District Court New South Wales Medium Neutral Citation: SafeWork NSW v Haines Bros Earthmoving Pty Limited [2019] NSWDC 69 Hearing dates: 29 October 2018 Date of orders: 22 March 2019 Decision date: 22 March 2019 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: (1) The offender is convicted. (2) The appropriate fine is $120,000 but that will be reduced by 25% to reflect a plea of guilty. (3) I impose a fine of $90,000 in total. (4) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. (5) I order the offender to pay the prosecutor's costs as agreed in the sum of $32,300. Catchwords: CRIME – prosecution – work health & safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty – rehabilitation COSTS – prosecution costs OTHER – leaking chemicals – contact with skin causing severe burns – failure to report incident Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Cases Cited: Baumer v R (1998) 166 CLR Bulga Underground Operations Pty Ltd V Nash [2016] NSWCCA 37 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29 Muldrock v The Queen [2011] HCA 39 Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96;93 NSWLR 338 R v Cini [2009] VSCA 239 R v Wilkinson (No. 5) [2009] MSWSC 432 Category: Sentence Parties: SafeWork New South Wales (Prosecutor) Haines Bros Earthmoving Pty Limited (Offender) Representation: Counsel: Mr C Magee appeared for the Prosecutor Mr S Meehan appeared for the Offender Solicitors: SafeWork NSW Legal Services (Prosecutor) Harris Freidman Lawyers (Offender) File Number(s): 2018/32914 Publication restriction: None Judgment 1. Haines Brothers Earthmoving Pty Limited (the offender) has pleaded guilty to an offence that being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the Act) as it failed to comply with that duty and thereby exposed Mr Ross O'Neill (O'Neill) to a risk of death or serious injury contrary to s 32 of the Act. 2. The maximum penalty for the offence is a fine of $1,500,000. BACKGROUND 1. The prosecutor tendered a joint signed Statement of Facts and a Prosecution Sentence Tender Bundle which displayed the basis of the circumstances as set out below. 2. The offender, as part of its business or undertaking, was involved in the provision of civil construction and plant hire services, specialising in earthworks, road works, storm-water and site remediation. It operated from its principal place of business at 136 Mersey Road, Bringelly NSW. 3. The offender owned and/or operated a Volvo Articulated Hauler Tipper Truck Model A30D Serial Number A30DV12492 (the Dump Truck). The dump truck was hired to Alexandria Landfill Pty Ltd, trading under the business name Dial A Dump Industries (Dial A Dump). 4. As part of its operations, the offender provided an Operator to operate the Dump Truck for Dial A Dump as part of the hire arrangement. It also provided repair and maintenances services in respect to the Dump Truck while it was on hire to Dial A Dump, and engaged O'Neill as a plant mechanic, and directed O'Neill in his activities in carrying out work as a plant mechanic. O'Neill was an employee as defined by s 7 of the Act and was allocated tasks, and was supervised by, the offender. 5. The offender engaged Adam Cox (Cox) as a plant operator, and directed Cox in his activities in carrying out work as a plant operator, in that Adam Cox was an employee of the defendant and was allocated tasks, and supervised by, the offender. 6. The Dump Truck was operating at a waste processing centre operated by Dial A Dump, located at Honeycomb Drive, Eastern Creek NSW (the Site). 7. The Site was a workplace for the purposes of s 8 of the Act. 8. Cox was at work in the business or undertaking of the defendant in that he was the operator of the Dump Truck while it was operating at the Site as part of the hire arrangement with Dial A Dump. THE INCIDENT ON 29 JUNE 2016 1. On the day of the incident, Cox became aware of a mechanical problem with the Dump Truck while it was operating at the Site. O'Neill was at work that day and was directed by the defendant to attend at the Site and undertake repairs to the Dump Truck. 2. In order to do so, O'Neill required the Dump Truck's dump body to be moved to the raised (tilted) position to access part of its mechanical systems. 3. Whilst O'Neill was undertaking mechanical repairs to the Dump Truck, the Dump Truck's dump body unexpectedly lowered from its raised (tilted) position and crushed O'Neill between the dump body and the chassis of the Dump Truck. 4. As a consequence, O'Neill suffered serious injuries when he was struck and crushed between the dump body and the chassis of the Dump Truck. 5. Pursuant to s 19(1) of the Act, the offender had a duty to ensure, so far as reasonably practicable, the health and safety of workers, in particular, O'Neill. 6. The risk was a risk to workers, in particular O'Neill, suffering serious injury or death as a result of being struck and/or crushed between the lowering dump body and the chassis of the Dump Truck while undertaking mechanical repairs beneath the dump body of the Dump Truck. INJURIES 1. As a result of the incident, O'Neill suffered unstable fractures on both of his lower three lumbar levels, at L3, L4 and L5. His hand was broken and required surgery to insert seven screws and two plates. 2. O'Neill was required to undergo rehabilitation to regain the ability to walk. He further suffered psychological injuries and is attending sessions with a psychologist. He has not returned to work. 3. It was submitted by the Prosecutor that these injuries support the Court making a finding that the offender's breach was an objectively serious one. ADMITTED OMISSIONS 1. The offender failed to ensure that O'Neill was not exposed to risks to his health and safety, which are defined in the summons. They were failures to; 1. conduct an appropriate risk assessment of the task of performing mechanical repairs whilst working beneath the raised dump body of the dump truck; 2. developing, implementing and enforcing a safe operating procedure for tasks associated with the mechanical repair of the dump truck that identified and mandated the requirement to use the control measures, including securing the dump body in the maximum holding position by the use of the lever lock and securing the dump body by use of the dump body lock; 3. providing adequate information, instruction and training to workers in relation to the risks associated with working beneath the raised dump body of the dump truck and identified and mandated the requirement to use the control measures, including securing the dump body in maximum holding position by use of the lever lock and securing the dump body in the maximum holding position by use of the lever lock and securing the dump body by use of the dump body lock; 4. affixing warning signs to the dump trucks alerting workers of the requirement to engage the lever lock and dump body lock before undertaking work beneath the raised dump body of the dump truck. 1. The offender has admitted that those measures would be reasonably practicable steps which they ought to have implemented, but failed to do so, giving rise to the risk of injury to O'Neill. Had these measures been implemented, the risk to the health and safety of workers at the site could have been eliminated (or alternatively minimised if not reasonably practical to eliminate). 2. The offender accepts its shortcomings in its SafeWork operating procedures, as it had not identified the two control factors. These were two independent locking systems, namely: 1. the tipping lever lock; 2. the dump body lock. 3. These two important safety features were designed to militate against the very risk that materialised in this case. 1. It is clearly apparent that had either of these locks been engaged by O'Neill or Cox, as they were designed to be, the risk to O'Neill would have been avoided. 2. The Dump Truck was required to have the engine turned off and the ignition key removed when any mechanical repairs were undertaken beneath the body of the truck. 3. A Safe Work Method Statement (SWMS) for the repair, service or maintenance of plant was undertaken by the offender in May 2015. Unfortunately, it made no reference to the risk of a worker being crushed by the lowering of the dump body, nor the controls that should be implemented when performing such work. The SWMS was inadequate in this regard. 4. The SWMS was not signed by any workers. 5. Similarly, a risk assessment undertaken by the offender in September 2015 also made no reference to the risk. 6. The manufacturer's manual that came with the Dump Truck contains a section 'A Few Simple Rules When Servicing', which details that the dump body lock or the tipping control should be locked before the work is commenced. It also indicates the engine of the machine should be stopped. It raises various other important warnings. 7. Cox was aware of the manual as he had read it. For the situation to have occurred as it did, it must be concluded that Cox was inattentive whilst doing the task. There is no evidence to suggest that O'Neill had read the manual. 8. Therefore, the offender's failure to integrate the control measures into its training and SWMS. The offender failed to alert all workers of these measures nor did they document the control measures. The risk could only have arisen if neither of the control measures were put into effect. The risk could only manifest if the engine was turned on, as when the engine is turned on, the tipper would automatically return to the chassis. 9. In assessing foreseeability, I accept that the risk of serious injury or death could only occur when three things happened contemporaneously: 1. The locking devices were not engaged; 2. The engine was turned on; and 3. A worker was working in the area of the chassis. 1. I accept therefore that the risk was not obvious, nor in reality was it readily foreseeable. SYSTEMS OF WORK BEFORE THE ACCIDENT 1. There was a pro-forma 'Plant Risk Assessment' document which was used to assess risks associated with the task of the repair and maintenance of plant equipment. It was not designed to be specific to any particular type of plant equipment or vehicles. A risk assessment was done in March 2016 by the offender, which utilised the pro-forma Plant Risk Assessment document, and it identified an excavator as a hazard. 2. The SWMS was not specific to the tasks associated with the mechanical repairs of the dump truck, and did not refer to task that may require workers to perform repairs beneath the raised dump body of the dump truck. It did not identify the risks associated with doing that task, nor instructions as to how that task ought be performed. It did not mandate the use of control measures, which included securing the dump body in the maximum holding position by using the dump body lock or the lever lock. 3. Prior to the incident, the offender had not instructed, trained or provided task specific information to O'Neill about the risks associated with repairing beneath the dump body. They had not set out step-by-step instructions as to how such repairs were to be performed. They had not ensured that warning signs alerting workers of the requirement to engage the lever lock and dump body lock before undertaking work beneath the raised dump body. SYSTEMS OF WORK AFTER THE INCIDENT 1. Following the incident, SafeWork issued Improvement Notices to the offender which were complied with. The offender subsequently issued a safety alert to workers informing them of the incident and the lessons to be learned from it. They conducted a tool box talk on 1 July 2016 , and continue to have such talks each day before work commences to discuss the work to be done and any safety risks. 2. The offender issued Take 5 booklets to all employees to help them identify and control risks during their work. They placed warning signs on all dump trucks owned by the offender which read "Danger – Safety pin must be engaged before working under raised body" and "Pinch point – Can cause severe personal injury ". 1. They further reviewed and updated their Risk Assessments and SWMS. 2. After the incident Dial A Dump created a procedure applicable to Dial A Dump trucks operating at the Site to establish correct procedures when maintenance or servicing was done on a dump truck whilst the bin/body was raised. Dial A Dump further provided training and instructions to workers in relation to the raised body/bin lock out procedure on or about 13 July 2016. They provided further training to workers including a practical display of how to do the works at a tool box talk. CONSIDERATIONS 1. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) for the purpose of sentencing. OBJECTIVE SERIOUSNESS OF THE OFFENCE 1. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39 at [27]. 2. The following matters are relevant to the objective seriousness of an offence against occupational health and safety legislation: 1. The maximum penalty available under the relevant provision; 2. The obviousness or foreseeability of the risk; 3. The gravity of the risks to safety flowing from a breach; and 4. The availability and feasibility of measures to eliminate or control that risk. 1. The maximum penalty is $1,500,000 in the case of an offence committed by a body corporate. 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 (1998) 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 time 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 of aggravation or mitigation: R v Wilkinson (No. 5) [2009] MSWSC 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 relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively. 5. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96;93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that 'greater culpability attached to the failure to guard against an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including: (a) The potential consequences of the risk, which may be mild or catastrophic; (b) The availability of steps to lessen, minimise or remove the risk; and (c) Whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.' 1. Further at paragraph 42 his Honour continued: 'The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon and overall evaluation of various factors, which may pull in different directions.' 1. My findings about the offender's level of culpability are based on the following: 1. The offender had in place appropriate control measures in place to guard against the risks. The gravamen of its breach is that it failed to ensure that the relevant control measures were adequately identified in, and integrated into the risk assessment, safe working procedures and information, instruction and training to employees. 2. Such control measures were not adequately enforced, and employees were not alerted to the control measures by the affixing of warning signs to its dump trucks. 3. The offender has acknowledges by its plea of guilty that the risk arising from its failure to take the reasonably practical steps that it could have taken, that the risk was foreseeable. It also thereby concedes that the risk O'Neill was exposed to was a risk of serious injury or death. DETERRENCE 1. In imposing a penalty in relation to this offence, general deterrence must be provided for, and plays an important role (s 3A(b) of the CSP Act). 2. The Prosecutor submits that it is appropriate that the penalty imposed contain a significant component for specific deterrence to compel the offender to undertake a rigorous approach to health and safety in the future. 3. The objective of specific deterrence is to deter the particular offender from repeating the offence, and the attitude of the offender to workplace safety and steps taken to improve it following the incident are also relevant. (see Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29) 4. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. I accept that general deterrence is a matter that I must consider in the sentencing process, however it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors. I am satisfied that the changes in management practices and there is evidence before me of those changes. 5. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd V Nash [2016] NSWCCA 37 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given the weight of some substance in the sentencing process, and the Court would not be able to depart from this rule, unless there were exceptional circumstances. 6. In Bulga (supra), the Court of criminal Appeal affirmed the decision in Capral (supra) as follows: 'It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, WorkCover Authority (NSW) (inspector Page) v Walco Hoist Rentals Pty Ltd (no.2) [2000] NSWIR Comm 39 at 40-43), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted…..' 'Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence; see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.' 1. The Prosecutor submits that I should have concern that the offender's systems as documented in the Plant Risk Assessment are inadequate. They submit that they pale in comparison to the steps taken by Dial A Dump subsequent to the incident. They submit that general deterrence in this matter should play a significant role, and it is a particularly significant factor when workplace safety obligations are breached (see R v Cini [2009] VSCA 239 at [52]). 2. The Prosecutor further submits that the issue of general deterrence must be approached in the context of the industry in which the offender operates. That industry performs tasks involved including service and maintenance of plant and equipment and operating such equipment. They submit that a message must be sent to the industry. 3. In coming to my sentence I have had regard to the submissions and the steps that the offender has taken since the incident, which I find are not insignificant. MITIGATING FACTORS 1. The offender cooperated with SafeWork during its investigations into the incident. 2. The offender has no prior convictions (ss 21A (3)(e) of the CSP Act). 3. The offender pleaded guilty at the first available opportunity and ought therefore be entitled to a 25% discount based on the utility of the plea. (ss21A(3)(k) and s 22 of the CSP Act). 4. I accept that the offender has demonstrated remorse and contrition, and has taken the following steps since the incident : 1. A safety alert was issued to workers detailing the incident and the lessons that could be learnt from what had happened, 2. A Tool Box Talk happened on 1 July 2016 where the incident was discussed and such talks are now held daily to discuss the risks that may be associated with the tasks that are to be performed that day; 3. Danger signage has been affixed to all of the offender's dump trucks; and 4. The offender has updated its SWMS and employed a full-time Work Health and Safety Co-Ordinator since March 2018. 1. I note that the offender is a good corporate citizen, and I accept that given the steps taken subsequent to the incident, the offender has good prospects of rehabilitation (s 21A (3)(h) of the CSP Act). 2. The offender has been operating since 1996 and has no antecedents. AGGRAVATING FACTORS 1. The injuries sustained by O'Neill were serious and this is an aggravating factor pursuant to s 21A (2)(g) of the CSP Act. I have had regard to his Victim Impact Statement and the contents thereof in coming to my determination. 2. I accept that the offender has taken steps to eliminate the risks as detailed in paragraphs 36-39 above. However, whilst the offender has taken steps to eliminate the risk, I am of the view that the risk of reoffending is not significant and I accept that the rehabilitation is ongoing. COSTS 1. The offender is to pay the prosecutor's costs as agreed in the sum of $32,300. PENALTY 1. My orders are: 1. The offender is convicted. 2. The appropriate fine is $120,000 but that will be reduced by 25% to reflect a plea of guilty. 3. I impose a fine of $90,000 in total. 4. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. 5. I order the offender to pay the prosecutor's costs as agreed in the sum of $32,300. ********** 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: 22 March 2019