WorkCover Authority of NSW v Gordon and Gotch Australia Pty Ltd

[2014] NSWDC 376

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of NSW v Gordon & Gotch Australia Pty Ltd [2014] NSWDC 376
Hearing dates:	07 October 2014
Date of orders:	07 October 2014
Decision date:	07 October 2014
Jurisdiction:	Criminal
Before:	Curtis J
Decision:	The defendant is convicted and fined
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – death of person not an employee of the company SENTENCE – foreseeable risk of injury or death – specific deterrence – general deterrence – conviction – fine COSTS – prosecution costs
Legislation Cited:	Occupational Health and Safety Act 2000
Category:	Sentence
Parties:	Work Cover Authority of New South Wales (Prosecutor) Gordon & Gotch Australia Pty Ltd
Representation:	Counsel: B D Hodgkinson SC appeared for the Prosecutor B G Docking appeared for the Defendant Solicitor: WorkCover Legal Group Moray & Agnew
File Number(s):	2012/275684
Publication restriction:	None

SENTENCE

1. The defendant pleads guilty to a charge that, contrary to section 8(2) of the Occupational Health and Safety Act 2000 at Moorebank on 29 October 2010 , it failed to ensure that Mr Neil Hayward, a person not in its employment was exposed to a risk to his health and safety. The defendant is a distributor of magazines and is the occupier of the site at Moorebank to which publishers bring material for distribution.

2. On the day in question a Mr Daljeet Singh delivered a 300 gram palletised load known as a skid to the premises in his own vehicle, a white Ford Transit courier van. Mr Singh had not attended the defendant’s premises before and stopped his vehicle at a position at right angles to a designated loading and unloading area facing into the warehouse.

3. After Mr Singh arrived, Mr Hayward drove his Isuzu flat top truck passing behind Mr Singh’s truck and stopped in the designated unloading area. Mr Hayward was delivering a pallet of magazines printed by Yaffa Publishing. Mr Hayward was a regular visitor to the premises and had probably been properly inducted into the vehicular transport plan drawn up by the defendant.

4. Mr Singh was met by Mr Matepi, an employee of the defendant who unloaded Mr Singh’s truck and then moved across to Mr Hayward’s truck.

5. In order that Mr Hayward’s truck may be unloaded, it was necessary that Mr Hayward alight from the vehicle and lower the gates so that the forklift could gain access. While Mr Hayward was standing behind a gate in the course of this procedure, Mr Singh without warning reversed his vehicle in a circular motion intending to head back the way he had arrived. He did not see Mr Hayward’s truck when he entered his own vehicle and did not see Mr Hayward’s truck from his rear mirrors. He struck Mr Hayward jamming him between Mr Singh’s van and Mr Hayward’s truck. Mr Hayward suffered serious injuries and died that night. The injury should never have happened. It was foreseeable and avoidable.

6. When Mr Singh arrived at the premises he stopped his truck short of the designated unloading area, but at a place where parking was not prohibited. There were no signs to indicate to Mr Singh that he should not park there.

7. Although the traffic control system on the site required that trucks proceed in one direction only, there were no arrows on the ground informing drivers to that effect. The defendant did not designate a spotter or marshall who could have guided Mr Singh as he reversed to ensure that he did not endanger Mr Hayward. Those failures were institutional and the responsibility of the defendant’s managers of Occupational Health and Safety.

8. The defendant was not unconscious of the need to ensure safety on the site. A traffic management system had been instituted pursuant to which contractors or clients delivering material to the site were to observe “Conditions and requirements that must be followed when delivering to the Gordon & Gotch Moorebank site”. Those conditions required that all persons entering the site must follow the site traffic management plan and that drivers were to park in front of the receiving area.

9. The Conditions also required that upon first attending upon the premises, a transport contractor was to undergo a transport induction. This induction required that the driver view a traffic plan which indicated traffic flow in a one way direction and places at which deliveries were to be unloaded.

10. The Traffic Management Plan appears in the form of an exhibit which constituted a plan checklist. An audit in accordance with that checklist was conducted in May 2010, only five months before the accident. The checklist confirmed that all contractors and visitors working on site were to receive induction training in regard to traffic management.

11. Mr Matepi was aware of this traffic management plan. He knew that he should not have unloaded Mr Singh’s vehicle without Mr Singh first undergoing an induction process. Mr Matepi also knew that the plan required that Mr Hayward’s truck be unloaded completely before Mr Singh’s had been unloaded or the contrary.

12. The evidence reveals that Mr Matepi regularly attended toolbox meetings and was aware of the traffic management systems. Had the defendant been aware that he was disobeying the traffic plan by failing to direct drivers to park in designated places or unloading vehicles in non-designated areas or failing to ensure that drivers stood in safe zones it would have counselled him.

13. It seems to me that the defendant did all that was reasonable in attempting to ensure that Mr Matepi observed the safety rules. There was a system pursuant to which employees found to be in breach of safety rules were given formal warnings. The defendant held fortnightly toolbox talks, monthly on site Occupational Health and Safety committee meetings, monthly safety walks throughout the system and daily observation, supervision and instruction to ensure that the systems of work were carried out by employees and contractors.

14. The gravity of the offence in respect of this charge is to be assessed upon the basis that I should consider not only Mr Hayward’s death but also the extent to which the defendant’s failings departed from the conduct of a reasonable man. I accept that there can be no graver consequence than death, but insofar as the system devised by those responsible for Occupational Health and Safety failed Mr Hayward that failure it seems to me was a failure of adversion and imagination rather than a failure that flowed from any disregard for safety.

15. One major omission was the failure to erect No Parking signs. Such signs, had Mr Singh observed them, would have prevented him from parking where he did. The other failure was the failure to provide an observer or spotter to guide reversing vehicles.

16. Merely installing a system of one way traffic does not obviate the occasional need and unforeseen circumstances of vehicles to be reversed and that circumstance ought have occurred to those responsible for the system. More particularly, however, the failures of Mr Matepi to which I have adverted were the major cause of Mr Hayward’s death. Mr Matepi is no longer employed by the defendant.

17. The degree of culpability of a corporation is related to the seniority in the corporation’s hierarchy occupied by the person at fault.

18. A failure by a subordinate employee must be seen in the light of an otherwise conscientious and detailed adversion by senior management to safely discharging the corporation’s duties under the Act.

19. This defendant is a large employer employing 107 persons across Australia. In the 2012 year it expended approximately $1,271 per employee upon occupational health and safety. It has operated at least for 39 years and has no prior convictions. Given the amount of traffic that must pass through its warehouses across Australia it is an exemplary record which should be reflected in diminution of penalty.

20. The defendant reacted responsibly to this tragedy and retained appropriate experts to advise and to audit their Traffic Managements Systems. Although it is after the event, I think it is most relevant that in October 2012 the holding company, PMP was a finalist in the National Safety Council Australia’s Safety Awards of Excellence.

21. Mr Christopher Thomas, the National Distribution Services Manager of the defendant has expressed deep sympathy and remorse for the loss suffered by Mrs Hayward and her family.

22. The maximum penalty is $550,000. Notwithstanding the powerful nature of the subjective matters, it seems to me that the need for a general deterrence, discounting for the need for a specific deterrence and the need to denounce and mark the unnecessary death of Mr Hayward call for the imposition of a penalty of $150,000.

23. The defendant is entitled for a reduction of 25% in consideration of its early plea of guilty and co-operation with the authorities.

24. The defendant is convicted and fined $112,500. I order that a moiety of the fine be remitted to WorkCover.

25. The defendant is to pay the costs of WorkCover agreed in the sum of $27,000.

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Decision last updated: 17 February 2016