WorkCover Authority (NSW) v Sarjame Storage Pty Ltd

[2015] NSWDC 151

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of NSW v Sarjame StoragePty Ltd [2015] NSWDC 151
Hearing dates:	25 March 2015
Date of orders:	25 March 2015
Decision date:	25 March 2015
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	The defendant has already been convicted. I fine the defendant the sum of $250,000, with a moiety of the fine to the WorkCover Authority of New South Wales. The defendant is to pay the prosecutor’s costs in an agreed sum of $22,500.
Catchwords:	Work Health and Safety Act ss 19(1) and 32 – plea of guilty – worker fatally injured by frontend loader being used to load grain hoppers – duty of employer to ensure health and safety of employees – absence of risk assessment and traffic management plan – foreseeability of risk – preventability of risk – specific and general deterrence – implementation of safe work practices following incident – no prior convictions – early guilty plea – remorse – good corporate character of defendant – victim impact statement – defendants capacity to pay
Legislation Cited:	Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	WorkCover Authority of NSW (Prosecutor) Sarjame Storage Pty Ltd (Defendant)
Representation:	Counsel: Ms E James appeared on behalf of the Prosecutor Mr J Darams appeared on behalf of the Defendant
File Number(s):	2014/250026

Judgment

1. In this matter the defendant has pleaded guilty to a charge that on 19 February 2013 at the Boolcarrol Grain Storage Depot at Wee Waa it being a person conducting a business or undertaking having a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 to ensure so far as reasonably practicable health and safety of workers engaged by it while the workers were at work in the business of undertaking failed to comply with that duty and the failure to comply with that duty exposed Maurice Anthony Smith to a risk of serious injury or death contrary to s 32 of the Act.

2. I have heard submissions on sentence. At this point I will defer for a short moment the question of sentence but in the meantime I convict the defendant of the offences charged. I will proceed now to receive victim impact statements and then proceed with the sentencing process.

3. It seems that I can take account of the victims’ impact statements only to the extent that the harmful impact on the persons concerned is an aspect of harm done to the community.

4. The defendant is charged that on 19 February 2013 at Boolcarrol Grain Storage Depot in Wee Waa, it being a person conducting business or undertaking who had a health and safety duty under s19(1) of the Work Health and Safety Act2011 to ensure so far as is reasonably practicable the health and safety of workers engaged by it while the workers were at work in the business or undertaking failed to comply with that duty and the failure to comply with that duty exposed Maurice Anthony Smith to a risk of death or serious injury contrary to s 32 of that Act.

5. The defendant has pleaded guilty to the charge. A little earlier I convicted the defendant.

The legislation

6. Section 19(1) of the Work Health and Safety Act provides:

“A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.”

7. Section 32 relevantly provides:

“A person commits a Category 2 offence if:

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.”

8. The section proceeds to specify penalties.

THE FACTS

9. At Wee Waa, was a storage site being Boolcarrol Grain Storage Depot. It was owned by a business called Greentree Farming. GrainCorp leased the site from Greentree. This was for grain storage and handling. The defendant contacted with GrainCorp. Under the contract GrainCorp was responsible for the day to day overall management of the site and its operations. The defendant was responsible for the day to day management of the tasks required to receive, out load and manage grain quality into and out of the bunker areas of the site. The defendant was also required to follow GrainCorp’s work and safety procedures. Equipment at the site was to be supplied by GrainCorp. Labour and other services were to be supplied by the defendant.

10. I have been supplied with an agreed statement of facts, para 7 provides:

“The Defendant was responsible for the safe operation of plant and equipment supplied to it by GrainCorp and was required to identify and bring health and safety matters to the attention of GrainCorp and consult with GrainCorp. Similarly, GrainCorp was required to identify and bring health and safety matters to the attention of the Defendant and to consult with the Defendant, particularly, in relation to work and safety procedures. GrainCorp was also responsible for supplying plant and equipment that was safe for use by the Defendant.”

11. The defendant employed approximately 12 permanent workers and during harvest up to approximately 50 casual workers. Mr Smith was employed by the defendant as a casual worker.

12. On 19 February 2013, Mr Smith was working at the site with Mr Jobson, Mr Staines was the site supervisor. Mr Smith and Mr Jobson were assigned to work in Grain Bunker 1‑T350. Mr Jobson was to drive a frontend loader. He was to reclaim grain from the bunker and load it onto grain hoppers. Mr Smith was to monitor the flow of grain and sweep up residual grain that had been spilled.

13. Because of the topography of the ground, grain was being spilt in the operation of the frontend loader. Mr Staines observed this. He directed Mr Jobson to reverse the frontend loader with its load of grain the full distance of the bunker as that would be smoother rather than turning and going forward. Mr Jobson complied.

14. Mr Staines instructed Mr Smith. He instructed him that when he felt it was safe to do so he should sweep the spilled grain in between the loads moved by the frontend loader.

15. Mr Staines drove from the bunker area and parked his vehicle about 250 to 300 metres away. He could see Mr Jobson and Mr Smith at work from where he was. He observed Mr Jobson operating the frontend loader and looking over both shoulders as he reversed. He observed Mr Smith sweeping the ground on and off.

16. Immediately prior to the incident, Mr Staines observed Mr Jobson reclaim a bucket of grain and reverse the frontend loader. He observed Mr Smith between the two grain hoppers sweeping grain. Mr Smith was wearing his hi‑vis work vest. The frontend loaders warning lights and beepers were functioning.

17. While reversing, Mr Jobson began to turn the frontend loader towards one of the grain hoppers and he collided with Mr Smith. Mr Smith was knocked to the ground. The rear right tyre of the frontend loader ran over Mr Smith’s torso. Mr Smith regrettably suffered fatal injuries.

THE PARTICULARS

18. These are set out in the summons. They may be summarised as follows:

19. The defendant failed to conduct a risk assessment identifying the risk or providing a means of eliminating, controlling or minimising the risk by prohibiting workers working on foot in the bunker areas when mobile plant was in operation or providing a traffic management plan. There are set out some details that should have been included in the traffic management plan. They included use of a spotter, electronic communication system and exclusion zones.

THE DEFENDANT’S SYSTEMS

20. The defendant held toolbox talks prior to the incident. The toolbox talks for the day of the incident noted hazards identified as:

“Traffic (loaders) Chaser bin, cement tyres around bunker working area. Heat, Noise, Weather (Gust of Wind), Dust.”

21. That was all that was noted on the record of the toolbox talks. There is a certain sameness about that toolbox talk as exactly the same hazards are identified including as to wording, punctuation and the use of upper and lower case in each of the toolbox talk records tendered in evidence and there are ten of them.

22. An induction booklet was provided to employees. It included:

“On site, all mobile plants or equipment has the right of way. If you must pass or cross near mobile equipment, stop until the equipment has passed you or the operator has signalled to you it is safe to pass.”

23. This does not cover the situation where a worker was directed to work around or near the frontend loader.

24. The defendant had in place safe work instructions. Safe work instructions for tractors identified a hazard of “Hit someone” and a control device for making sure everyone was clear of the tractor. There was no safe work instruction in place for frontend loaders.

25. The defendant provided Mr Smith and Mr Jobson with general site inductions. They included some safety matters. Neither Mr Jobson nor Mr Smith had specific job descriptions. Their duties were performed under the instruction of Mr Staines.

26. Paragraph 31 of the agreed statement of facts states:

“There were no SWYs, systems or procedure developed or implemented by the defendant in regard to FELs and other mobile plant specific to traffic management and exclusion zones to prevent FELs and other mobile plant colliding with or hitting a person in the vicinity of the bunker area, including the area where the incident occurred.”

27. The induction book stated that a mini workplace risk assessment and control must be completed before performing bunker duties. None was undertaken before Mr Jobson and Mr Smith commenced their work on 19 February 2013.

28. The induction booklet included a section on traffic management. It included the following as stated in para 36 of the agreed statement of facts:

“A section on traffic management which stated that traffic management plans (TMPs) will take into account employee work areas, pedestrian traffic necessary barriers, pedestrian walkways and other devices.”

29. No traffic management plan was in place for working in or around bunkers.

30. GrainCorp provided a risk assessment to the defendant in January 2013. It covered a number of different areas. Relevantly its content is described in para 41 of the agreed statement of facts as follows:

31. “The SWMS provided by Mr Houlahan to the defendants provided a general hazard regarding placement of plant and equipment, including persons being hit by a moving plant and collisions with other plant. The relevant safety controls identify the following recommendations:

“completing Mini-WRACs;

establishing exclusion zones using hi-vis or flags, and if necessary erecting and maintaining additional physical barriers around the perimeter of the immediate work site;

ensuring only competent plant operators control plant movements among other things.”

32. The statement of agreed facts continues in paras 42 and 43 as follows:

“42. The exclusion zones referred to in the abovementioned paragraph did not include the establishment of exclusion zones in the area of a bunker in front of the bins and grading equipment, (that is, the general area where workers such as Mr Smith were required to work on foot and where he was working immediately prior to the incident).

43. The Mini WRACs requirement referred to above address the risk of workers such as Mr Smith working on foot being struck by mobile plant, including FELs, in the bunker area.”

33. Reasonably practicable measures were available to the defendant to avoid the risk of injury in this case. There is no need to detail them. They are adequately spelt out in the particulars that I have referred to earlier.

34. Since the incident the defendant has taken a number of measures and these are spelt out in para 46 of the agreed statement of facts as follows:

“Implemented a control measure whereby no workers are to work in the grain bunker storage area while the FEL is operating;

Conducted meetings/toolbox talks advising workers that no worker is permitted in the grain storage area while FELs or other mobile equipment are in operation;

Conducted training sessions to address specific hazards including traffic management at grain storage sites;

Developed and implemented a new safety management system (SMS) and trained all staff in relation to the SMS;

Developed and implemented a traffic flow procedures on sites and around bunker storage areas where no persons are permitted while FELs and other mobile plant are operating;

Developed a formal traffic management plan that includes exclusion zones in the bunker area and that is to be included in the induction and training programs;

Purchase safety barricades to be put in place in accordance with the TMP;

Created an emergency response guide and trained all staff in relation to the guide;

Conducted training sessions for its officers in relation to safety obligations.”

35. These matters are also mentioned and more fully developed in an affidavit of Peter Hobday of 24 March 2015. One of the matters specified in the affidavit that is not covered by the statement of the agreed facts is that since about February 2014 the defendant has been a full member of Advanced Safety Systems Australia. This is an organisation which, for the payment of a fee, reviews the defendant’s safety management systems and work practices and updates it annually to be compliant with Federal and State Health and Safety Laws. Apart from the site at Boolcarrol, the defendant operates at other sites and the safety measures have been implemented at all sites. Mr Hobday estimates that the defendant has spent about $50,000 implementing these measures.

SENTENCING

36. I need to bear in mind several matters. I need to bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act. I need to bear in mind the purpose of Occupational Health and Safety legislation, in particular, ensuring the safety health and welfare of workers and others on workplace premises. I need to bear in mind aggravating and mitigating factors specified in s 21A of the Crimes (Sentencing Procedure) Act insofar as any are relevant.

37. I start my analysis with a consideration of the gravity of the offence. This is determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to the defendant to avoid the risk.

38. The foreseeability of the risk in this case was obvious. It was a case of moving plant and a person working together in the same proximity. There have been several cases in the past of accidents involving plant and equipment regrettably, a number of them involving fatalities. The fact that Mr Smith was wearing a hi-vis vest and the fact that Mr Jobson was looking over his shoulder or both shoulders when reversing evidences the existence of the risk. Mr Staines put Mr Jobson and Mr Smith to work together in that situation. The risk was obvious and known to the defendant.

39. The foreseeability of the consequences of the risk coming home included fairly obviously serious injury including potentially fatal injury.

40. Means were readily available to the defendant to avoid the risk. They were simple means as I indicated earlier. There is no need to specify them in detail here. Those that are set out in the particulars of the offence demonstrate how simple it would have been to implement those measures.

41. I turn to a consideration of other relevant matters and will start with deterrence.

42. It has been submitted to me by Mr Darams, who appears for the defendant, that specific deterrence should not be a consideration or, if it is a consideration, should be only of minimal moment in this matter. There is force in that submission, at least as to the minimal aspect of it. The defendant continues in operation, and it must be brought home to it that risks of this nature must be avoided. However, the submission is good in that the defendant has taken numerous steps to ensure, so far as it is humanly possible, that an event like this will not happen again.

43. General deterrence, however, remains a significant consideration. There are too many incidents of fatalities involving the use of plant. It must be brought home to those who use plant that safety is a paramount consideration and compliance with the legislative requirements relating to that is compulsory and essential, and it must be brought home that failure to comply does have consequences.

44. The maximum penalty I may impose in this case under the legislation is a figure of $1,500,000. It needs to be noted, however, that that is for a case of the most extreme kind, possibly one where the defendant has no systems at all in place and is completely reckless and has no care and for the safety of its employees. That is plainly not this case.

45. A number of subjective matters has been put to me by Mr Darams that go in mitigation of the penalty in this case. They are all matters that are appropriately to be taken into account. The first is that the defendant has no prior conviction. The next is that it entered a guilty plea in this case at the earliest possible moment.    The next is that it has expressed remorse. That is a matter that is to be looked at with some care. Remorse is usually better demonstrated by actions rather than simply words. Mr Hobday’s engagement with Mr Smith’s wife and son after the accident is an indicator of remorse. So are his attempts to try to make some arrangements to assist to some extent financially at the time. So also the efforts made by the company to put systems in place to ensure that an accident like this cannot happen again. I accept that the remorse in this case is genuine.

46. The next matter relied on is the defendant’s cooperation with the prosecutor in the investigation of this accident and the prosecution of these proceedings.

47. The next is the good corporate character and standing of the defendant, particularly in the local community with its considerable involvement, especially in sporting activities.

48. All these matters operate in mitigation of the penalty in this case.

49. I turn then to the victim statements. I was provided with three victim statements. The first was from Lisa, a daughter of Mr Smith. In her statement she expresses the shocking and mentally traumatic circumstances she faced receiving news of the accident and the following circumstances as they developed following the receipt of that news. She describes the hours following that as the worst of her life and expresses that they are still distressing today. These matters are perfectly understandable in the circumstances of this case. She also describes in a general way the impact of the incident on the local community.

50. The next statement was from Madison, one of Mr Smith’s granddaughters. She describes the upsetting way that this has affected her and again that is perfectly understandable. One of ways in which it has affected her is that, by reason of the family dynamics, she had to leave Sydney where she was living with her family and move to the country again with her family where Mr Smith’s widow, her grandmother, lives. That, so far as Madison was concerned, involved an obvious loss of contact with her school friends in Sydney. She describes a change from a happy family to a sad one. She also describes how her father has been affected and is reluctant to leave the home and attend social and sporting functions.

51. The third victim statement that I received was read by Paul Smith, the son of the Mr Smith. He read his statement with some difficulty. He was very close to his father. After the incident he left Sydney to go and live with his mother. It is not entirely clear but that might have been intended to be a short‑term move as his family stayed in Sydney. However, he stayed in the country with his mother and after about six months the family moved from Sydney to be with him. He had a job in Sydney which he gave up. He was fortunate enough to obtain work from a mate in the country but from time to time he has needed to take the odd day or days off work and still does so. He describes a lack of motivation and confidence and that at times he is not coping well. He describes the change in the family dynamics and the relationship. All these matters are perfectly understandable in the circumstances of this case.

36. The tragic fatality to Mr Smith has obviously had a deep impact on the family.

37. There are perhaps, however, two aspects of this tragedy and its effect on the family. One is the deep and tragic effect on the immediate members of the family. The other is a broader aspect of how the impact of the death on the family is an aspect of harm done to the community. That is not quite the same thing. The impact on the family, as a family, is obviously of much greater significance than its effect in terms of harm done to the community. In the latter respect I take the victim statements into account but in that respect, and in that respect only, it is of limited weight compared to other serious matters involved in this case. I described the seriousness of the matter earlier in terms of the fact that it was a foreseeable accident, was avoidable, and it had the consequences of the most tragic kind. These matters themselves embrace most of what is contemplated by what I may take into account in terms of s 28(4).

38. There is only one other matter I think I need to deal with and that is the defendant’s capacity to pay. I am not sure that in the end the submission really was made that I should exercise some discretion under the Fines Act. If that was a submission I decline to exercise such a discretion. There was some evidence objected to which I admitted. It was to the effect that directly after the incident GrainCorp decided not to renew the defendant’s contract. That much of the evidence I do not consider to be inadmissible or even contentious. The evidence went on to say, however, that in an average year that would be worth about $500,000 per year to the defendant’s business. I do not find that evidence to be helpful. In the same paragraph that deals with that evidence the paragraph also deals with the last few years and it seems to be saying that they have not been average years. They talk about lack of rainfall and drought conditions and the consequences of that. If they are meant to be average years and then the defendant would lose about $500,000 a year in those years, then one might speculate that it would be receiving considerably more in bumper years. As I say, that is speculation.

39. I have no other evidence before me as to the assets and liabilities of the defendant. I have no balance sheet, I have no profit and loss statement, I have no tax return. There is no basis in which I can exercise a discretion under the Fines Act.

40. In terms of the guilty plea I have not specified a percentage discount that I think is appropriate. As I understand it, I am not required to identify a specific percentage. Mainly, but not always, I do so. In this case it is sufficient if I note that the discount is in the high range of what is normally permissible, considering all the circumstances in this case.

41. Before I pronounce my figure I have further comment.

42. The fine I intend to impose has no bearing whatsoever on the value of Mr Smith’s life. Mr Smith’s life cannot possibly be replaced in terms of any monetary figure. The imposition of even the maximum penalty would not deal with that. The fine to be imposed is unrelated to the value of a human life except for the fact that I need to take into account that fatality was a risk that was foreseeable in this case. Under the circumstances, the fine I propose will be the sum of $250,000.

43. The defendant has already been convicted. I fine the defendant the sum of $250,000, with a moiety of the fine to the WorkCover Authority of New South Wales. The defendant is to pay the prosecutor’s costs in an agreed sum of $22,500.

**********

Decision last updated: 10 August 2015