SafeWork NSW v Autocare Services Pty Limited (No 2)

[2022] NSWDC 641

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Autocare Services Pty Limited (No 2) [2022] NSWDC 641

Hearing dates:

13 December 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Autocare Services Pty Limited was convicted on 13 December 2022.

(2)   The appropriate fine is $600,000 but that will be reduced by 25% to reflect the plea of guilty.

(3)   Order Autocare Services Pty Limited to pay a fine of $450,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Autocare Services Pty Limited to pay 75% of the prosecutor’s costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and 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 – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – transport driver performing running repairs to the air lines of a vehicle transportation trailer – deck of trailer descended and crushed driver – transport company should have prohibited drivers from carrying out air line repairs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 22, 21A, 26, 27, 28, 30A, 30B, 30D, 30E

Criminal Procedure Act 1986 (NSW), s 257B

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

SafeWork NSW v Autocare Services Pty Ltd [2022] NSWDC 547

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Autocare Services Pty Limited (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
G Livermore SC with B Anniwell (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Seyfarth Shaw Australia (Defendant)

File Number(s):

2021/117835

Judgment

1. On 15 May 2019 Mr Trent McIntosh was performing running repairs to the air lines of a vehicle transportation trailer. Mr McIntosh was employed by the defendant Autocare Services Pty Ltd (Autocare) as a heavy vehicle driver. Mr McIntosh died while performing that work, when a deck of the trailer descended and crushed him.

2. On 29 April 2022 Autocare entered a plea of guilty to the elements of the offence pleaded in the Summons filed on 27 April 2021. On 8 November 2022 the prosecutor was granted leave to amend the Summons. The Amended Summons alleged that Autocare was a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) and failed to comply with that duty and thereby exposed Mr McIntosh to a risk of death or serious injury contrary to s 32 of the Act.

3. Paragraph 13 of the Amended Summons pleaded the risk as follows:

“13. The risk was the risk of workers, in particular Mr McIntosh, suffering serious injury or death as a result of being struck and/or crushed by the movement of a deck on the trailer while undertaking maintenance work on the airlines of the trailer.”

4. The matter was set down for a disputed facts hearing before me on 8 November 2022. In a previous judgment delivered on 14 November 2022 (SafeWork NSW v Autocare Services Pty Ltd [2022] NSWDC 547) I noted that Autocare accepted that it committed a breach of duty by failing to take the measures particularised in pars 14(a) and 14(b)(v) of the Amended Summons, which pleaded as follows:

“14. The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr McIntosh, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a)   Prohibiting non-maintenance workers from undertaking any minor fault fixing or repair work on trailers; and /or

b)   In the alternative to (a) above, if non-maintenance workers were to undertake minor fault fixing or repair work on trailers then:

(v)   Enforcing a requirement that non-maintenance workers seek authorisation (from the maintenance supervisor) prior to any minor fault fixing on a trailer.”

5. I held that the prosecutor had failed to establish that the balance of the matters pleaded in par 14 of the Amended Summons were reasonably practicable.

6. The maximum penalty for the offence is a fine of $1,500,000.

Agreed Facts

7. The Agreed Facts are set out in par 12 of my previous judgment. I will not repeat them but do incorporate them into this judgment by reference.

Evidence for the Prosecutor

8. The evidence tendered by the prosecutor is listed in PX 2 and is set out in pars 13-18 of my previous judgment.

Evidence for the Defendant

Affidavit of Mr Alan Blake

9. Mr Alan Blake swore an affidavit on 25 November 2022 (DX 2).

History of Work Before Employment with Autocare

10. Mr Blake was a police officer with the NSW Police Force from 1981 to 2006, during which time he was a member of the Accident Investigation Squad. He later worked intermittently in driving roles, became a member of the Rural Fire Service (RFS), trained as a firefighter and tanker driver/operator and was certified to operate RFS trucks off road.

11. Mr Blake has held a heavy rigid (HR) vehicle licence since 1999 and a heavy combination (HC) vehicle licence since 2009.

12. Mr Blake said that his experience has given him a strong understanding about road safety and compliance and what is needed to keep equipment safe and roadworthy under the National Heavy Vehicle Regulations standards. He did not have a mechanical or engineering background but did have experience as a driver and operator of car carrying trailers.

Employment With Autocare

13. Mr Blake worked as a truck driver at Autocare from 2012 to 2018.

14. In 2018 Mr Blake worked as the assistant to Fleet Maintenance Supervisor Mr Chris Fosteris. He then became the Fleet Maintenance Supervisor following the resignation of Mr Fosteris in December 2018. He still held this position in May 2019.

15. In this role Mr Blake was responsible for the coordination and oversight of service and repairs of Autocare’s truck and trailer fleet and car fleet. He decided which issues were to be prioritised for immediate repair or deferred to the next routine service. He also made decisions about any upgrades or modifications to trailers and trailer operations.

16. Mr Blake ensured that the fleets complied with NSW safety regulations and renewed the vehicle registrations of all the Autocare NSW trucks, trailers and cars. Mr Blake dealt with all the safety and roadworthy issues involving the heavy vehicle fleet and ensured they were safe, compliant and able to pass random and scheduled inspections at RMS Inspection Stations.

17. Mr Blake resigned from Autocare in January 2020 and has ceased all paid employment.

Training and Accreditation Process at Autocare

18. Mr Blake was provided with driver training when he started at Autocare in 2012.

19. He underwent a three-day safety and site induction carried out by Mr Alan Goodridge, the training officer at the time. Mr Blake was walked around various trucks and trailers and had the various parts identified. The deck locking pins were demonstrated to him and he was told not to place any part of his body under a deck that was not supported by the locking pins. This instruction was repeated numerous of times in Mr Blake’s induction training. He was told that breaches of safety regulation, including interfering with the proper operation of the trailer controls, would likely result in immediate dismissal.

20. The driver training included a “buddy training” regime in which a new driver was paired with an experienced driver for about two or three weeks. The new driver would load and unload vehicles and operate the truck and car-carrying trailer and equipment under the supervision of their buddy.

21. To become an accredited driver for Autocare, a new driver had to pass an on-site examination carried out by a training officer who assessed the driver’s capabilities. This accreditation meant the driver was deemed to be trained to safely operate a trailer. This was a formal accreditation process which all Autocare drivers went through.

22. Mr Blake participated in the new driver training program, including buddy training, in April 2012. He eventually became accredited to operate several car-carrying trailers, including the Doric H4.

23. The driver training also included training on speed, fatigue, logbooks and safety. This involved “line of fire” training, which taught drivers to recognise when there is potential for a movement of force in the equipment and to ensure they are not in harm’s way of that movement, for example not going under decks that were not supported by pins that were locked out.

24. During the induction and buddy training, it was stated numerous times that only hands were to touch or operate the deck controls. The controls were never to be operated by feet, elbows or wedged open with any object.

25. Mr Blake stated that this training and instruction was typical of that provided to all drivers.

Autocare’s Fleet Maintenance System

26. Mr Blake’s role as Fleet Maintenance Supervisor relied on him being informed about faults or repairs needed by the drivers. A driver could call, text or speak to Mr Blake personally in order to notify him about a maintenance issue, or alternatively contact the fleet controller for his or her shift to report an issue.

27. Drivers reporting any maintenance issues were required to complete a Serviceability Report. This was a sheet kept in the fleet controller’s office at each site where the drivers’ shifts commenced. Mr Blake did not have to wait to receive the Serviceability Report to authorise the repair. He often had trucks or trailers repaired immediately before he acquired the paperwork.

28. The Serviceability Report was complemented by a priority rating system. Drivers assessed whether the issue required them to ground their equipment immediately, tagging and locking it so it could not be used. The equipment then remained out of service until repaired and cleared by a licensed repairer. That protocol was never overridden to Mr Blake’s knowledge.

29. Once informed of an issue, the fleet controller recorded it in the Shift Operations Report. This was reviewed by Mr Blake at the commencement of his shift so he could determine any issues and prioritise maintenance as required. He usually inspected the faulty truck or trailer personally to identify if there were any other issues that needed rectification. Mr Blake deferred maintenance to the next service unless he determined it was unsafe or not fit for purpose, in which case the equipment would be stood down and sent straight to the repairer.

30. Mr Blake kept a fleet status whiteboard in the Port Kembla office which recorded maintenance issues for trucks and trailers. This whiteboard was visible to all other office staff, including fleet controllers and load planners. Continuous real time fleet status was displayed for all office staff and drivers.

31. Servicing occurred relatively frequently because of the mileage on the trucks and trailers. Mr Blake then liaised with the repairers about scheduling the work, having regard to the Serviceability Reports.

32. Autocare engaged multiple companies to provide them with mechanical and engineering services. Engineering services for trailers were usually carried out by JME Engineering at Unanderra. Mr McIntosh’s truck and trailer were usually serviced by Illawarra Truck Repairs.

Air Line Leaks on Car-Carrying Trailers

33. All car-carrying trailers had an air system and most ran on both a hydraulic and a pneumatic system. The Doric H4 had an extensive pneumatic system that controlled valves and switches. Trailers had many metres of air lines, with most being a 6 mm plastic air line.

34. Over time, due to exposure to heat and the elements, air lines frequently cracked and leaked air. The part of the trailer or deck lock connected to the air line then either ceased working or worked in a diminished capacity.

Repairing an Air Line Leak

35. When Mr Blake started at Autocare, drivers were repairing air line leaks. He was taught how to locate and fix air line leaks by his buddy in buddy training and in on-the-job training from Mr Goodridge.

36. Mr Blake explained that an air line leak is located by forcing air through the air line until a hissing sound is heard which indicated the leak. This was done by pressing the control button that corresponded with the part of the trailer which was not functioning. One driver pressed the button while another walked along the outside of the trailer to listen for the leak. If the driver was alone, he or she would hold the button and listen for the leak from the control panel area. Fixing the leak involved cutting the air line either side of the leak with a pair of cutters and re-joining the air line with a plastic joiner.

37. There was no formal procedure or formal training for this at Autocare. Drivers were shown how to fix simple air line leaks by other drivers and maintenance personnel.

38. When Mr Blake took over as Fleet Maintenance Supervisor, he permitted minor air line leak repairs to be treated as an exception to the rule that all repair and maintenance issues were to be reported to and carried out by Maintenance. From time to time Mr Blake supplied more joiners for 6 mm hoses to drivers who requested them to replenish their air line repair kits.

39. Mr Blake stated that he did not imagine with the systems in place and safety instructions extant that a driver could be injured while carrying out a minor air leak repair. He could not recall a single incident where a driver suffered any injury or there was any “near miss” involving minor air leak repairs. It was a simple and straightforward task provided the safety rules were adhered to. The rules were avoiding line of fire potential energy risks (being under an unsupported deck) and not working at a height over two metres.

Air Line Repair Kits

40. Air line repair kits were introduced at Autocare around 2018.

41. Air line leaks were a common problem, especially in the Doric H4 trailers. Prior to the provision of the kits, drivers could help themselves to the equipment store at the depot to get what they needed to repair a leak.

42. The kits contained the equipment needed to repair a leak, such as cutters, lengths of air lines, joiners and cable ties. It did not contain masking tape of the kind Mr Blake saw at the incident. The kits were placed in each truck as part of the day-to-day equipment for driving the trucks.

43. The kits were put together by Autocare at the request of the drivers and issued to facilitate drivers delivering their loads and returning to the depot in a reasonable time. This was because air line leaks were seen as something that could be repaired quickly and safely. If drivers felt they could repair the leak, the tools were available to them to do so without having to wait for service personnel to attend and assist.

Pre-Approval to Repair an Air Line Leak was Not Required

44. Autocare’s maintenance system required drivers to obtain authorisation from their maintenance supervisor in relation to any minor fault. However, that policy was not enforced with respect to minor air line leaks. Drivers routinely carried out minor air line repairs without seeking authorisation from their shift’s Fleet Controller or from Mr Blake. This was because this type of repair was regarded as a simple, safe and quick task. It was the system in place when Mr Blake took over the role of Fleet Maintenance Supervisor, which he continued.

45. Drivers were not expected or required to repair air line leaks. Drivers decided whether it was a simple and quick repair that they could do or a repair for which they needed to call for assistance. Autocare had a 24/7 maintenance hotline for drivers and contractor arrangements in place with Pirtek and Enzed throughout NSW to attend and repair pneumatic and hydraulic faults after hours wherever the breakdown was located. This arrangement was used numerous times.

Control Buttons on a Doric H4 Trailer

46. The controls on the Doric H4 trailer were a combination of air buttons and hydraulic levers. To move the deck, the operator had to operate the hydraulic lever up or down while pressing the air button. This was a two-handed operation. Mr Blake stated that his understanding was that it was designed this way as a safety measure to ensure that both of the operator’s hands are on the controls and were therefore not near the moving decks.

47. The well deck (also known as the belly deck) on the Doric H4 trailer was the only exception to this safety feature. The well deck was controlled by four buttons and air-activated hydraulics. Two buttons raised or lowered the front of the well deck and two buttons raised or lowered the rear of the well deck. The well deck did not have locking pins. The well deck could not be reached and activated at the same time by a single operator due to the position of the controls.

48. The air control buttons and hydraulic levers for the decks on the Doric H4 trailer were spring-loaded so that when pressure is removed from the buttons or levers, they automatically return to their uncompressed position. When an air control button is compressed, air flows along the air line to the corresponding deck lock to unlock it. When the button automatically returned to its uncompressed position, the air ceases to flow to the deck lock and it re-engages the deck lock.

49. The air control buttons were designed with a spring-loaded system to ensure that they could only be actively engaged with finger or hand contact. The driver had to be standing at the control panel and actively compressing an air button and simultaneously moving a hydraulic control lever to move a trailer deck. When a driver moved away from the control panel and removed his or her finger or hand from the button and lever, the hydraulics stopped activating and movement of the deck would stop.

Mr McIntosh’s Use of Masking Tape

50. Mr Blake attended the scene of the incident on 15 May 2019.

51. Mr Blake saw Mr McIntosh’s usual truck and trailer combination which he had used on his shifts for about three years. The trailer was unloaded, the main deck was down and the front flip deck was raised. Mr Blake thought this was unusual and stated that the trailer decks were not in their normal position when unloaded and travelling back to base.

52. The police asked Mr Blake to assist them. Mr Blake noticed the truck engine was running and there was a smell of burnt hydraulic fluid. He looked at the front of the truck for any sign of a leak of hydraulic oil but there was no leak nor was there oil on the road. The hydraulic oil tank/reservoir was hot and radiating heat.

53. After inspecting the truck, Mr Blake then approached the trailer. Next to Mr McIntosh’s body he saw one of Autocare's air line repair kits on the ground together with air line connectors and a pair of side cutters directly under Mr McIntosh.

54. Mr Blake was shown the control panel for the well deck on Mr McIntosh’s Doric H4 trailer. The button to control the “down” direction for the well deck was compressed with masking tape scrunched up tightly into a ball. The ball of tape was wedged against the well deck air button and the side of the control housing, jamming the button in the “ON” position.

50. Mr Blake confirmed to SafeWork NSW that he was he not aware of masking tape or any other item ever being used by driver to override the controls on their trailers. This was the first time he had ever seen anything like this take place on Autocare trailers. Mr Blake stated his shock as this was contrary to everything Autocare had trained its drivers to do. It had never been suggested by anyone within Autocare that safety mechanisms, handles, valves or switches ever be tampered with in any way whatsoever. In his view, Autocare was very focused on safe work practices and the company culture was built around getting home safely every day.

51. Mr Blake was likewise shocked to see that Mr McIntosh appeared to have placed himself under the suspended well deck. He thought that all drivers understood that they were never to place themselves in the “line of fire” and that included never being under an unsupported trailer deck.

After the Incident

57. On 16 May 2019, the day after the incident, Senior Management of Autocare directed that drivers were not permitted to undertake any minor repairs or maintenance, including minor air leak repairs. The air line repair kits were removed from the fleet. Drivers were required to report all air leaks and directed to the nearest repairer to have their vehicle repaired, or if the vehicle was not driveable, a qualified maintenance contractor was to attend to carry out the repair.

58. Shortly after the incident, Mr Victor Tello, the CEO of Autocare at the time, issued a nationwide written direction that no truck driver or maintenance supervisor or assistant was to perform any maintenance task on any truck or trailer at any time, including minor air leak repairs. Copies were placed around the depots. It was also spoken about at a subsequent toolbox meeting with all Autocare’s drivers. Mr Tello’s direction stated that immediate dismissal would occur if the direction was disobeyed.

Cross-examination of Mr Blake

59. In cross-examination Mr Blake agreed that identifying an air leak at night, when a driver is by himself, may not be a simple task.

60. Mr Blake conceded that he did not organise any training for drivers in relation to carrying out air line repairs.

61. Mr Blake said in cross-examination that the distance between the bottom of the well deck and the side rail was about 40 cm. The air line ran inside the lower left side of the trailer frame. Mr Blake accepted that to access that air line a driver would have to put part of his body into that gap.

62. Mr Blake was asked in cross-examination whether he had ever instructed drivers that they should not work on the air lines of the well deck. His initial answer was that air line repairs in relation to the well deck were normally sent to a repairer because of the tightness of the space and the technical nature of the repair. When the question was put again, Mr Blake accepted that he had never instructed drivers that they should not work on the air lines of the well deck.

Affidavit of Mr Andrew Peter Simpson

63. Mr Andrew Peter Simpson swore an affidavit on 30 November 2022 (DX 1). Mr Simpson is the Chief Executive of LINX Australia. He has been in this role since 1 April 2022.

64. Mr Simpson was previously the Chief Operating Officer of LINX Cargo Care Group (LINX Group), which he commenced in June 2018.

65. Mr Simpson is responsible for all business units within the Australian segment of the LINX Group, excluding Geelong Port and Pedersen. As part of this, he oversees the Autocare business.

66. Mr Simpson reports directly to the Group CEO, Mr Brett Grehan.

Mr Trent McIntosh

67. Mr McIntosh was continuously employed by Autocare for seven years. Mr Simpson did not personally know Mr McIntosh but he had, to the best of his knowledge, attested to what was Mr McIntosh’s work ethic, value within the Autocare team, high standard of work and love for his family. Autocare offered its sincere condolences to Mr McIntosh’s family, friends and workmates. Mr Simpson stated Autocare’s deep regret and sincere apology for the failings admitted in the Amended Summons.

68. Many employees had ongoing difficulties dealing with this tragedy. It was Mr Simpson’s view that the company has made every effort to provide support and is committed to ensuring this tragedy is not repeated.

69. Mr Simpson and Autocare acknowledged that the incident has had a dramatic and ongoing impact on Mr McIntosh’s family. He has read the Victim Impact Statements of Mr McIntosh’s wife Ms Lynnette McIntosh, his mother Ms Mary McIntosh, and his sister Ms Stacey McIntosh. Mr Simpson stated that he could not imagine the grief and loss that Mr McIntosh’s family had and continued to experience. The void created by the tragedy is painful and felt in the everyday life of Mr McIntosh’s family.

Support to Mr McIntosh’s Family

70. The LINX Group CEO at the time Mr Anthony Jones, and Autocare’s NSW State Manager Mr Sam Boardman, met with Mr McIntosh’s wife and two sons in the days following the incident and has remained in contact since that time. Ms Eliza Anning, the then Director of Corporate Services, met with Mrs McIntosh to assist her in navigating the workers compensation claim requirements and documentation.

71. Autocare paid the equivalent of Mr McIntosh’s average salary to his family until the workers’ compensation payment was made in or around January 2020. Autocare also established a GoFundMe page for financial contributions from employees and friends of the family to support Mrs McIntosh and her sons. The amount of funds raised was then matched by Autocare. Autocare financially supported counselling sessions for Mrs McIntosh and her sons and paid the funeral costs. Employees from Autocare and LINX Group attended the funeral to support the family.

72. In 2020 a bridge between two of Autocare’s sites in Port Kembla was opened and named after Mr McIntosh. Mr McIntosh’s family attended a small opening ceremony to remember Mr McIntosh and formally name the bridge.

Autocare’s Business

73. Autocare was first established in 1961 and has had five changes of ownership since its inception. Autocare now is part of the LINX Group, a provider of diversified logistics infrastructure solutions made up of five business units – Autocare, LINX, C3, Geelong Port and Pederson – situated in both Australia and New Zealand.

74. Autocare was a supplier of vehicle transport, processing and storage services. It also operated a small South Australian-based freight forwarding and customs clearance business called Smith Channon.

75. Autocare was a member of the Al Group. LINX Group was a member of the Australian Logistics Council and held NHVR accreditation.

76. Autocare operated in seven different locations across Australia in each State and in the Northern Territory. Autocare held approximately 30% of the market share in respect of the activities it undertook.

77. Autocare had the equivalent of 418 full-time employees and engaged 101 subcontractors. There were 119 employees based in NSW and 15 subcontractors who operated in NSW.

Autocare’s WHS Approach and Systems at the Time of the Incident

78. Autocare had and retains a comprehensive safety management system designed to eliminate or minimise the risks to the health and safety of its workers so far as is reasonably practicable.

79. New Autocare drivers underwent training in line with Autocare’s Driver Accreditation Procedure, which relevantly included:

1. General company and relevant site induction training.

2. Driver training, including:

1. The provision of a Drivers Operations Manual containing many of the Standard Operating Procedures (SOPs) for various trailers, and other procedures and processes referred to below.

2. Specific equipment training on trailers and verification of competency.

3. The following maintenance process requirements:

1. Drivers were not to undertake any electrical, mechanical or other maintenance on trucks and instead were required to contact their supervisor. Drivers were required to seek permission from the Maintenance Manager to carry out minor repairs.

2. Drivers were to report during every shift any matters of concern to the Fleet Controller. If the issue related to maintenance during the day shift, it had to be reported to the Maintenance Supervisor.

3. Drivers were required to report maintenance matters to the Maintenance Supervisor through serviceability reports given to the Fleet Controller or Maintenance Manager. This report included a priority rating to assist in appropriately managing matters.

4. SOP training for relevant work and equipment.

5. Fatigue management.

6. Emergency response procedures.

7. Incident reporting.

8. EPOD use.

9. Tie down procedures.

10. Vehicle delivery procedures.

11. WHS policies and procedures.

12. “A Booking” procedure for provision of transportation services to non-dealer/OEM customers.

3. Critical Risk Controls and Life Saving Rules.

4. Basic Fatigue Management certification (externally provided).

5. Provision of contact numbers for 24-hour roadside assistance and 24-hour internal support.

6. Being partnered with a buddy driver for a period of time before the final accreditation assessment.

80. Drivers and other workers received ongoing information, training and instruction to reinforce compliance with processes, systems and procedures, including by way of:

1. Toolbox talks.

2. Key operations or safety measures.

3. Safety engagements carried out by management and documented in the Lifeguard system.

4. Stop for Safety sessions to reinforce processes and controls and provide a forum for workers to raise any hazard or risk concerns.

81. Autocare’s safety systems and procedures also included:

1. Various health and safety policies.

2. SOPs for the specific trailers, including the Doric H4 trailer.

3. SOPs for various tasks.

4. Risk reviews and control treatment plans in a documented risk register.

5. Driver shift plans.

6. Pre-start checks.

7. Review of loaded trailers by the fleet controller at exit points of Autocare compounds.

8. End of shift reports prepared by fleet controllers for every transport shift which are reported to the NSW Transport Operations Team.

9. Regular review and auditing of hours for compliance with the fatigue management procedure. Autocare also holds accreditation for Basic Fatigue Management under the National Heavy Vehicle Accreditation Scheme, which requires independent auditing of Autocare’s system.

10. Regular systemised maintenance of trucks and trailers by external providers.

11. Audits undertaken by LINX Cargo Care Group auditor.

12. An incident investigation and reporting procedure.

13. The use of the Lifeguard system where incidents, hazards and near-misses are reported. Drivers can also log incidents, hazards and near-misses directly or request a matter to be logged by a fleet controller. This is a priority rated system. Once logged, relevant managers and health and safety advisors are required to review and allocate any actions to address reported matters and the progress of these actions can be tracked by Autocare.

14. Disciplinary procedures for when procedures are breached, including tampering with equipment, which was classified as a form of serious misconduct.

15. Safety, Health and Environment Council at National and State level.

WHS Expenditure and Investment in Safety

82. Mr Simpson stated that safety is integral to how Autocare operates through its planning and design and so direct expenditure on safety is not easy to calculate. However, it is his understanding that $5,517,413 is forecast to be spent on health, safety and environment (HSE) in 2022, mostly budgeted in the HSE department on salaries and labour. Beyond this were amounts directly related to safety such as personal protective equipment, signage and other items that are expensed within numerous branch level cost centres.

Corporate WHS Management – Due Diligence

83. Autocare’s Senior Leadership Team was led by an Executive General Manager who reported directly to Mr Simpson. Autocare had a sole Director who was also the LINX Group CEO. Autocare’s Senior Leadership Team was overseen by the LINX Group Senior Leadership Team.

84. All actual and potential high-risk incidents and serious safety incidents were reported to the LINX Group CEO, Autocare Director and the LINX Group Board under Autocare and LINX Group’s incident notification procedures. Mr Simpson was responsible for ensuring that this occurred.

85. The LINX Group Senior Leadership Team received monthly reports outlining Autocare’s safety performance and reviewed the risk register for the Autocare business at monthly meetings. The LINX Senior Leadership Team also attended Autocare sites and conducted safety engagements.

86. LINX Group used a tool called Lifeguard which generated daily reports of safety hazards, injuries and near-misses. Mr Simpson received an email alert if any high-risk incident was entered into the Lifeguard system. He reviewed these reports and could inquire about the actions taken and the controls implemented. Mr Simpson also received verbal reports in the event of high-risk incidents.

87. There were also management reports that summarised the safety hazards, near-misses and incidents as well as the corrective actions. These were discussed in various management forums and meetings. During the Chief Executive Safety Council meetings, Mr Simpson reviewed and considered hazard and risk trends and those reported through Lifeguard. In these reviews, he dug deeper into specific items and took suitable action as required. In Senior Leadership Team meetings, trends were reviewed and direction was provided to relevant individuals.

88. Mr Simpson also received information on hazards, injuries and/or near-misses in monthly HSE reports by division and Group, and monthly management Board reports. Senior Leadership Team meetings reviewed and discussed the hazards, injuries and near-misses and any trends and provided direction to relevant individuals within the business for actions to be taken to enhance controls.

Steps Autocare Has Taken Since the Incident

89. Autocare cancelled the night shift on the evening of the incident and informed drivers they were only required to return to driving when they felt ready to do so.

90. Mr Victor Tello, the CEO of Autocare at the time, issued a mandatory Safety Direction nationwide to drivers. The Safety Direction was delivered in hard copies placed around the depots and during toolbox talks. It said that:

1. No repairs on any aspect of a truck are to be carried out by drivers.

2. All repairs are required to be undertaken by qualified maintenance personnel.

3. All air line repair kits and equipment relating to the repair of air lines are to be removed from trucks.

4. In the event of mechanical concerns, drivers are to pull over and contact their supervisor.

91. Autocare provided refresher training on “line of fire” risks and reinforced with drivers that they were not to put themselves in a position on car-carrying trailers where they are in the line of fire of a suspended deck or uncontrolled energy force, unless it has been locked into place with deck pins or an isolation device.

92. Autocare also conducted an audit of all external maintenance providers by an appropriately qualified person.

Support to the Workforce

93. Autocare arranged for a psychologist/counsellor to attend the site for all employees and subcontractors for many days after the incident and then again for follow-up days in the weeks and months that followed.

94. Senior managers were flown in from other parts of the country to take over the management of ongoing operations to allow the on-site management team to emotionally deal with the event in the stressful weeks following Mr McIntosh’s death and in the subsequent police and SafeWork NSW investigations.

WHS Compliance History

95. Autocare had never been prosecuted by a regulator for non­compliance with the Act in any jurisdiction in Australia. No findings of guilt or convictions have previously been recorded against it.

96. Autocare fully cooperated with SafeWork NSW and NSW Police in their investigation into the incident.

Consideration

97. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective Seriousness of the Offence

98. 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 The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at pp 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] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

99. 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] HCA 67; (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].

100. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“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.”

101. 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].

102. 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] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

103. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

104. The Court of Criminal Appeal has 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. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than 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.”

105. Further at [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 an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

106. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

107. My findings about the defendant’s level of culpability are based upon the following:

1. The general risk of drivers carrying out running repairs was actually known to Autocare. It had in place a policy prohibiting drivers from carrying out running repairs on trailers but failed to observe or enforce its own policy. The existence of the policy showed that Autocare appreciated that there was a risk.

2. The particular dangers posed by the tightness of the space under the well deck, the need to get under the deck to access the air lines and the lack of locking pins for the well deck were particular risks known to Autocare (see the cross-examination of Mr Blake). However, there was no evidence that these risks were part of the “buddy” training given to new drivers.

3. Drivers had been performing running repairs on air leaks for some time without incident. However, there was a not insubstantial risk that an unqualified driver could make a mistake, or be ignorant of the risks associated with the well deck, with catastrophic consequences. Drivers were not mechanics.

4. The air lines to the well deck were hard to access and there was the added danger that the well deck could not be supported by locking pins when work was carried out on it. No doubt it was for those reasons that most air line repairs to the well deck were performed by qualified mechanics.

5. There was no training about repair of air lines provided to drivers by Mr Blake. He accepted that the repair of an air line at night by a driver working alone may not be a simple task.

6. The potential consequences of the risk were death or serious injury.

7. Autocare had qualified mechanics who could have carried out repairs to air line leaks. There was no practical burden or inconvenience involved in taking appropriate steps, as Autocare already employed mechanics to repair trailers.

8. The breach of duty caused the death of Mr McIntosh.

9. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

108. I find that level of culpability of Autocare is in the upper half of the mid range.

Deterrence

109. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

110. The penalty must reflect the need for specific deterrence. Autocare is still conducting a business involving transport and logistics. It employs 418 workers and engages 101 subcontractors.

Aggravating Factors

111. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

112. Autocare has no previous convictions in 61 years of operations in a notoriously dangerous industry: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. This remarkable safety record will result in moderation of the penalty which would otherwise be imposed.

113. Autocare is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this.

114. Autocare is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

115. Autocare has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

116. Autocare has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the death of Mr McIntosh was caused by its actions.

117. Autocare entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Autocare a 25% discount for an early plea.

118. Autocare gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

119. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. 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. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

120. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

121. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

122. The defendant was convicted at the sentence hearing on 13 December 2022.

123. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a). A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

124. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

125. By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim’s death on the family victim or other members of the primary victim’s immediate family. Members of a primary victim’s immediate family include children and grandchildren of the deceased – s 26.

126. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community – s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.

127. The court received the written Victim Impact Statements of:

1. Ms Lynette McIntosh, the wife of Mr McIntosh, dated 26 October 2022 (PX3).

2. Ms Mary McIntosh, the mother of Mr McIntosh, dated 6 November 2022 (PX4).

3. Ms Stacey McIntosh, the younger sister of Mr McIntosh, dated 6 November 2022 (PX 5).

Victim Impact Statement of Ms Lynette McIntosh

128. Ms Lynette McIntosh recounted the pain and shock she experienced on the morning that she was informed of her husband’s passing and the added grief of having to tell their two sons. They were only 11 and 12 years old at the time of the incident.

129. Mr McIntosh was everything to her and her sons and now their lives have changed forever.

130. She discussed the importance of the daily conversations with her husband and the many things she would have spoken to him about, but can’t discuss with anyone else. She no longer has his support with their sons. This was particularly difficult during holidays, birthdays and at Christmas.

131. Ms McIntosh also expressed her grief for her sons and the pain they were going through. She is saddened by what they will miss out on experiencing with their father. There are times when the boys can’t sleep and cry at night.

132. Ms McIntosh further expressed her appreciation for the support she received from family and friends as well as for her sons.

Victim Impact Statement of Ms Mary McIntosh

133. The last time Ms Mary McIntosh spoke to her son was when she heard his happy voice on Mother’s Day. The morning she found out about her son’s death will stay with her forever.

134. She discussed the sadness and disbelief she felt during Mr McIntosh’s funeral as well as her pride for her son.

135. It is clear Mr McIntosh was well-loved. Many friends travelled long distances to remember him, including his TAFE teacher from the early 1990s. His colleagues spoke highly of him at his funeral service. One colleague performed the New Zealand Haka in his honour.

136. Ms McIntosh expressed her torment caused by the loss and how her anxiety and stress had increased. She and Mr McIntosh’s father were greatly assisted by a grief counsellor in the early stages.

137. Mr McIntosh’s death also greatly affected Ms McIntosh’s relationships with those around her and especially with her family. Family gatherings, Christmas and Easter with her son and grandsons were no longer possible.

138. Ms McIntosh has had a hard time coming to terms with the loss of her son. She was grateful for the opportunity to express her deep regret and sadness.

Victim Impact Statement of Ms Stacey McIntosh

139. Ms Stacey McIntosh spoke of the enormous impact Mr McIntosh’s death had on her and her family. He was much loved by his family and never hesitated to help her.

140. Ms McIntosh poignantly described her loss of a Christmas tradition she had with her brother. It is now painful to even think about it.

141. Ms McIntosh also discussed how she had developed a fear of losing her partner when he went to work, as she had lost her brother. This caused her anxiety and depression.

142. Her brother’s death impacted her entire disposition and is felt through her daily life. She has particularly struggled with sleepless nights, feelings of dread and thinking the worst of every situation.

143. Ms McIntosh also stated that she wished that she and her parents could have received sympathies and condolences from Autocare to recognise the loss the family has suffered.

144. She said that she wishes that no other family has to endure such pain and suffering.

Costs

145. Counsel for the prosecutor submitted that there should be an order for the defendant to pay the costs of the prosecutor. Counsel also acknowledged that there was a discretion in relation to such an order.

146. Senior counsel for the defendant submitted that in exercising the discretion, the court should come to the view that no order for costs should be made in favour of the prosecutor. Senior counsel pointed out that Autocare pleaded guilty at an early stage to a contravention based on par 14(a) in the Amended Summons. Further, Autocare pleaded guilty to a contravention based upon par 14(b)(v) in the Amended Summons, when that subpar was amended during the disputed facts hearing. It was submitted that Autocare had succeeded on all of the issues that were contested at the disputed facts hearing. Senior counsel submitted (MFI 2, par 54) that “it is plain that those costs [of the disputed facts hearing] would far outweigh the costs incurred by the prosecutor in relation to the plea and sentence hearing in respect of the matters to which Autocare pleaded guilty”.

147. I do not accept that submission. There is no evidence as to the quantum of costs involved in the disputed facts hearing, as opposed to the costs of the prosecutor in bringing the proceedings and preparing them for trial, as well as the costs of the sentence hearing. I deal below with my own “broad brush” approach to the apportionment of costs.

148. Section 257B of the Criminal Procedure Act 1986 (NSW) provides that “A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies…”.

149. The operation of s 257B in the context of work health and safety prosecutions was considered by the Court of Criminal Appeal in Bulga. The court said at [219] that costs are discretionary and that the trial judge is ordinarily in the best position to make an assessment of the time and importance of different issues where a party has succeeded on some and failed on others.

150. The approach to awarding costs based upon separate issues in civil proceedings also applies in criminal proceedings, with the qualification that regard must be had to the fact that the prosecutor has a public duty to put all material issues before the court: Bulga at [221].

151. The Court of Criminal Appeal recognized at [231] that when apportioning costs, mathematical precision is not possible, but it is incumbent on the trial judge to identify the considerations which led him or her to apportion in a particular manner.

152. The Court of Criminal Appeal identified some of the factors to be taken into account at [233]-[235] as follows:

1. An evaluation by the trial judge of the time particular issues took in terms of evidence and submissions.

2. Whether the prosecutor was successful in establishing a breach of the Act (although this factor is not relevant in this case, given that Autocare pleaded guilty).

3. Whether the prosecutor failed in demonstrating that some of the proposed methods were reasonably practicable.

4. Whether the sentence hearing resulted in the submissions of the prosecutor or the defendant being favoured.

153. In coming to a conclusion in relation to an appropriate costs order, I make the following findings:

1. The prosecutor had a public duty to bring these proceedings and was justified in doing so, inter alia, by the plea of guilty entered by Autocare.

2. There would have been considerable work done by the prosecutor, and considerable costs incurred, in formulating the charge, drafting the pleadings, collating the evidence to be tendered against Autocare and preparation generally.

3. There were costs involved in appearing before the court on eight directions hearings before a plea of guilty was entered.

4. Autocare pleaded guilty to a failure to eliminate the risk by forbidding drivers from carrying out running repairs to trailers.

5. Autocare pleaded guilty to an amended particular, when such amendment was only granted during the disputed facts hearing.

6. Autocare was successful on the disputed facts hearing and the prosecutor failed to establish the other measures pleaded in par 14 of the Amended Summons.

7. The cross-examination of Mr Blake on the sentence hearing, while short and to the point, considerably cut down the force of his evidence.

8. The submission made by counsel for the prosecutor that the offence fell in the mid range of objective seriousness was accepted and the submission by senior counsel for Autocare that the offence fell in the lower range of objective seriousness was rejected.

154. Doing the best I can, and taking into account the matters set out above, I find that the appropriate order is that Autocare should pay 75% of the costs of the prosecutor.

Penalty

155. My orders are:

1. Autocare Services Pty Ltd was convicted on 13 December 2022.

2. The appropriate fine is $600,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order Autocare Services Pty Ltd to pay a fine of $450,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Autocare Services Pty Ltd to pay 75% of the prosecutor’s costs.

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Decision last updated: 16 December 2022