundle were taken on 31 August 2011 depicted the combined plant after the guarding was refitted, the control system was revised and the warning signs were put in place. The offender's evidence 1. The offender relied on an Affidavit of Terrence John Martin sworn 8 April 2015. Mr Martin was not required cross-examination. 2. Mr Martin has been the General Manager of the offender for the past 21 years. He is responsible for the overall management of the business operations including occupational health and safety matters. He deposed to the following salient matters. 3. At the time of the incident the combined plant had only recently come into use on an "as required" basis when there were staff available to operate it. After the incident the combined plant has been dismantled and is no longer operational, although each of the individual parts are still used or available for use. The M40 conveyor was purchased in or around 2000 and the last recorded maintenance work was performed on it in or about June 2011. During a weekly inspection of the plant by the Site Engineer in the week prior to the incident the tail drum guarding was present. Mr Martin was unaware as to any reason why the guarding had been removed. He deposed that it was not common practice for guards to be removed without authorisation or unless the relevant isolation procedures had been undertaken and a risk assessment carried out. 4. The offender adopted the MSMP in about 1994 following an inspection by a Mines Inspector who determined that the offender was undertaking mining activities and needed to be certified in accordance with the Mines Inspection Act 1901. The MSMP was intended to cover all aspects of occupational health and safety and incorporated measures for reviewing and monitoring safety systems including policies dealing with hazard identification, risk management, reporting of incidents and hazards, on-site inspection, safe work procedures training, supervision and maintenance of plant and equipment. The MSMP issued on 12 January 2010 and in force at the date of the incident was an exhibit to Mr Martin's affidavit. 5. In September 2010 the offender engaged in independent safety specialist to undertake a review and audit of the recycling plant and associated equipment and systems. 6. The offender had incorporated reporting processes that included a weekly verification checklist to be completed by the supervisor and the DMR to be completed by each plant operator. Both forms sought to ensure and report that machinery guarding was in place. 7. On hearing of Mr Laidlaw's injury, Mr Martin telephoned for an ambulance and made arrangements for Mr Laidlaw's son who was also employed by the offender at the site, to be with him until the ambulance arrived. 8. Mr Laidlaw pursued a workers compensation claim against the offender and resigned from his employment in or about January 2014. 9. Mr Martin acknowledged the failure to identify the risk of injury prior to requiring employees to work with the combined plant and allowing that work to be performed in the absence of the tail drum guard, which included a breakdown in the system of reporting. 10. Mr Martin apologised for the serious personal injury sustained by Mr Laidlaw and for the breach of the relevant legislation. 11. Mr Martin deposed to the offender's commitment to use its best endeavours to comply with the relevant legislation. 12. After the incident, the offender took steps other than those referred to in the Agreed Facts, which included: 1. employing a Work Health and Safety Officer with a related entity, at a cost of $150,000 per annum, which is mostly born by the related entity; 2. employing a Mechanical Engineer in the management team to provide an increased level of competency and supervision of all matters, including all safety matters, at a cost of approximately $200,000 per annum; 3. modification of record keeping systems to ensure the completion of internal paperwork such as the DMRs; 4. verification of competency assessments for Plant Operators together with other skills training. Consideration 1. Both the prosecution and the offender reminded me of the general principles to be applied in the sentencing process and I have had regard to those matters, which were helpfully set out in the written submissions of the parties. Objective seriousness of the offence 1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15]. 2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70]. 3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61]. 4. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relevant to the gravity of the offence: Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of forseeability of the risk is to be determined objectively. 5. The risk of serious injury to a worker such as Mr Laidlaw was reasonably foreseeable and obviously so: a matter which was appropriately conceded by the offender. The risk of entrapment in the conveyor whilst it was operating had been identified and provided for by the fitting of the tail drum guard. The provision of the tail drum guard was required by the Occupational Health and Safety Regulations 2001 and the relevant Australian Standard. 6. The operation of the M40 conveyor without the tail drum guard being fixed on the day of the incident exposed Mr Laidlaw to a risk of serious injury and was a circumstance of aggravation, but it was not the cause of the injury suffered. Mr Laidlaw's injury was caused when he was engaged in clearing blockages from the conveyor where it was necessary to remove the tail drum guard to get access. 7. The fact that the tail drum guard had only been removed for a period of about one or two weeks and that this was unknown to management of the offender is not a circumstance of mitigation in this case. 8. If it sought to operate the combined plant the offender should have had in place a Safe Work Procedure for the combined plant that in particular required the isolation of the conveyor when the tail drum guard was removed. This also required the modification and upgrading of the control mechanisms to provide a simplified isolation procedure. The control system of the combined plant as depicted in the photographs referred to above, was plainly inadequate. 9. Due to the absence of a Safe Work Procedure relating to the combined plant: 1. Mr Laidlaw was given ad hoc instruction as to its operation; and 2. Mr Bartolome failed to isolate conveyor when Mr Laidlaw was attempting to clear the blockage. 1. The offender exposed Mr Laidlaw to a risk of injury from the combined plant which was heavy machinery that was configured and operated in an unsafe manner on the day of the incident. 2. Mr Laidlaw suffered serious lacerations and crush injuries to the right arm that required surgery. Mr Laidlaw has not returned to work after the incident. He has pursued a workers compensation claim against the offender and evidence is unclear as to what his post injury capacity is. I accept the submission put on behalf of the offender that the risk of injury to Mr Laidlaw in the circumstances of this case did not include a risk of death. Deterrence 1. There is a requirement for the penalty imposed in relation to this offence to provide for general deterrence. The penalty should draw attention to persons operating similar businesses, which are inherently dangerous to employees, that it is necessary to ensure that those businesses operate without risk to the health and safety of their employees. 2. In this particular case, the requirement for the penalty imposed to provide for specific deterrence is significantly reduced for the following reasons. 3. First, the offender took immediate steps to replace the tail drum guard, install emergency stop buttons, install signage, revised the MSMP, adopted a Safe Work Procedure for the combined plant that included relevant isolation procedures. 4. Second, the offender by its prior conduct, in the adoption of the MSMP and the provision of the tail drum guard, had demonstrated a significant commitment to workplace safety. 5. Third, the offender has through Mr Martin has accepted responsibility for its failings that led to the incident and expressed an apology. 6. Finally, the offender is no longer operating combined plant as part of its regular operation. Aggravating factors 1. The injury, emotional harm, loss or damage caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Mr Laidlaw suffered serious crush injuries. Notwithstanding that the evidence as to the continuing effect on Mr Laidlaw is unclear, I am satisfied beyond reasonable doubt that the injuries were substantial. Mitigating factors. 1. The offender does not have any prior convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. This factor should be assessed by reference to the fact that the offender has operated the relevant business since 1989. 2. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Martin has accepted responsibility on behalf of the offender for the incident and the failures that led to it. He has acknowledged that Mr Laidlaw sustained "serious personal injury". He has apologised for the incident and the breach of the relevant legislation. I am satisfied that the offender has demonstrated genuine remorse and contrition. 3. The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The evidence demonstrated that the offender had a serious commitment to workplace safety and when taken in conjunction with its lack of any prior convictions or the issue of any prior improvement notices over a period in excess of of 20 years I am satisfied that the offender was of good character. 4. The offender is unlikely to re-offend: section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. At the time of the incident the offender was operating the combined plant on a sporadic "as required" basis. The evidence is that after the incident, notwithstanding that it restored the guards and upgraded the safety equipment on the combined plant, that the offender has effectively decommissioned the combined plant. The systemic failures in this matter to which I have already referred predominantly related to the sporadic operation of the combined plant. In those circumstances and taking into account the offender's previously unblemished history I am satisfied that the offender is unlikely to reoffend. 5. The offender entered a plea of guilty to the Amended Summons at the earliest possible opportunity: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32] The prosecutor accepted that the offenders plea was an early one. In the circumstances, the appropriate discount for the plea of guilty is 25%. 6. The offender co-operated with the investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. Capacity to pay a fine 1. Section 6 Fines Act 1996 provides: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 1. The Court is required to have regard to this provision. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. 2. The offender did not put on any relevant evidence. Penalty 1. Taking all of those matters into account I find the appropriate penalty to be a fine of $120,000. In recognition of the early plea of guilty that sum is to be discounted by 25%. 2. The offender is convicted and I impose a fine of $90,000. 3. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. Costs 1. To give effect to the agreement of the parties, I order that the offender pay the prosecutor's costs in the sum of $37,000. ********** 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: 09 November 2015