WorkCover Authority of NSW v Buslines Group

[2014] NSWDC 377

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of NSW v Buslines Group [2014] NSWDC 377
Hearing dates:	03 October 2014
Date of orders:	03 October 2014
Decision date:	03 October 2014
Jurisdiction:	Criminal
Before:	Curtis J
Decision:	The defendant is convicted and fined
Catchwords:	CRIMINAL LAW – prosecution – work health and safety SENTENCE – subjective factors – defendant a good corporate citizen fine – appropriate penalty COSTS – prosecution costs
Legislation Cited:	Occupational Health and Safety Act 2000
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (Prosecutor) Buslines Group Pty Ltd (Defendant)
Representation:	Counsel: C Magee appeared for the Prosecutor R F Sutherland SC appeared for the Defendant Solicitor: DLA Piper Australia Piper Alderman
File Number(s):	2013/167443
Publication restriction:	None

SENTENCE

1. The defendant pleads guilty to a charge that on 9 June 2011 at Lismore it failed to ensure, so far as is reasonably practicable, the health, safety and welfare of its employee, Rikkie-Leigh Birbeck, contrary to the provisions of s 8(1) of the Occupational Health and Safety Act 2000.

2. The defendant is a bus company operating in the northern areas of New South Wales. It operates a fleet of 220 vehicles with approximately 350 staff. It employs 31 bus mechanics with six working at the Lismore Bus Maintenance Depot. Ms Birbeck was there employed as an apprentice. She was ats the time of her injuries, a second year apprentice aged 19.

3. The risk arose in the following circumstances. Ms Birbeck had been asked if she wished to “have a go” at replacing a piece of equipment known as a steering damper on one of the buses. Ms Birbeck drove the bus to the place at which the work was to be done and lay upon a skidboard which she moved into a position underneath the front of the bus where the piece of equipment was to be replaced.

4. The bus upon which she was working was equipped with a mechanically operated air suspension system, permitting the bus to be changed between a raised position and what is called a knelt position.

5. The knelt position lowers the bus by some 125 millimetres to make it easier for passengers to board. After the passengers are aboard the normal running position is the raised position. When Ms Birbeck commenced the work the bus was in the raised position.

6. Five minutes after commencing the work Ms Birbeck perceived that the bus suspension had been lowered and she was stuck. She called for assistance. A Mr Hyde, responding to her call, came to her aid. Accepting Ms Birbeck’s conclusions as to what had happened Mr Hyde thought to raise the suspension.

7. To do this he leaned through the window of the bus and turned on the engine. He then turned the switch which permits the bus to kneel or raise to what he thought was the raised position, (believing that the bus was then in the kneeling position).

8. Unfortunately, because of something inherent in the mechanism, the movement of the switch caused air to be released from the suspension system in consequence of which the bus lowered some distance, between 3 and 25 millimetres, pinning Ms Birbeck’s chest area between the underside frame of the bus and the ground.

9. Mr Hyde, alerted by the hiss of air escaping, immediately ceased operation of the switch. He and other employees then placed jacks underneath the front of the bus, raised the bus and released Ms Birbeck.

10. Ms Birbeck was taken to Lismore Hospital by ambulance where her diagnosis was bruised muscles on the chest. She was off work for approximately one week, resumed for a short time on light duties and then resumed her normal duties.

11. It is necessary in the assessment of appropriate penalty to determine what was the risk that came home.

12. A report was commissioned from an expert engineer as to how and why the bus may have been lowered in the first instance as reported by Ms Birbeck, and what would have caused the bus to lower again when the bus started up.

13. The report concluded that even in the most extreme case, with full air loss, the front suspension would not have lowered from the raised position.s

14. The air suspension system fitted to the bus, a Mercedes Benz 0405 bus, has been in service for more than 20 years and is known to be both reliable and stable. It is apparently common practice to work under these buses without jacking the body to stop any movement.

15. I am persuaded on the evidence that Ms Birbeck’s perceptions were wrong. The mechanical inspection established that there was no means by which the bus would have lowered while she was under it.

16. It is apparent however that the bus did lower when Mr Hyde attempted to change the suspension setting from kneel to raise. It was this action that caused the bus to lower a short distance, causing the injuries to Ms Birbeck.

17. The particulars to which the defendant pleads in the amended summons consist of a failure to conduct a risk assessment for the work undertaken by Ms Birbeck, failing to properly instruct and train her, effectively to instruct her that the bus must have been raised onto a mechanical hoist before replacing the damper or alternatively have props fitted so that the bus would not lower in the circumstances in which she found herself.

18. The defendant also pleads to the particular that it failed to supervise Ms Birbeck in her work.

19. Most relevantly the defendant pleads to the particular that it failed to devise and train workers in an emergency rescue plan for an employee trapped beneath a bus. Such a plan required that the bus be lifted off the employee using mechanical hoists where available rather than starting the engine of the bus.

20. I think that had a proper risk assessment for the particular task been undertaken before the event it is foreseeable, though improbable, that the person conducting the assessment may have concluded that a person may be trapped under the bus for any number of reasons, and that it was unwise to rely upon the compressor operating the airbags to raise the bus in circumstances where there may be some initial loss of air pressure.

21. I do conclude however that that circumstance, although foreseeable, was not obviously so.

22. The gravity of the risk being the primary factor to consider in sentencing it is necessary to assign some value to the obvious seriousness of this offence. Relative to that factor is the extent of foreseeability. In the present circumstance I think that the culpability of the defendant in failing to foresee the particular risk that came home was not high.

23. Another measure of the seriousness of the risk is the extent of harm that may have resulted from the defendant’s failures. Even if the suspension had been permitted to fall to the knelt position by Mr Hyde there was a clearance in the order of 14 centimetres between the lower part of the bus and the trolley upon which Ms Birbeck was working. There is no evidence that that clearance was associated with the risk of death or more serious harm than that which was suffered by Ms Birbeck.

24. I accept that the work underneath large vehicles such as this is work which does raise possibilities of serious injury and it is necessary that there be a measure of general deterrence factored into the penalty.

25. I am not persuaded that there is a particular need for subjective deterrence. I will come to that matter in the subjective features.

SUBJECTIVE MATTERS

26. The defendant is not a company which was unaware of its responsibilities in relation to health and safety. The business was established in 1926. It is a large business and has no prior convictions. This is a remarkable achievement given the number of employees and the extent of its operations.

27. The defendant did compile and publish an Occupational Health and Safety Policy. Unfortunately that policy did not include a work method statement for working underneath a bus although it did have policies in relation to the use of hoists. It seems to me that generally work under these buses without the use of jacks was unremarkable and has been the practice in the trade for many years.

28. The circumstances in which the risk came home, while not impossible, were improbable. The risk may be described as the risk that while a worker was safely underneath the bus another person may inappropriately operate the air compressor to lower the bus.

29. The defendant responded satisfactorily to the circumstances of the accident. It prepared a Work Method Statement for working under buses; purchased appropriate stands, and gave appropriate instructions to its employees.

30. The defendant is a good corporate citizen. It contributes $20,000 to the Children’s Medical Research annually and makes other offerings to charities.

31. Following the incident the defendant engaged a consultant to carry out a full review and update of its work health and safety policies and procedures. It has instituted training programs at a cost of $24,000.

32. The cost of Mr Day’s engagement is not a matter of evidence but it is quite apparent that the defendant takes its obligations seriously.

33. I have considered but rejected the option of engaging s 10 of the Act. That which happened to Ms Birbeck was not just physical, it must have been frightening in the extreme, indeed terrifying. I do not think her injuries would be sufficiently marked nor the lack of care, albeit slight, which led to the matter would be denunciated if no penalty was imposed.

34. Given the remote nature of the foreseeability, the circumstance that more serious injuries were not probable and the attention by the defendant to its responsibilities I believe an appropriate penalty is $50,000.

35. The defendant has entered a plea at the first available opportunity and cooperated with the prosecution, which entitles it to a deduction of 25%.

36. The defendant is fined the sum of $37,500 and I order that WorkCover have a moiety of the fine. The defendant is to pay the costs of WorkCover in the sum of $25,000. The defendant is convicted and that penalty is imposed.

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Decision last updated: 17 February 2016