Director of Public Prosecutions v Toll Transport Pty Ltd
[2016] VCC 1975
•14 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01137
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TOLL TRANSPORT PTY LTD (ACN 006604191) |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2016 | |
DATE OF SENTENCE: | 14 December 2016 | |
CASE MAY BE CITED AS: | DPP v Toll Transport Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1975 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – Single charge of failing to provide and maintain a safe working environment so far as was reasonably practicable - s.21(1) and s.21(2)(a) Occupational Health and Safety Act 2004 – Workplace death – Incident occurred during loading process on weather deck of a company ship - Relevant criminal record – Previous steps taken to mitigate risk to workers in 2006 inadequate – Co-operation, remorse and remedial measures all taken into account
Legislation Cited: Occupational Health and Safety Act 2004, Environment Protection Act 1970 (Vic) - Occupational Health and Safety Act 1983 (New South Wales, now repealed)
Sentence: Convicted and fined $1,000,000.00 with a stay of 60 days
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. O’Connell SC with Ms S. Keating | Solicitor for Public Prosecutions |
| For the Accused | Mr R. Taylor | Herbert Smith Freehills |
HER HONOUR:
On 28 November 2016 through Mr Anthony Stuart, Group General Manager of Toll Transport Pty Ltd, the accused company pleaded guilty to one charge of failing to provide and maintain a safe working environment so far as was reasonably practicable. The particulars of the charge, numbered 1 to 8, were admitted by the company, as was its criminal history.
The maximum penalty for the offence at the relevant time was 9,000 penalty units, equating to a maximum penalty of $1,299,240. The maximum penalty reflects the seriousness with which the offence is regarded by Parliament.
The offending was opened as follows:
The defendant company was a company limited by shares at the relevant time. It operates a commercial shipping service between Webb Dock in Port Melbourne, and Burnie in Tasmania. The service uses two ships in servicing its operation between the two ports.
Mr Anthony Attard, who, sadly, suffered fatal injuries on
20 May 2014, was employed by Toll as at that time.
The incident which led to Mr Attard’s death occurred at the Port Melbourne site during the loading process on the weather deck of one of the company’s two ships.
I was told that the defendant company was charged under s.21(1) and s.21(2)(a) Occupational Health and Safety Act 2004 (“the Act”), but with one charge- that it failed to provide and maintain a safe system of work in relation to the loading of the weather deck.
Mr Attard was employed as a Grade 5 Stevedore at the relevant time and he worked at the site, loading and unloading cargo on the ships. As at that time, a Grade 5 Stevedore had the following responsibilities:
(a)the co-ordination and placement of cargo on the vessel;
(b)directing the tractor operators as to where to place their loads;
(c)ensuring correct placement of rubber mats which were used to stabilise the front of the MAFIs during transit; and
(d)to watch out for the ship’s crew working on the deck as the deck was being loaded.
I was told that the process for loading and unloading shipping containers on the ship was a rolling on and off of cargo, referred to as RORO. The shipping containers are placed onto MAFI trailers which are low and flat, and each trailer can carry up to four 20-foot shipping containers by way of placing two on the base and two stacked on top, or two 40-foot shipping containers with one on the base and the second on the top. When fully loaded, a MAFI can weigh up to 90 ton.
These trailers are fitted with solid wheels at the back but there are no legs on the front of the trailer as there is a fixed steel section which sits on the ground or ship deck in order to stabilise the front of the MAFI when it is not connected to a tractor.
The RORO process takes place on three decks of the vessel – those decks are the weather deck, the middle deck and cellar deck.
A tractor or prime mover, which appear to be interchangeable terms, moves the MAFI trailer to its location when the containers have been placed on top of it.
When delivering MAFIs onto the weather deck, the prime mover driver must push the MAFI trailer up the ramp. In order to do this, the driver is required to turn the seat in the cabin so that he faces the shipping container. As a result, the container occupies most of the driver’s forward view, as it is pushed up the ramp.
At the relevant time, rubber mats, which were about one foot square, were placed on the weather deck at each point of contact at the front of the MAFI trailer with the deck. The mats helped to prevent MAFI trailers sliding around on a deck when the ship was moving.
I was told that mats can be dislodged when MAFIs were being moved around and they then must be repositioned. Mats may also require repositioning if there are more rows of MAFIs to be loaded than the number of rows “discharged prior.”
I was told that three rows of MAFIs are placed at the front of the weather deck and occasionally there will be a fourth row. The rubber mats would generally be left in place on the weather deck in the position of the three rows and if a fourth row of MAFIs is to be loaded onto the weather deck, which was the case on 20 May 2014, then further mats are required to be laid.
I was told that the senior employee, the G5, was responsible for ensuring that the mats were in place. A G4 was available to conduct this work, but on the day of the incident giving rise to this prosecution, the G5 was himself placing these mats down and the G4 was not on the weather deck at the time.
I was told that Toll’s written safety instructions suggest the use of ear protection and other personal protection equipment. According to a Grade 4 Stevedore, Mr Chris Cassar, the prime mover operators did wear hearing protection.
Mr Attard was wearing ear plugs during the performance of his duties on the weather deck and at the time of the incident.
The incident
On 20 May 2014, among other staff, a G4 and G5 were rostered on to assist in loading activities. At about 1.15 pm, Mr Daryl Ward, who had been employed as a driver for Toll for about three years, drove a prime mover, pushing a MAFI trailer to load it onto the weather deck.
Mr Ward waited at the bottom of the weather deck ramp to be directed up by the guide stationed at the bottom of the ramp.
The MAFI was directly in front of Mr Ward’s line of vision. He was able to see down the left-hand side of the container by leaning left from his seat, but his vision was otherwise completely restricted in relation to the area in front of the MAFI and to the right side of it.
Mr Ward commenced driving up the weather deck ramp. Upon reaching the top, there was another prime mover that came up the ramp and moved past him. According to Mr Ward, he (that is, Mr Ward) then hung his head to the left so that he could see up the ramp. He stated that the path was clear although he could not see on the right-hand side of the MAFI.
According to Mr Ward, as he could recall, there were already three MAFIs on the deck as at this time.
When he came to the crest of the ramp, he “gave the wheel a bit of a kick to the left, to get the MAFI to the right.” He continued without stopping. Mr Ward remembered seeing one person in front of one of the already loaded shipping containers and stated that this could have been one of the crew from the ship or Mr Attard.
The Defendant company agrees that at this point there was no Grade 4 Stevedore on the weather deck assisting the Grade 5 Stevedore.
Mr Ward was “rolling on” the first row of MAFI trailers at this time and said that he had gone some distance onto the weather deck before he noticed that something was wrong. He said that initially he noticed a slight change to the prime mover, which in his view was not uncommon. He said that it was as though the vehicle was not reacting how it normally would. He then looked around and saw a young woman to his right, waving her arms. He could not hear her but applied the brakes because he understood that she was telling him to stop.
A Toll employee, Ms Tylee McIntyre, was lashing trailers with two other employees she refers to as “Ray” and “Ben”. As the fourth or fifth MAFI was coming in that afternoon, Ms McIntyre and Ben were moving some lashing from the starboard side of the ship. They were bringing chains up the side of the boat when Ms McIntyre observed Mr Attard walking down the deck toward where she and Ben were standing. According to this witness, the stevedore picked up a mat and the MAFI trailer started to move toward him. Ms McIntyre states that as the MAFI moved closer, she yelled out to stop but the driver did not hear her.
According to another witness, Ben Mahnken, as he was moving chains with Ms McIntyre, he noticed Mr Attard putting some mats down. At some point, he looked around and noticed that Mr Attard had his back to the driver of the prime mover. Mr Mahnken stated that he believed that the driver could not see Mr Attard. He said:
“When we looked around, he was on the ground, face first. The wheels on the container ran over him. We were just screaming to the driver to stop but he couldn’t see us because there was no window on that side of the driver. I just told him not to move or go forward.”
As soon as Mr Ward stopped the prime mover, he got out and saw what had happened. He telephoned his supervisor to call an ambulance. He could hear Mr Attard screaming. Mr Ward collapsed near the prime mover.
Workers used a forklift to lift the MAFI trailer off Mr Attard.
Paramedics attended to Mr Attard. His left leg had been severed and he had extensive injuries to his right buttock and pelvic area. Sadly, he was declared deceased at the scene about 40 minutes after he was struck by the MAFI.
At the time of this incident, Mr Attard was wearing a high-visibility vest and had ear plugs in his ears.
I was told that in 2006, the accused company had documented a risk review of Toll Shipping Melbourne Terminal. The risk review identified that hazards posed to persons working in the vicinity of a mobile plant, as being serious injury or death and the risk was identified as being high. The 2006 risk review identified the hazards and risks arising from its undertaking in loading its ships.
The procedure for loading the ship was contained in Toll “Ship Discharge and Loading Procedures Melbourne Terminal”. That document was issued on 22 December 2009 and had been revised three times. It was also set out in the Job Safety Analysis.
It is accepted by the defendant company that the implementation of a clear system of work was significant, because the driver’s vision was almost completely restricted whilst any pedestrian crew members performed work in the vicinity of the MAFIs being moved onto the weather deck.
In the defendant company’s Job Safety Analysis dated
7 September 2009, the risk of collision was identified where there was reference to "Load the weather deck ramp – push up". The risk of running over pedestrians with moving plant was countenanced and actions to avoid this included:
“Be alert for pedestrians and other hazards. No personnel to be at rear of trailer. Driver is to stop at base of the ramp and make sure shackles on the gooseneck are connected.”
It was agreed as between the parties that the written procedure in relation to the loading process specified that the G5 was responsible for the safe movement of discharge and loading in the ship’s area being worked. The written procedure specified that the G4 Ship Face “Assist the G5 foreman”.
It is accepted by the defendant company that on 20 May 2014 the G4 was not working with the G5 as at that time. I was told that it is believed that he was performing other duties on this day.
Whilst it cannot be ascertained as to the extent to which G4 and G5 worked separately on this task, it is accepted by the defendant company that it is open for me to find that this was not an isolated instance; however, it is not alleged that the G4 and G5 systematically worked separately. Therefore, I sentence the defendant company on the basis that the G4 and G5 working separately on this task was not confined to the situation on 20 May 2014; however, I accept that this was not a systematic approach, and I make no finding as to the regularity with which this situation occurred.
I sentence the defendant company on the following basis:
That the system of work to which I have previously referred and which was in place on the day that Mr Attard was killed, was not safe so far as was reasonably practicable, because the defendant company did not eliminate or adequately control the risk of collision between prime movers pushing MAFI trailers onto the weather deck during the loading process and pedestrian workers in the vicinity.
It was reasonably practicable to have ensured the system was safe, by ensuring that express instruction was provided to the following effect:
(a) Loading procedures during prime mover movements on the weather deck required loading to be undertaken by both a G5 and G4 working together;
(b)Written systems that expressly stated that during the weather deck discharge/loading activities:
(i) a G5 worker performs supervision duties, so as to ensure safe and efficient discharge/loading activities including spotting for pedestrians in the vicinity of the loading area; and
(ii) a G4 must be present on the weather deck to assist and follow instructions from the G5 relating to cargo handling and deck preparation associated with the discharge/loading activities, so as to minimise, so far as is reasonably practicable, the risk of prime mover and pedestrian collisions during those activities; and
(c) Written work procedures that expressly stated that all prime mover drivers travelling onto the weather deck must stop upon arrival at the top of the cargo ramp, if the G5 is not in sight or does not signal for them to proceed.
Changes to system for loading weather deck
I was told that the defendant company’s Job Safety Analysis dated 24 May 2014, clarified Toll’s written procedures and expectations, stating the following:
(a) G5 foreman is positioned at top of ramp (on the port side) controlling traffic and directing driver once safe to proceed. He is not to leave position until relieved under any circumstances, and is responsible for the safety of all personnel on deck.
(b)G4 Ships Face to assist with positioning of mats and follow directions of G5 Foreman at all times.
(c) Two stevedores must be present during cargo operations at all times – G5 Foreman and Ships Face. If they are not in position then operations will stop.
(d) IR’s & Reefer Mechanic to be positioned in line of sight with G5 until given ‘all clear’ to lash or attend reefers once cargo is complete.
(e)Port Officer to be positioned in line of sight of G5 and follow his directions at all times.
(f)Contractors – No works to be undertaken on the deck at the same time as cargo or operations.
(g) Drivers must stop at top of ramp and not move until in sight of G5 Foreman and directed it is safe to proceed.
(h) Ramp Guide to be in eye contact with G5 positioned at top of weather deck ramp controlling traffic flow and movements.
(i) When loading the first two slots on any row from port to starboard, all persons involved in the cargo operations on deck will stand on the starboard side, two rows forward of the face, so that they can be seen by the driver and foreman. Then move in front of the first two rows in vision of driver and G5 foreman until the row is complete; and
(j) G5, Ships Face and one IR to have radios at all times with channel 3 designated for ship’s operations.
Toll conducted a number of reviews of its discharge and loading procedures and issued a revised procedure entitled “Toll Shipping Manual – Discharge and Loading of Vessels”, on 1 July 2015. The manual included the following relevant matters:
(a) that the G4 and G5 must be on duty on the weather deck together at all times;
(b) the G5 is to ensure safe and efficient vessel discharge/loading activities involving G4, ship prime mover drivers and other personnel in cargo deck areas;
(c) the G4 assists and follows instructions from the G5 relating to cargo handling and deck preparation; and
(d) the Ship Prime Mover Driver must stop once clearing the cargo ramp and within the marked zone for the following conditions:
(i)the G5 is unsighted;
(ii)the G5 signals or communicates to the driver to stop;
(iii)the G5 does not signal, indicate, or provide clear signals or instructions to the Driver; or
(iv)the G5 is distracted or unaware of the Driver’s position or presence.
I regard the offending by the Defendant company as most serious and deserving of strong punishment and denunciation. Strong weight must be attached to general deterrence in a bid to deter other employers from offending in the way that the defendant has. As was appreciated by the defendant company itself, from its 2006 review, the ship loading process which it employed at its Melbourne port involved hazards posed to people working in the vicinity of mobile plant, as being of the most serious kind, and the risk identified was high. This is obvious when one considers the nature of the activity being performed- prime movers pushing massive trailers holding mostly laden shipping containers amidst workers on a ship’s deck, in circumstances where the drivers are largely blinded by their loads and have no ability to hear any instruction to wait or stop, it would appear; where there was no clearly spelt out and closely supervised system which maximised the protection of workers, who were so highly vulnerable in the vicinity of these monster vehicles. In my view, this was a tragedy waiting to happen. In saying this, I do not sentence the company on the basis of the tragic outcome insofar as Mr Attard is concerned, as that is not the gravamen of the charge. However, I regard the breach as a most serious one in circumstances where what befell Mr Attard was readily foreseeable and much more could have been done to maximise the safety of the workplace. His death highlighted the grave risk that the defendant company exposed its workers to, a risk of which they were aware, yet did not adequately address. In fact, it seems to me that the system of work, despite a number of reviews of it prior to the accident, were hopelessly inadequate and vague.
A strong message needs to be sent to employers whose employees are placed in highly dangerous situations, such as was the case here, that they must do their utmost to ensure the safety of those employees. If they do not meet their obligations in this regard, then they should know that they will be met with strong punishment. Lest it be said otherwise, when I say that employers ought do their utmost, I have not assumed a higher obligation than is required under the relevant legislation. However, in environments, as was the case here, where the risk of catastrophic injury or death is high, constant, and readily foreseeable, the term "so far as is reasonably practicable" must involve the creation of strict, rigorous and comprehensive standards which are then religiously maintained.
I take into account the victim impact statements.
It goes without saying that the impact on the Deceased’s wife, Sandra Attard, has been devastating. Two and a half years on, she is still in the dreadful grips of grief for her husband. She did not want her victim impact statement read aloud in court, but it is clear from all that she has said that she has lost her soul mate, and her children have lost a wonderful father. She misses him every day and does not recognise who she has become. She says that she feels so cheated and still cannot "swallow that (her) husband is not coming home". Her husband’s sudden death has so traumatised her that she has become overly protective of her children and herself. She says that she hates what her life has become; that even counselling has not healed the pain and she feels that part of her life went away with her husband. Her children have told her that they fear something will now happen to her. She feels lonely and often helpless in the face of having to do everything on her own now. She says that she now suffers from anxiety, panic attacks, anger and hatred. She looks at life and people so differently now. Her only comfort is her three beautiful children-these are the people who keep her going. She said: "Anthony Attard, the father of two sons, Braydon and Jaymie, and his princess Sharna, was the most caring and loving person who will always be remembered by his infectious smile and laughter and bubbly personality that loved to spend time and travel with his wife and kids. My husband never deserved to have been taken away from me and the kids the way and where he did, and there is nothing anyone can say or do to heal this. We all got a sentence of heartache."
Steven Caruana also completed a victim impact statement. He said that Anthony Attard was his best friend and that at work and away, they were inseparable. Mr Caruana says that shortly after he had chatted with Mr Attard during their lunch break on the day of the incident, he heard an emergency call on the two-way radio and rushed to the scene of the accident. He was confronted with the dreadful sight of his friend trapped underneath the trailer. He held Mr Attard’s hand while emergency workers tried to free him and until he passed away. Understandably, he said that it was terrible to watch his best friend die, being powerless to do anything but be with him until the end. Mr Caruana now lives with flashbacks of those dreadful moments with his friend and now suffers a great deal of stress, anxiety and emotional pain, and anger. His family have suffered as a result of this. He has struggled with returning to his workplace as he is constantly reminded of what happened to his friend; he has a heightened fear of dangers in in his workplace. He has become withdrawn socially and has sleepless nights. He has needed ongoing psychological help. He says he misses his friend of nine years terribly, but says that he is very fortunate to have had the support of his family through such difficult times.
I also note that Mr Attard’s father and brother were at the plea hearing, and, no doubt, have also suffered immensely.
The accused company has the following criminal history:
(a) On 10 November 1999, in the Magistrates’ Court, the company was convicted and fined $15,000 in relation to failing to provide and maintain, so far as was practicable for employees, a safe working environment – plant and systems of work, and failing to comply with a prohibition notice. The company was convicted and fined a total of $15,000 in respect of allowing the unsafe practice of “belly lifting” very large containers on the tines of a forklift without securing these. The practice had endured over a two-month period between 1 July 1996 and 16 June 1997;
(b) In the Magistrates’ Court on 31 October 2001, the defendant company was dealt with in relation to two separate instances of failing to provide and maintain a safe working environment. The first matter was in respect of an incident on 31 March 1999 at Toll Logistics, Laverton North, where a subcontractor driver sustained serious crushing injuries to his head, right leg and arm, including broken vertebrae and ribs, brain damage and memory loss, as a result of being run over by a 30-tonne forklift operated by an employee of Toll Logistics. The company pleaded guilty and was convicted and fined $50,000. The second incident occurred on 4 April 2000 at the Altona North premises of Toll Express, where an employee subcontractor sustained serious crushing injuries to his left arm, lost his spleen, and suffered internal injuries to his chest and abdomen when he was struck by a prime mover and dragged beneath it for about 5 metres along a roadway on Toll’s site. The company pleaded guilty and was convicted and fined $50,000;
(c) On 23 July 2002, in the Chief Industrial Magistrates’ Court New South Wales, the defendant company was dealt with in relation to failing to ensure the health and safety of persons other than employees at places of work and was fined $7,500. On that same day, it was also dealt with for breaching s.27 of the Occupational Health and Safety Act 1983 (New South Wales, now repealed) in relation to notification of accidents and other matters, and was fined $500. There are no details in the criminal record document as to the conduct which gave rise to these matters;
(d) On 19 September 2003, in the Inala Industrial Magistrates’ Court Queensland, the defendant company was convicted and fined $25,000 in relation to failing in its obligation to ensure a safe workplace when a self-employed truck driver was struck by a heavy transport container mover, sustaining serious injuries, including a crushed leg;
(e)On 10 February 2004, in the Magistrates’ Court at Heidelberg in Victoria, the company was convicted and fined in relation to a breach of the Environment Protection Act 1970 (Vic) – which concerned polluting waters at Fairfield;
(f)On 22 October 2004, in the Magistrates’ Court, the defendant company was dealt with for failing to provide and maintain a safe working environment which resulted in a conviction and fine of $25,000. The offending conduct concerned an incident in December 2002, where a driver of a car carrying a truck, who was employed by the defendant company, sustained bruising and lacerations to his arms when his hands became trapped by a mechanism employed for lowering the main deck of the top level of his trailer;
(g)On 20 May 2009, in the Industrial Court New South Wales, the company was fined $220,000 in relation to a breach of its duty to ensure that the premises were safe and without risk to health, so far as was reasonably practical. There are no details in relation to this offending on the criminal record sheet; and
(h)On 7 March 2012, at the Magistrates’ Court of Tasmania, the defendant company was convicted and fined $45,000 for failing to ensure so far as was reasonably practicable that employees were safe from injury and risks to health while at work. The incident giving rising to this matter occurred on
3 September 2010 at the Toll Wharf Facility in Burnie, Tasmania. An employee of the defendant company was injured when he was struck by a Mack Superliner prime mover truck. He sustained a fractured pelvis, ribs, arm, legs, fingers, internal injuries and was partially scalped.
I regard the prior offending, which was dealt with in 2001 (that is, two matters on that occasion), 2003, 2004, 2009 and 2012 as having particular relevance to the question of the weight I should attach to specific deterrence. In particular, the matter which was dealt with in 2012 has substantial pertinence to the offending for which I now sentence the accused company. Mr O’Connell of Senior Counsel, on behalf of the prosecution, referred to a statement on the brief from the WorkSafe inspector who, as I understand it, dealt with that matter- a Mr Templar. He took me to p.137, Volume 1 of the Brief, where Mr Templar said as follows:
“One such incident occurred on 3 September 2010 at the workplace at Toll Shipping located at McGaw Wharf, Port Road in Burnie, Tasmania. The incident in question involved an employee (Gary Oliver) of Toll Transport, sustaining serious injuries when he was struck by a prime mover during the course of his employment as a truck driver collecting shipping containers from the Toll Shipping depot at McGaw Wharf.
The workplace where the incident occurred is used by Toll shipping as a port for freight ship between Webb Dock in Melbourne and North West Coast of Tasmania.
Information obtained during the conduct of investigation into the aforementioned incident led me to believe Toll Shipping did not have sufficient procedures in place to segregate the movement of mobile plant and equipment from pedestrians which resulted in Gary Oliver sustaining life-threatening injuries that ultimately left him permanently disabled.” [1]
Mr Templar went on to say that following this incident, Toll Shipping implemented a number of risk control measures to reduce the likelihood of the recurrence of such an incident and he lists a large number of measures which were then taken by the defendant company in dealing with the problem. Mr Templar indicated that since the implementation of the risk-control measures, there had been no further reports of pedestrians being struck by mobile plant or equipment at McGaw Wharf in Burnie.
[1]Extract from Statement of Mr Templar; Volume 1 p.137 Depositions; Plea Exhibit F; Plea Transcript at p.56
Mr O’Connell submitted that this piece of evidence indicated that the defendant company was on notice as to the particular risk that constituted the charge for which I now sentence the defendant company. He submitted that in view of the incident at Burnie, it was significant when considering the need to emphasise specific deterrence. While Mr O’Connell was unable to say whether the measures taken at Burnie were also implemented at the Melbourne site, the essential system of work, insofar as the G4 and G5 were concerned in respect of working on the weather deck at the time of the incident in 2014, was inadequate. He submitted that the instructions were not sufficiently specific to eliminate or reduce the very risk that had been identified as at that time. Mr O’Connell further submitted that this could have been addressed very simply and that this is what occurred following the death of Mr Attard. I accept Mr O’Connell’s submissions that the incident in 2010 at Burnie, which was dealt with in 2012, is most relevant to the weight which ought to attach to specific deterrence in the matter before me.
I was told by Mr Taylor, on behalf of the Defendant company, that the WorkSafe Authority has signed off on the improvements to the defendant company’s system of work in this area of its operation, and there has been no subsequent offending.
In addition to the matters which are set out in the prosecution opening as being improvements to the system of work, Mr Taylor also pointed to other matters, tendering a folder of documents which pertained to these. He explained the more comprehensive system of work which had been put in place, and referred to the level of training of any Toll employee who was tasked with the loading process. The additional remedial measures included employing video cameras focused on the deck which are monitored by deck officers who are in radio contact with prime mover drivers, painting the deck with a non-slip surface so as to minimise the need for pedestrians to be on the deck placing mats down. The deck also has clearly marked "no-go" zones and stopping zones, and there is a radar speed detector installed to ensure that the prime movers travel at the prescribed speed limit. I was told that drivers can be directed by radio to slow down if they exceed the speed limit as they travel up to and onto the deck. There are now explicit stipulations as to where the G5 and G4 are to be positioned, their roles, and the circumstances in which vehicles cannot proceed onto the weather deck. An auditing process was also installed, although the primary purpose for this does not appear to be for safety. However, this does serve to closely monitor the activity on deck. Other safety mechanisms have been or are being trialled.
I was told of the various costs associated with some of remedial steps: the painting of the deck of each vessel which involved the ship to be docked for three days resulted in a capital expenditure of $72,000 per vessel; the auditing system cost $152,000, and a pedestrian transport system cost $125,000; the defendant company has also paid Mrs Attard $112,455 over and above the sums that it was legally obliged to pay her.
I was told that a high-level internal review of stevedore operations cost the company a significant sum in overtime for the stevedores, as well as for safety representatives and executives.
I must say that the mention of various sums paid after such a tragic event is somewhat unpalatable, as no cost can be placed on a life, and no monetary sum can ever restore the loss that Mr Attard’s family and friends have suffered.
However, Mr Taylor submitted that the significance of these efforts and expenditures by the defendant company was that it reflected a commitment to "getting it right", that the lengths that it had gone to exceeded simply satisfying the concerns of the Worksafe Authority. He also submitted that such measures were relevant to the question of remorse.
I accept that the defendant company has gone to a good deal of time and expense since Mr Attard’s death, which is a matter that counts in its favour. On the other hand, it seems to me that the measures are fairly simple, logical and could not be said to be prohibitively expensive, which begs the question as to why such steps had not been taken before Mr Attard’s death. The risk had been well and truly identified, and although some reviews had been conducted, it seems to me that there was a distinct lack of rigour and investment put into minimising the high risk materialising. Such measures should have put in place long before Mr Attard’s death in view of the high level of risk the company knew its workers faced on a daily basis. The remedial measures also serve to highlight the degree to which the defendant fell short of its duty to provide and maintain a safe working environment so far as was reasonably practicable.
In saying this, I am well aware of measures that it went to above and beyond that which were required by the Worksafe authority after the incident.
However, in assessing the defendant company’s moral culpability, I also factor in that it did identify the risk in 2006 and did take some steps to address this, as opposed to doing nothing; albeit that such steps were obviously inadequate.
I factor in the defendant company's size, the nature of its business, and the number of Australian employees, being 15,194. The Defendant company’s two ships each take three round trips per week and ships approximately 200,000 loaded and 50,000 unloaded containers per year. There are approximately 400 container movements per sailing. The company has operated since 1986 as a public company, however before this, during the 1980s it was founded by the Toll Family. This has some relevance to the context in which the incident which claimed Mr Attard’s life occurred, and to the company’s criminal history. It gives some perspective in these ways, however, it also highlights the extent to which a number of its employees have been exposed to significant risk over a number of years.
An interview was offered to the defendant company but was declined, as is their right. I make no adverse finding in this regard so far as the question of remorse is concerned. The company was otherwise fully co-operative with the investigators. The prosecution submits that this aspect ought be treated in a neutral fashion, and I do so in all of the circumstances.
I accept that the company has demonstrated remorse for its offending.
Part of that demonstration has been pleading guilty at an early opportunity, which has saved the witnesses the time and trouble of giving evidence, and has saved the community the time and expense of contested proceedings. This entitles the defendant company to a significant discount in the penalty it would otherwise receive.
I take into account the Defendant company’s significant contributions by way of community sponsorship and donations, as well as promoting road safety campaigns, and providing employment and support for recovering drug addicts and those leaving gaol. These are most admirable contributions, and I give some weight to them. However, as the learned prosecutor submitted, in cases of this nature, general deterrence has to be given primacy.
In all of the relevant circumstances, I attach fairly significant weight to specific deterrence. In arriving at this finding, I have factored in the defendant company’s early plea of guilty, its co-operation and remorse, and the remedial measures it has now taken; however I have also factored in the serious nature of the offending, and the defendant’s criminal history, especially the Burnie matter.
I am most mindful of the principles set out in the various authorities which were relied on by the parties in respect of the correct approach to matters of this nature, and I have applied those principles in sentencing the defendant company. I have also considered the various penalties that have been imposed in other cases for breaches of the relevant provisions and for vehicular-pedestrian collisions; however, I have been unable to find a case which is on all fours with the case before me in all the circumstances.
All matters considered, and in view of the weight that I have determined ought attach to all relevant sentencing considerations, I am of the view that a most substantial fine ought be imposed on the defendant company.
Would Mr Stuart please stand up on behalf of the company?
The company is convicted and is fined $1 million.
Pursuant to s.6AAA, if not for the company's plea of guilty, I would have imposed the maximum fine of $1,299,240. Take a seat please, sir. What stay are you seeking?
75 MR TAYLOR: Sixty days, if Your Honour pleases.
76 HER HONOUR: I grant a stay of 60 days. Is there anything else arising?
77 MR TAYLOR: No, Your Honour.
78 MS KEATING: No, Your Honour.
79 HER HONOUR: Yes thank you, we will now adjourn.
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