Rocla Pty Limited v Inspector Cody [2007] ACTSC 9 (29 January 2007)

Last Updated: 7 May 2008

ROCLA PTY LIMITED v INSPECTOR TIMOTHY JOHN CODY

[2007] ACTSC 9 (15 February 2007)

CRIMINAL LAW - Occupational Health and Safety offence - whether penalty manifestly excessive - whether sentencing Magistrate took adequate account of appellant's demonstrated remorse

Occupational Health and Safety Act 1989 (ACT) s 49

Legislation Act 2001 (ACT) s 133

Occupational Health and Safety Act 2000 (NSW) s 12

Workplace Health and Safety Act 1995 (Qld) s 24

Occupational Health, Safety and Welfare Act 1986 (SA) s 19

Workplace Health and Safety Act 1995 (Tas) s 14

Occupational Health and Safety Act 2004 (Vic) s 21

Occupational Safety and Health Act 1984 (WA) s 19

Work Health Act (NT) s 29

Criminal Code 2002 ss 20, 21

Boral Building Services Pty Ltd v Denis James Gazley [1997] ACTSC 68 (12 September 1997)

Petreski v Cargill (1987) 18 FCR 68

House v R [1936] HCA 40; (1936) 55 CLR 499

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325

WorkCover Authority (NSW) v BHP Steel (AIS) Pty Ltd [2001] 111 IR 181

McCracken v Johnsen [2003] ACTSC 74 (12 September 2003)

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

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 42 of 2006

Judge: Higgins CJ

Supreme Court of the ACT

Date: 15 February 2007

IN THE SUPREME COURT OF THE )

) No. SCA 42 of 2006

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ROCLA PTY LIMITED

Plaintiff

AND: INSPECTOR TIMOTHY JOHN CODY

Defendant

ORDER

Judge: Higgins CJ

Date: 15 February 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. That the fine imposed by the learned Magistrate be reduced to $100,000.

1. This is an appeal from a decision of Magistrate Madden handed down on 7 August 2006. The appellant had pleaded guilty to a charge brought under s 49 of the Occupational Health and Safety Act 1989 (ACT) (OH & S Act).

2. The charge, as originally framed in an information dated 10 April 2006, alleged that the appellant:

... being a person who is (sic) required to comply with a safety duty, failed to comply with that safety duty and was reckless about whether that failure would cause serious harm to a person. That failure to comply caused serious harm to Jeffrey Olsson, an employee of [the appellant].

3. On 28 June 2006, the information was amended by striking out "reckless" and substituting "negligent", thereby significantly reducing the seriousness of the allegation. The appellant forthwith entered a guilty plea. Submissions were heard on 17 July 2006. The decision as to penalty and remarks on sentencing were handed down on 7 August 2006. The appellant was fined $200,000 and court costs. On 4 September 2006 the appellant appealed to this Court against the quantum of the fine imposed.

4. The grounds of appeal were stated as follows:

(a) The penalty imposed is manifestly excessive.

(b) The Magistrate placed too great an emphasis on general deterrence.

(c) The Magistrate failed to properly and adequately assess the relative seriousness of the offence.

(d) The Magistrate failed to give adequate weight to matters subjective to the Appellant, including the Appellant's contrition, the assistance provided by the Appellant to the injured employee, the significant remedial measures put in place by the Appellant after the accident, the Appellant's co-operation with WorkCover and the Appellant's early plea of guilty.

(e) The Magistrate placed undue weight on two previous offences of the Appellant in Queensland.

(f) The Magistrate failed to give sufficient weight to the comprehensive system of work in place at the time of the accident.

(g) The sentence imposed by the Magistrate is sufficiently inconsistent with sentences imposed on defendants involved in similar matters in other jurisdictions so as to give rise to a lack of confidence in, or alternatively a question in the public mind about, the exercise of the sentencing discretion generally by the Magistrate's [sic] Court.

5. The provisions of s 49 OH & S Act are as follows:

49 Failure to comply with safety duty--causing serious harm to people

(1) A person commits an offence if--

(a) the person is required to comply with a safety duty; and

(b) the person fails to comply with the safety duty; and

(c) the failure causes serious harm to anyone; and

(d) the person either--

(i) was reckless about whether the failure would cause serious harm to anyone; or

(ii) was negligent about whether the failure would cause serious harm to anyone.

Maximum penalty: 2 000 penalty units, imprisonment for 7 years or both.

(2) Absolute liability applies to subsection (1) (a).

6. The reference to "penalty units" is a reference to s 133 of the Legislation Act 2001 (ACT) which, relevantly, provides:

(1) In a law, if a penalty for an offence is expressed as a number (whether whole or fractional) of penalty units -

(a) the penalty is a fine of that number of penalty units; and

(b) the value of the penalty unit for the offence is -

(i) if the person charged is an individual - $100; or

(ii) if the person charged is a corporation - $500.

7. It follows that, for the appellant, the maximum fine provided for was $1,000,000.

8. The "summary of facts" tendered by the respondent referred to the injury to Mr Olsson and the circumstances in which it occurred as follows:

1. Background

1.1 Rocla Pty Limited (Rocla) is a registered Australian Company limited by shares with Australian Company Number 000 032 191 and Australian Business Number 31 000 032 191.

1.2 Rocla operates in the Australian Capital Territory as Rocla Pipeline Products at 14 Tennant Street FYSHWICK.

1.3 Rocla designs, produces and supplies a wide variety of concrete related products and services to the civil engineering and infrastructure markets.

1.4 Rocla Pipeline Products activities include the design, manufacture and supply of precast concrete and steel reinforced concrete products.

1.5 Rocla owns and operates plant at the Fyshwick premises including Drycast centre number 2. This plant consists of a hopper containing concerete that flows onto a conveyor through jaws actuated by the plant operator. The conveyor runs on an arm, which is pulled or pushed over a mould where the products are formed. The mould is located on a vibrating table.

1.6 Rocla is an employer as defined in the Occupational Health and Safety Act 1989 (the Act), Section 3.

1.7 Jeffrey Raymond Olsson (the employee) commenced employment with Rocla on 10 February 2004. His rostered hours of duty were 0800 to 1640, working a nine-day fortnight.

1.8 The employee worked in various areas of the factory including the cage line, B8 strip and after Christmas 2004, in the Drycast centre.

1.9 Jeffrey Olsson was elected as the Health and Safety Representative and was provided with training by the National Safety Council of Australia Ltd from 6 - 9 December 2004.

2. Incident

2.1 Mr Olsson commenced working at Drycast centre number 2 (the plant) on Tuesday 24 May 2005 at 0730 hours and was involved in making drycast concrete products.

2.2 His duties on the day of the incident included pouring concrete into a mould situated on a vibrating table.

2.3 At 1250 hours on Tuesday 24 May 2005 an incident occurred at Rocla Pipeline Products' premises at Fyshwick.

2.4 Mr Olsson's (sic) stated that he grabbed the conveyor belt by the tubular surround with his left hand. A bar attached to the machine knocked his left hand upwards between the small and large rollers of the conveyor belt. He said his glove was caught by the tip of his fingers and he was pulled in first by his little finger and then his arm became caught between the small and large rollers, which then turned him away from the mould. He was unable to reach the stop switch as he was now facing away from the switch and could not reach it with his right arm.

2.5 Mr Richard O'Callaghan, who was working nearby at Drycast centre number 3, ran to the scene and shut down the plant using the emergency shut off button.

2.6 Mr O'Callaghan then attempted to extricate Mr Olsson from the plant, but was unable to free Mr Olsson.

2.7 Mr O'Callaghan then ran to an area under the concrete batching area and alerted Keith Dears, who then went to assist.

2.8 Mr O'Callaghan and Mr Dears partially dismantled the conveyor to free Mr Olsson.

2.9 Mr Olsson was taken to the first aid room to await the arrival of the ambulance.

2.10 ACT Ambulance transported Mr Olsson to The Canberra Hospital, where he was admitted for approximately 2 weeks.

2.11 He sustained fractures and crush injuries to his left wrist and arm.

2.12 Mr Olsson has undergone several operations on his arm and is presently undergoing physiotherapy.

2.13 He returned to work at Rocla Pipeline Products on light duties in August 2005.

2.14 Mr Olsson has taken a full time position in the office from 13 February 2006.

3. Investigation

3.1 ACT WorkCover received an Injury and Dangerous Occurrence Report form by fax from Rockla Pty Limited on 27 May 2005 notifying of the incident.

3.2 An investigation was conducted by ACT Workcover and the following occurred:

* Inspections and photographs of the workplace;

* The provision and perusal of documentation;

* Records of conversation with Jeffrey Raymon Olsson, Richard Kevin O'Callaghan;

* Statements made by Mr O'Callaghan and Keith Dear;

* Provision of copies of statements made by Messrs Olsson, O'Callaghan & Dear with Stacks with Sneddon Hall & Gallop; and

* Records of interview undertaken with company representative.

3.3 According to Mr Olsson, he opened the hopper jaws to allow concrete onto the conveyor. A large amount of concrete spilled onto the belt, whereupon he closed the hopper jaws.

3.4 He then grabbed the tubular surround of the conveyor with his left hand to push it back.

3.5 A cleaning bar knocked his left hand upwards between the small and large rollers on the underside of the conveyor.

3.6 He was wearing gloves. His left glove became caught in the roller and his left arm was drawn into the belt, first by his little finger, then by his arm.

3.7 The movement associated with the drawing into the plant of his arm resulted in him being in a position where he was unable to reach the emergency shut off button located on the opposite side of the conveyor to Mr Olsson's reach.

3.8 Mr O'Callaghan ran to the plant from Drycase centre 3, approximately 15 metres away, and shut off the plant.

3.9 The National Safety Council of Australia Ltd had conducted training for all staff, including Messrs Olsson and O'Callaghan, on 1 November 2004 on site at the Fyshwick premises. This training involved hazard identification, assessment and control.

3.10 A Risk Assessments (sic) had been carried out on Dry Cast Centre No. 2 in December 2004 by Messrs O'Callaghan and Olsson identified the following hazards and risks associated with number 2 Dry cast centre:

* Hazard: "jamming of fingers in belt when pushing back";

* Suggested control: "put handle on side of belt to move it back and forward";

3.11 After the incident occurred, a further risk assessment was undertaken by Bob Connors, Bernie Pye and Keith Dears, at which time it was recommended that a control measure be put in place as follows: "full guard to be put around belt so fingers cannot go in accidentally".

3.12 There was some guarding on number 2 Drycast centre however it was inadequate to prevent the drawing in of Mr Olsson's arm at the time of the incident.

3.13 Documentation provided by Rocla indicates the costs and time taken to install the guarding.

3.14 Extensive guarding was fitted to number 2 Drycast centre as a result of the incident in June & July 2005. (Refer exhibit ROI/12).

9. The parties are not in any disagreement as to the general principles applicable to this appeal.

10. In Boral Building Services Pty Ltd v Denis James Gazley [1997] ACTSC 68 (12 September 1997), I stated:

... an appeal from the Magistrates Court is by way of rehearing. That means that, whilst having due regard to the Magistrate's decision and the reasons for it, deferring to a view expressed as to the credibility of witnesses unless plainly wrong, this Court must give effect to its own assessment of the evidence, ...

11. That is subject also to the cautionary observation in Petreski v Cargill (1987) 18 FCR 68, that where the appeal, as it does here, involves a challenge to a discretionary judgment of the court appealed from that due deference will include an approach that the decision should not be interfered with, in the absence of relevantly material fresh evidence, unless there is found to be some error of fact or principle as contemplated by House v R [1936] HCA 40; (1936) 55 CLR 499 or that the sentence imposed was, as is here contended, manifestly excessive.

12. The latter phrase "manifestly excessive" (or inadequate) as Gleeson CJ and Hayne J expressed it in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325 refers to a "conclusion" that is "plainly apparent". It "frequently does not admit of amplification".

13. The reference to adequacy or excessiveness does assume that there is a standard of consistency applicable to the offence and the circumstances in which it occurred against which the judgment as to adequacy or excessiveness should be made.

14. This prosecution was, the parties agreed, the first prosecution in this country, under Occupational Health and Safety legislation where the available maximum penalty is $1 million.

15. In New South Wales, the maximum fine is $550,000, rising to $825,000 in respect of a previous offender (Occupational Health and Safety Act 2000 (NSW) s 12).

16. In Queensland, depending on the extent of the harm, the penalty in a like case to the present would be $56,250 (Workplace Health and Safety Act 1995 (Qld) s 24).

17. In South Australia the maximum penalty is $100,000, rising to $200,000 for a previous offender (Occupational Health, Safety and Welfare Act 1986 (SA) s 19).

18. In Tasmania the maximum fine is $150,000 (Workplace Health and Safety Act 1995 (Tas) s 14).

19. Victoria provides for a fine of 9000 penalty units, presently $966,870 (Occupational Health and Safety Act 2004 (Vic) s 21).

20. In Western Australia the maximum penalty is $500,000, rising to $625,000 for a subsequent offence (Occupational Safety and Health Act 1984 (WA) s 19).

21. For the Northern Territory the Work Health Act (NT) s 29 provides for a maximum fine of $125,000.

22. The OH & S Act, however, embraces an offence involving recklessness as well as negligence.

23. The Criminal Code 2002 ("the Code") is applicable to the OH & S Act. Thus the definitions of recklessness and negligence in the Code are relevant.

24. Section 20 of the Code provides:

Recklessness

(1) A person is reckless in relation to a result if--

(a) the person is aware of a substantial risk that the result will happen; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

(2) A person is reckless in relation to a circumstance if--

(a) the person is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is a question of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

25. Section 21 of the Code provides:

Negligence

A person is negligent in relation to a physical element of an offence if the person's conduct merits criminal punishment for the offence because it involves--

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk that the physical element exists or will exist.

26. The learned Magistrate, in evaluating the penalty to be imposed remarked as follows:

1. Rocla Pty Limited of Chatswood, NSW, pleaded guilty on 17 July 2006 to an offence against s 49 of the Occupational Health and Safety Act 1989. The allegation is that on or about 24 May 2005 the company was required to comply with certain workplace safety duties. It alleges the company was negligent about those safety factors thereby causing serious harm to an employee, Jeffrey Olsson. The plea of guilty was first indicated to Magistrate Campbell on the 28 June 2006. The company had earlier made certain representations to the Director of Public Prosecutions on the 7 June 2006 when the matters were mentioned in Court.

2. Rocla operates at 14 Tennant Street Fyshwick as Rocla Pipeline Products. Rocla designs, produces and supplies a wide variety of concrete related products to the civil engineering and infrastructure markets. Rocla Pipeline Products activities include the design, manufacture and supply of precast concrete and steel reinforced concrete products. Rocla owns and operates plant at the Fyshwick premises including a Drycast Centre Number 2. This plant consists of a hopper containing concrete that flows onto a conveyor through jaws actuated by the plant operator. The conveyor runs on a arm, which is pulled or pushed over a mould where the products are formed. This mould is located on a vibrating table.

3. Jeffrey Raymond Olsson commenced employment with Rocla on 10 February 2004. His rostered hours of duty were 8am to 4.40pm. He worked a nine-day fortnight. Mr Olsson worked in various areas of the factory including the cage line, the B8 strip and after Christmas 2004, in the Drycast Centre. Mr Olsson was elected as the Heath and Safety Representative of the staff and was provided with training by the National Safety Council of Australia Ltd from 6 - 9 December 2004 inclusive.

4. Mr Olsson commenced working at the Drycast Centre Number 2 on Tuesday 24 May 2005 at 7.30am. He was involved in making drycast concrete products. His duties on the day of the incident included pouring concrete into a mould situated on a vibrating table. At about 12:50pm in the afternoon of Tuesday 24 May 2005 an incident occurred at the Rocla Pipline Products premises at Fyshwick.

5. Mr Olsson grabbed the conveyor belt by the tubular surround with his left hand. A bar attached to the machine knocked his left hand upwards between the small and large rollers of the conveyor belt. His glove was caught by the tip of his fingers and he was pulled in first by his little finger and then his arm became caught by the small and large rollers, which then turned him away from the mould. Mr Olsson was unable to reach the stop switch as he was now facing away from the switch and could not reach it with his right arm.

6. Mr Richard O'Callaghan, who was working in close proximity to the Drycast centre number 3 ran to the scene and shut down the plant using the emergency shut off button. Mr O'Callaghan attempted to extricate Mr Olsson from the plant but was unable to free Mr Olsson. Mr O'Callaghan ran to the concrete batching area and alerted Mr Keith Dears, who in turn went to the assistance of Mr Olsson. Mr O'Callaghan and Mr Dears partially dismantled the conveyor to free Mr Olsson.

7. Mr Olsson was conveyed by ambulance to The Canberra Hospital where he was admitted for approximately 2 weeks. He sustained fractures and crush injuries to his left wrist and arm. There were several operations on his arm. There is continuing physiotherapy treatment. He returned to work at Rocla Pipeline Products on light duties in August 2005. Mr Olsson has subsequently been appointed in a full time capacity at Rocla in the office from 13 February 2006.

8. ACT WorkCover received an Injury and Dangerous Occurrence Report by facsimile from Rocla Pty Limited on 27 May 2005 notifying the authority of the incident. The ACT WorkCover immediately conducted an investigation of the events of 24 May 2005.

9. The National Safety Council of Australia limited had conducted training for all staff including Messrs Olsson and O'Callaghan on 1 November 2004 on the site at the Fyshwick premises. Training involved hazard identification, assessment and control. A risk assessment had been carried out on Drycast Centre No 2 in December 2004 by Messrs O'Callaghan and Olsson. They identified the following risks and hazards associated with that centre:

* Hazard: "jamming of fingers in belt when pushing back";

* Suggested control: "put handle on side of belt to move it back and forward";

At the time of the incident these identified risks and hazards had not been addressed by the company.

10. After the incident occurred, a further risk assessment was undertaken by Messrs Connors, Pye and Dears, at which time it was recommended that a control measure be put in place in the following terms: "full guard to be put around belt so fingers cannot go in accidentally". There was some guarding on Number 2 Drycast Centre however it was inadequate to prevent the drawing in of Mr Olsson's arm at the time of the incident. Rocla installed extensive guarding to the Number 2 Drycast Centre as a result of the incident in June & July 2005.

11. There were some 14 photographs tendered to the Court (EXHIBIT B) depicting the guarding fitted to the end roller of No 2 Drycast Centre. This was all fitted after the incident of 24 May. The photographs were most helpful for the purpose of not only noting the remedial action taken by Rocla as a consequence of the incident but also generally to understand the operation of the system, as well as the dimensions of the working environment where the injury occurred. Rocla outlayed some $6400.00 in installing and adopting safety measures as a consequence of this incident. The tax invoice and statements in relation to this expenditure were tendered to the Court (EXHIBIT C). The `Hazard Risk Assessment and Control Worksheet' demonstrating the risk analysis made by the company in June and July 2005 was also tendered to the Court and is marked as Exhibit D. A guarding and lockout system was installed by 28 June 2005, with further safeguards being installed by 14 July 2005.

12. Two medical reports were tendered to the Court in respect of the injuries sustained by Mr Jeffery Olsson in the accident. A report was received from Dr Patrick Leerdam, a general practitioner of Chifley ACT dated 12 June 2006, with a further report from Dr Katherine Gordiev, an Orthopaedic Surgeon dated 8 June 2006. These reports are marked as Exhibit E in the proceedings. The injuries are described by Dr Leerdam as a large laceration to Mr Olsson's left forearm with a segmental fracture of the left radius, fracture of the distal left ulnar shaft and severe soft tissue and vascular injures to the left forearm. Mr Olsson underwent fasciotomy in the left arm with open reduction and internal fixation of the left segmental radius and ulnar fracture. An interpositional reversed vein graft and bridge defect was performed on the left ulnar artery the following day and on 27 May a VAC dressing was performed on the volar and dorsal fasciotomy wound. Dr Leerdam reviewed the patient on 24 June 2005. It seemed he required further oral antibiotics for an ingoing wound infection which he had suffered. This was treated by oral Keflex. Mr Olsson was to be seen by the Plastics Team at The Canberra Hospital towards the end of June 2005.

13. Dr Leerdam later viewed Mr Olsson on 2 August 2005. It was Dr Leerdam's assessment that Mr Olsson was totally disabled for work up until that time. The purpose of the visit was to plan his return to work in conjunction with his rehabilitation provider. It was proposed that he should return to work on reduced hours and light duties. Dr Leerdam was concerned about working with or near machinery. Suitable duties were organised. Mr Olsson was required to continue physiotherapy, as there was still weakness in the left arm. There was also a referral made for counselling at this time as the psychological effects of his injury was still quite marked. There was still a quite significant disfiguring and scarring to his left forearm. His left arm was still requiring support in a sling.

14. There was a further review on 9 September 2005. There was scar revision surgery performed on 18 October 2005 requiring time off work from that date. He returned to work 10 days later on 28 October 2005. The wound required regular dressing. There was also a significant amount of pain requiring oral analgesics.

15. Mr Olsson was still experiencing weakness in the left arm in November 2005 and was referred for a conditioning and resistive programme. Mr Olsson was reviewed again in February 2006 after he had been given a permanent position working in the office at Rocla. He still had some weakness in his left arm but was able to perform all duties required of him. The forearm scar at this time had widened in its mid-portion but was otherwise stable. Dr Leerdam noted that the scarring was somewhat unsightly. Mr Olsson was apparently keen to seek a further opinion as to the suitability for revision to improve its appearance. It would seem on the information provided to Dr Leerdam by Mr Olsson, he was working in the office and managing without any restrictions. Mr Olsson would not be able to return to working with heavy machinery because of residual weakness in the left arm and also because of the severe psychological trauma he experienced in the incident.

16. There is significant scaring (sic) to the left forearm which will require further surgery in the near future. This will improve the appearance but nonetheless he will always have significant scaring (sic) on his forearm.

17. The prognosis made by Dr Leerdam is that Mr Olsson will suffer permanent injury as a result of the accident. The nature of this disability will have a physical and a psychological effect. There is decreased strength in the left arm which although physical therapy has improved, it will always require a regular routine of stretching and exercise to maintain strength and normal function. Mr Olsson is left with anxiety relating to the accident. He experiences fear and trepidation when faced with the prospect of working with or being near heavy machinery. Dr Leerdam believes this emotional trauma will improve with time. Dr Leerdam's further assessment was that it was more likely than not that Mr Olsson will remain permanently fit for light duties only. Moreover, Dr Leerdam believed it would not be appropriate for Mr Olsson to return to heavy manual duties such as those which he had been performing prior to the injury. The overall prognosis is good but that Mr Olsson will be left with a permanent disability.

18. The orthopaedic surgeon found that there were current symptoms of weakness of elbow flexion with occasional ache and stiffness in the left arm. It would seem that Mr Olsson has been attending a gymnasium in an attempt to increase the build of his left bicep but it remained weak. Mr Olsson is only able to lift about 1.5 kilograms. Dr Gordiev made a physical examination and found there is atrophy of the biceps and brachialis. Dr Gordiev was proposing to obtain an ultrasound to check whether there was a rupture of the tendon at the proximal end. Dr Gordiev goes on to say:-

"If the biceps injury is permanent then I would expect a level of permanent disability, the nature of which would be weakness in elbow flexion. This would impair his ability to lift heavy object and would make him fit only for light duties on a permanent basis. Therefore I think it is unlikely he would return to heavy lifting work, which he was performing prior to his injury. His overall prognosis would be good as he has a good range of elbow movement with full supination and full pronation."

19. The prosecutor informed the Court that Rocla had been subject of two prior occupational health and safety issues in Queensland. One was in July 2003 and another in 2004 where in the latter case a substantial fine was imposed when a worker sustained grievous bodily harm involving multiple fractures.

20. There was tendered in evidence on behalf of Rocla two affidavits setting out the safety measures implemented by Rocla after the accident in addition to the circumstances of the incident, as well as to the support provided to the employee as a consequence of the incident. These matters are significant and speak highly of the company's responsibility in the industrial workplace.

21. I propose to give the company credit for the responsible manner in which they have approached this serious incident. The affidavit of Robert Michael Connors sworn on 13 July 2006, sets out this information in detail. A similar affidavit by Gregory George Hook of Pymble NSW, sworn on 13 July 2006, also sets out the steps taken by Rocla in the terms of implementation of workplace safety. Mr Hook is the Human Resources Manager for Rocla Pty Limited. It is not necessary to refer to every aspect of the affidavit but there is one comment which deserves significant weight. In paragraph 7 of Mr Hook's affidavit, he deposes to the incident in these terms:

"It is with great disappointment and regret that this incident occurred. Particularly in circumstances where:

(a) Rocla has in place a comprehensive safety management system to seek to ensure that all persons who were are engaged in its operations are not exposed to workplace health and safety risks; and

(b) About 40% of Rocla's business is Government work and, if a conviction is recorded against the company, this could have an impact on the success of future Government tenders in which such a criteria forms part of the information required to be disclosed."

Rocla's response to the incident

Since the incident in addition to the actions described by Mr Connors in his affidavit Rocla has invested many hours in management time in investigating and responding to the incident, including the carrying out of the matters outline above. Rocla has also spent about $30,000 made up of travel to site, modification to equipment, training and legal costs in responding to the incident."

22. The evidence tendered on behalf of the company clearly demonstrates regret, remorse and a significant apology for the incident. Moreover, the company has in a significant way, taken action to ensure that such an incident will not occur again. I do not consider that this incident will impact upon the company's capacity to gain, secure and tender for contracts with the government. These incidents do occur from time to time no matter what level of safety of the highest order is installed by a company. It is with regret that this incident occurred.

23. Since the incident Rocla has:

(a) closed in the underside of the conveyor by the installation of a mesh guard;

(b) installed guarding to the back of the conveyor;

(c) installed a lockout system to the back gate of the conveyor system;

(d) installed guarding to the front of the overhead concrete hopper;

(e) relocated the emergency stop closer to the front of the head roller;

(f) installed an additional isolation switch to the adjacent building column some 1.5 metres from the conveyor;

(g) installed side guarding at the head drum roller;

(h) fitted a handle to the conveyor side guard and

(i) increased the height of the skirting rubber holder and lengthened it to the full length of the conveyor.

These steps are significant remedial measures. It demonstrates that the management of Rocla are serious and genuine in respect to workplace safety issues.

24. The company has cooperated with ACT Workcover in respect of the investigation. This is another factor in respect of which credit is due to the company for its responsible approach to this issue.

25. The support provided by the company to the injured employee was significant. Mr Olsson was absent from work from 25 May to 8 August 2005. Mr Connors visited Mr Olsson in hospital on several occasions to show support and concern over the incident. Mr Connors further deposes in his affidavit that Mr Olsson returned to work on light duties in an office environment on 8 August 2005. These duties included taking telephone calls, filing paperwork, checking currency of the debtor's file, updating price lists and customer details in the computer system. During this period he was also trained to enter an order from the customer into the system, generate loading dockets and invoice customers for deliveries. In early February 2006, the Rocla Dispatch Clerk at the Fyshwick site tendered his resignation. This left an opening for the position. The dispatch position is crucial to the day-to-day operations of the business. Mr Olsson expressed an interest in the position and after assessing his suitability for the position, Mr Connors appointed him in a full time capacity to the dispatch clerk role on 13 February 2006. Mr Olsson has been performing these duties in a diligent and efficient manner and is meeting the expectations of the company. Mr Olsson is apparently an integral part of the Rocla Fyshwick team. This is another applaudable step taken by the company in the rehabilitation process of its employee. There is no suggestion the company was taking shortcuts for financial expediency. The only thing that can be said is that once the risk had been identified and recognised, it should have been rectified in a more expeditious manner.

26. The evidence tendered on behalf of the company satisfies me to a significant degree that the company does take its occupational health and safety responsibilities in a serious manner. It would seem this was a one off incident of some significant proportion but otherwise the company has had a distinguished record in its work safety role. There was also present in Court for the hearing of the plea in mitigation, three senior company executives, which in my mind also demonstrates the high responsibility in which the company regards it's role to it's employees.

27. The legislature clearly regards workplace safety as a critical matter. Injuries in the workplace affect not only the employee and his family, his employer, but also the insurance industry and the whole community in the terms of wages and medical expenses. The maximum penalty under the Occupational Health and Safety Act in respect of this incident is $1 million dollars. This maximum figure is reserved for the most serious of incidents. Although this was a serious incident, it must be viewed at the lower level for the reasons expressed herein. It did put at risk the employees arm. The potential for serious harm to be occasioned to the workplace warrants a significant monetary penalty to be imposed as a general deterrent.

28. There is persuasive Supreme Court authority in the Australian Capital Territory to the effect that the workplace must be a safe environment, free from the risk of harm to the workman (see McCracken v Johnston [2003] ACTSC 74; Erindale M Pty Ltd v Curran [2004] ACTSC 69). The objects of the legislation are well defined. It is the prevention of workplace injury. There is a principle to encourage high standards of vigilance. The deterrence element is of critical importance in the interests of workplace safety. Conditions for a safe working environment must be implemented and applied by those in the commercial and industrial scene in addition to the supervision by the regulatory authorities. The safety of the workman must be of paramount consideration to any employer where the employee is engaged in duties involving dangerous machinery particularly where life or limb may be at risk.

29. Accordingly, the company is convicted and fined $200,000.00 plus Court costs. A period of time to pay the fine will be allowed. This fine is 1/5 of the maximum penalty open to the Court.

30. I publish my reasons.

SHANE G MADDEN

MAGISTRATE

2 AUGUST 2006

27. It was not contended that his Honour made any error of fact or principle in these reasons. It was simply contended by Mr Walker SC, for the appellant, that the penalty was manifestly excessive.

28. His Honour, in essence, found that though the risk from the defective condition of the machinery was a serious one, it was known to the victim, Mr Olsson and a fellow employee that the machinery posed a risk. They had been commissioned to report on the safety aspects of the machinery and recommend remedial measures. They did so in December 2004. Regrettably, the recommended measures had not been put into effect by May 2005 when the accident occurred. They were effected in June and July 2005. The appellant, despite this lapse, had an excellent safety record. It had been in business throughout Australia for over 70 years. Only two previous safety breaches were recorded.

29. There was genuine remorse on the part of the appellant. It not only entered an early plea of guilty and remedied the defect promptly after the accident but also treated the injured employee with both compassion and consideration, doing its best to alleviate his suffering and disadvantage. The delay in remedying the risk was, of course, negligent. There was no dispute as to that. It was not, his Honour found, a delay occasioned by a desire to obtain or retain a financial advantage.

30. Given those favourable findings, Mr Walker contended that the penalty was at least twice what it ought to have been.

31. Mr Doig, for the respondent, agreed that the penalty was high, although it was not more than 20% of the maximum. He pointed out, correctly in my view, that the matter should not be approached simply mathematically, nor did Mr Walker contend otherwise.

32. Mr Doig conceded that the $1 million penalty was to be regarded as reserved for the most serious class of case involving both recklessness and very serious harm though, of course, short of death. In other words, a breach of duty so egregious that had death resulted a charge of industrial manslaughter would follow.

33. Certainly, the facts of this case, serious though the lapse and its consequences were, fell far below that level of culpability.

34. There was one factor adverse to the appellant's otherwise strong claim to leniency. It had two prior penalties imposed in Queensland for safety breaches there in 2003 and 2004 attracting penalties of $22,000 and $30,000 respectively. The circumstances of those breaches and their consequences was not before his Honour, nor did his Honour draw any inference from them detracting from his otherwise favourable assessment of the conduct and attitude to safety of the appellant. He remained persuaded that the appellant's failure was a "one-off" incident to be contrasted with an otherwise commendable safety record.

35. Mr Doig correctly submitted that the need for specific and general deterrence was especially important in occupational health and safety matters. The purpose of penalties of the level prescribed is to instil a high level of ongoing advertence to safety issues and to encourage those in control of work places to engage in pro-active measures to avoid foreseeable risks of injury.

36. The approach to matters of this kind is illustrated by reference to the decisions referred to in the submissions of the parties.

37. In Boral Building Services Pty Ltd v Gazley (supra), the appellant had been convicted and fined for a safety breach. There was a gap in scaffolding on a building site. It was not signposted as a hazard. It was not rectified. The failure was not regarded as being at "a very grave level".

38. The appellant in that case had been engaged for a long time in a high volume of building work with no prior convictions. The failure gave rise to three charges. A total in fines of $20,000 was imposed (plus costs). The statutory maximum in each case was $125,000. I did not regard the penalty imposed as excessive in the circumstances. I stated (at p 6):

Even allowing for the good general safety record of the appellant and the fact that this lapse did not evidence general disregard of safety requirements, a penalty of $20,000 out of a possible total of $375,000 cannot be regarded as either excessive in itself or, having regard to penalties imposed in the Magistrates Court previously, between 1991 and 1995, as out of proportion to those which might have been expected in comparable cases.

39. Nor, I would add, was the penalty of $15,000 for one of the three offences charged out of a maximum of $125,000 available so regarded.

40. The next matter was WorkCover Authority (NSW) v BHP Steel (AIS) Pty Ltd [2001] 111 IR 181. The defendant had failed to put in place a safe system of work for hosing coal off a conveyor belt. A worker suffered a moderately severe injury. The defendant had a considerable record of prior safety breaches. There were, however, systems put in place for reviewing safety precautions and ongoing efforts to avoid risk of injury.

41. The offence was one attracting a maximum penalty of $825,000. The particular circumstances, all parties accepted, put the breach in question in the "mid range" of such offences. The defendant had promptly carried out remedial measures, as did the appellant in this case.

42. Despite the past offences, Haylen J accepted that the record was not a bad one in the circumstances. The principles applied by Haylen J were articulated by his Honour as follows (references omitted):

42. ...

* The true measure of penalty lies in the nature and quality of the offence: subjective factors which mitigate against the seriousness of the offence or exculpate the accused must be secondary consideration.

* The gravity of the consequences of an accident does not of itself dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and culpability of the defendant.

* It will be considered a serious offence where there is an obvious risk or a foreseeable risk to safety and where appropriate measures were not taken although those measures were available, feasible and relatively simple to adopt.

43. Haylen J discounted the appropriate penalty on account of the early plea of guilty by 20%. A fine of $200,000 was imposed.

44. The next case was, again a decision of mine, McCracken v Johnsen [2003] ACTSC 74 (12 September 2003). It was a prosecution of an individual not a corporation. The current scale of penalties provides a maximum of $200,000 rather than $1,000,000 for an individual.

45. The case involved the botched implosion of the Canberra Hospital. It exploded rather than imploded killing a young girl nearly a kilometre away. The appellant had been fined $15,000 by Magistrate Doogan. The maximum penalty had been $25,000. It was so fixed in 1994. Both sides conceded that $12,000 would be a penalty that was within the appropriate range. I did not consider that $15,000 was so far above it as to be "manifestly excessive" and dismissed the appeal accordingly.

46. I fully accept that the level of penalty to be imposed should, as Mr Doig submitted, citing both Lancaster (supra) and Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610:

... ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.

47. Nevertheless, proper recognition must be given to the evidence of the specific efforts the defendant/appellant has made to implement, review and improve its safety program.

48. That was acknowledged by his Honour in this case, but I think it a fair criticism that the appellant's genuine efforts to remedy the wrong to its employee and its ongoing efforts to ensure future safety received inadequate recognition in the level of penalty imposed.

49. I agree that the penalty should be reduced, though to the still record level for this Territory of $100,000.

50. The penalty will be reduced accordingly. I will hear the parties as to consequential orders.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 15 February 2007

Counsel for the appellant: Mr B Walker SC with Mr T Saunders

Solicitor for the appellant: Clayton Utz

Counsel for the respondent: Mr A Doig

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 21 November 2006

Date of judgment: 15 February 2007