Inspector Marshall v Speno Rail Maintenance Australia Pty Ltd [2004] NSWIRComm 1 (27 January 2004)

Last Updated: 30 January 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Marshall v Speno Rail Maintenance Australia Pty Ltd [2004] NSWIRComm 1

FILE NUMBER(S): IRC 441

HEARING DATE(S): 01/12/2003

DECISION DATE: 27/01/2004

PARTIES:

PROSECUTOR

Inspector Bruce Marshall

DEFENDANT

Speno Rail Maintenance Australia Pty Ltd

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTION

Ms L McManus of counsel

Solicitor: Ms H Cameron

WorkCover Authority - Legal Group

DEFENDANT

Mr B Hodgkinson SC

Solicitor: Mr D Newey

Gillis Delaney Brown

CASES CITED: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610

Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416

LEGISLATION CITED: Occupational Health and Safety Act 1983

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: BOLAND J

Tuesday 27 January 2004

Matter No IRC 441 of 2003

Inspector Bruce Marshall v Speno Rail Maintenance Australia Pty Ltd

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

[2004] NSWIRComm 1

1 On 3 February 2001 a rail grinding train owned by Speno Rail Maintenance Australia Pty Ltd ("the defendant") was making its way back north to Grafton after being used to perform rail-grinding work on tracks between Grafton and Braunstone. Travelling on the train were a number of employees of the defendant including Mark Beavis, an electrician operator, Darren Thompson, an electrician, Bradley McBride, a fitter operator, Troy Clarke, an electrician, Craig Kedwell, a maintenance fitter and David Masters, a supervisor. Mr Beavis had been inside a carriage but came outside and facing south stood on a platform on top of C carriage of the train.

2 The train was approaching a pedestrian bridge over the railway line that connected Federation Street to Schwinghammer Street in Grafton. Darren Thompson was on the walkway of C carriage. He called out several times to Mr Beavis to warn him of the approaching bridge, however, Mr Beavis did not respond. The back of Mr Beavis’ head hit the pedestrian bridge. Mr Beavis died on 8 February 2001 as a result of the head injuries he had received.

3 The defendant was prosecuted by Inspector Bruce Marshall ("the prosecutor") of the WorkCover Authority of New South Wales under s 15(1) of the Occupational Health and Safety Act 1983. In an amended application for order the prosecutor alleged that the defendant failed to ensure the health, safety and welfare at work of all its employees, in particular, Mark Beavis in that the defendant failed to:

(a) provide and maintain plant, to wit, rail grinding train RR36-2 (“the train”), which was safe and without risks to health.

(b) ensure that employees did not access the platform on top of C carriage of the train whilst the train was in motion.

As a result of the said failures Mark Beavis was placed at risk of injury.

4 The defendant pleaded guilty to the amended charge.

5 The prosecutor tendered an agreed statement of facts. The statement said that on 5 February 2001 and 6 February 2001, Inspector Dianne Dunlop of the WorkCover Authority visited Grafton Rail Siding to inspect the train and carry out a factual investigation. The statement recorded the outcome of Inspector Dunlop's investigation, which went to a description of the train and carriages and the accident scene. The statement provided the following additional information:

19. The train had not been operating for approximately 2 years prior to its purchase by the Defendant for the North Coast rail grinding job. The train underwent testing by RIC [Rail Infrastructure Corporation] and was certified for use on New South Wales railway tracks prior to its use on the North Coast rail grinding job.

20. On 3 April 2001 Ken Mikl, State Co-ordinator for Working Environment employed by WorkCover, carried out testing on the noise levels of the train whilst in motion. Mr Mikl concluded that it was unlikely Mr Beavis would have heard or understood the shouts of Mr Thompson who was positioned 12 metres away when Mr Beavis was on the platform on top of C carriage.

21. The Defendant did not submit a specific work method statement to RIC for the rail grinding work performed in the North Coast region. A generic work method statement for rail grinding work was developed by RIC and the Defendant approximately 2 years prior to the incident.

22. RIC in conjunction with the Defendant conducted daily work safety briefings with the Defendant’s employees on the North Coast rail grinding job. The briefings were conducted by the RIC rail grinding supervisor on site prior to work commencing each day. The daily briefs were to cover safety control measures for the work site and identify any hazards.

23. The top platform on the water tank of C carriage of the train and the pedestrian bridge at the site of the incident had not been identified as a risk at the daily work briefings.

24. Mr Thompson stated that he thought that he had been told on the day of the accident amongst other things, to beware of overhead bridges. This was in relation to bridges generally and not specifically the bridge at the accident site.

25. Troy Clarke, Darren Thompson and Craig Kedwell were aware prior to the accident not to access the platform on top of C carriage of the train whilst the train was in motion.

26. The Defendant conducted training in the operation of the train for its employees in November 2000. Trevor Toll, rail grinding supervisor employed by RIC, and Robert Swanson, safe working supervisor for RIC, were also given an induction by the Defendant into the operation of the train and were told not to access the top of the train whilst it was moving.

27. The employees of the Defendant who were involved in the rail grinding job had received training and qualifications from Australian Rail Training in Track Safety Awareness and Track Vehicle Operation. These employees also underwent medical assessments for visual acuity, colour vision and hearing as part of the qualification requirements for the courses.

28. The Defendant provided its employees with hazard report and job safety analysis cards as part of the induction kit provided to new employees. The cards were not used regularly by the Defendant’s employees on the North Coast rail grinding job.

29. The top platform of C carriage was in place for persons to fill and check the water tank whilst the train was stationary.

30. Employees were only required to access the external walkways of the train to respond to engine checks and for fire fighting as there was an intercom and UHF communication system for persons to communicate between A carriage and B carriage of the train. On occasions prior to the date of the incident, employees of the Defendant accessed the external walkways of the train whilst it was in motion to smoke cigarettes. Mr Masters, supervisor, was aware of this.

31. Following the accident, the Defendant took the following steps:

(a) Developed a new Work Method Statement in consultation with RIC for the North Coast rail grinding work to replace the generic Work Method Statement which was developed 2 years prior to the accident.

(b) Issued a “Safety Focus” memorandum on 5 February 2001 titled ‘The dangers of moving around machines’.

(c) Issued a safety instruction restricting access to the walkways of the train whilst in motion.

(d) Developed a site safety management plan which was implemented on 28 February 2001.

(e) Reviewed and documented worksite safety training requirements.

32. The Defendant also carried out several modifications to the train as follows:

(a) The access ladders and the top platforms on the water tank at C carriage were removed and replaced with storage cabinets.

(b) Chain barriers and signs were installed outside the doors of carriages A and B to limit access to the walkways whilst the train was in motion.

(c) The number of access ladders to the machine was reduced from 8 to 4.

(d) The handrail of C carriage walkway was extended to form a barrier.

(e) The compressor was relocated from the top of the B carriage to the centre carriage.

(f) Employees working on the train were inducted again and given further instruction on the hazard identification and job safety analysis cards.

(g) Further occupational health and safety training and certification for all the Defendant’s employees was to be completed by 31 May 2001.

(h) A safety audit was conducted on the train on 16 February 2001.

6 Other evidence tendered by the prosecutor was a factual inspection report by Inspector Dunlop dated 14 February 2001 and a bundle of 22 colour photographs showing: the train and its carriages including C carriage and the platform on which Mr Beavis was standing; C carriage situated under the pedestrian bridge where Mr Beavis struck his head; and, modifications made to the carriages of the train following the accident. Information was also tendered showing that the defendant has no prior convictions under the Act.

7 The defendant tendered two affidavits by Mark Thomas White, the defendant's New South Wales contracts manager. Mr White's evidence was extensive and it is important to show the extent to which the defendant was concerned with safety issues and the steps taken by the defendant following the accident. Mr White's evidence may be summarised as follows:

· The defendant had a work method statement that was current at the time of the Beavis Accident. The statement was developed by Speno in conjunction with the Rail Access Corporation("RAC"), (now known as the Rail Infrastructure Corporation ("RIC")).

· In late 2000 Speno developed a plan for works that it would undertake on the North Coast of New South Wales for RAC. This safety plan was designed to condense and summarise the safety aspects of rail grinding for the North Coast contract in 2000/2001. The plan was in place at the time of the incident involving Mark Beavis on 3 February 2001.

· The defendant also had a safety management plan in place for the north coast grinding work.

· Safe Work Method Statements ("SWMS") are prepared for each activity that the defendant performed in carrying out the grinding work as required by WorkCover. The SWMS are a combination of Work Management Plans which defines the specific work to be performed, plus standard process control plans for standard work processes. The defendant also had in place the "Speno 4-step Safety Plan".

· The defendant has procedures concerning safety auditing and at any given time a worksite may be requested to be observed or inspected in relation to safety. This occurs approximately once to twice a year. This procedure is known as an Occupational Health and Safety Audit.

· For new visitors or workers on a Speno site a site induction is required to take place. The purpose of this induction is to provide all persons working/visiting on the site an overview of the Project Safety Management Plan. The Project Safety Management Plan is then available to these people for further reference on request.

· The defendant also had a system of "toolbox meetings". These involve all people working on the job for the day sitting down approximately a half hour before work begins to have a meeting that details the work to be done on that day, highlight any potential dangers in respect of the work to be done, for example, the presence of overhead bridges, or snakes on the tracks, and enforces the Speno 4-Step plan. Within these toolbox meetings, RIC also has the requirement that the workers on the jobs must sign a Pre-work briefing form acknowledging that they have been informed of the work, any potential risks and hazards and the general nature of the job. The workers are also required to sign off on a Worksite Protection Plan which is another document provided by RIC that details potential hazards, and ensures all protective clothing that is required is worn. All employees must sign this in acknowledgement prior to beginning work on the job each day.

· The Defendant had in place an occupational health and safety policy. This policy described management's responsibility to provide a safe and health workplace, appropriate and well maintained equipment, safe operating procedures and methods of work, appropriate training of all employees to work safely and efficiently, adequate and experienced supervision, correct personal protective equipment, and the rehabilitation of workers.

· A "Safety Focus" is issued in response to various hazards/safety issues that arose throughout the work on a particular site or sites in general. This process was in place prior to the incident Beavis Accident and continues to be in force in conjunction with the Speno 4-step plan today.

· The defendant took immediate steps after the accident involving Mr Beavis to prevent a recurrence. As a part of the safety review associated with the incident on 3 February 2001 the following restrictions for accessing walkways were implemented effective of 8 February 2001:

(a) no access to walkways whilst machine is in travel mode;

(b) chain barriers be placed at both ends of walkways, prior to departure the chain barriers are to be located outside of the door of A and B cabins;

(c) in the event of an emergency the train should be brought to a standstill prior to removing the chain barrier and entering the walkway;

(d) all walkways and machine exit and entry points will have barrier chains installed prior to the machine travelling;

(e) the walkway may be accessed while the machine is in grinding mode on single line working only when it is necessary and only after the train supervisor has been notified;

(f) the walkway barriers may be removed during a maintenance period and whilst the machine is stable.

· Following the incident involving Mark Beavis on 3 February 2001, a Safety Focus on the dangers of moving around machines was issued around 5 February 2001. The Safety Focus was also spoken about in the Toolbox meeting and Pre-Work Briefing and all employees were required to sign off on the document in acknowledgement that they had read and understood the document.

· A draft copy of a Site Safety Management Plan for rail grinding machine RR36-2 was issued to employees for comment on 7 February 2001 in direct response to the incident involving Mark Beavis on 3 February 2001. The Site Safety Management Plan was approved and issued for implementation on 28 February 2001.

· The Safety Management Plan requires safety training in the way of inductions for all personnel prior to commencing work on site, job safety training to reach satisfactory competency levels in:

(i) hazard identification;

(ii) work site safety inspection;

(iii) job safety analysis;

(iv) accident/incident reporting and investigation;

(v) emergency response;

(vi) isolation and lock out procedures;

(vii) personal protective equipment requirement and usage;

(viii) safety meeting/safety briefing procedures.

· The Safety Management Plan enforces a level of work site safety protection which is required to be explained to all employees on site during the daily track side safety briefing. These are known as Toolbox Meetings and Pre-Work Briefings as required by RIC.

· The operator competency and training records are maintained with a register of employee inductions, qualifications and competencies.

· Daily safety meetings/briefings are now enforced in a way of short informal safety meeting involving all members of the work team prior to the commencement of each work shift. Topics for discussion include:

(i) work program or plan for the shift;

(ii) allocation of tasks and responsibilities, in particular those relating to site safety;

(iii) hazards associated with the work;

(iv) safety issues/concerns for the previous shift;

(v) sessions to clear the air of any friction or frustration within the work team and to progress with the team on working safely together.

· Monthly meetings have now been instituted with the site supervisor to chair a formal safety meeting of all work team members on site. Previously the monthly meeting was less formal. These meetings are in addition to the daily onsite meetings. Topics of discussion include:

(i) action items for previous minutes;

(ii) follow-up action items from safety inspections;

(iii) accident/incident recall;

(iv) review monthly safety performance of statistics;

(v) monthly safety topical theme;

(vi) any new business including any safety concerns the team may have.

· All employees are briefed on their responsibility for identifying and reporting workplace hazard and all employees are required to carry a pocket size hazard card (SF27) and a pocket sized Speno 4-Step pad of paper with them at all times to immediately report a hazard identified by them. Speno require that employees deliver the hazard report card to the Site Supervisor and action is taken immediately to eliminate or control the hazard. The report card is then forwarded to the Technical Administrator in the Perth Office for logging and further action if required.

· In the all Speno Site Safety Management Plans particular attention is drawn to risks due to low overbridges and other overhead obstructions.

· Since the Beavis Accident all safety management plans specify employees are not to access the top of the machine or the machine walkways when the machine is in motion.

· General safety inspections are now enforced where the site supervisor, safety representative and/or operator nominated by the site supervisor conducts safety inspections of the rail grinding machines, vehicles, plant and equipment on site. All grinding machines are now required to be inspected on a monthly basis using Speno form SF31. This was required prior to incident on 3 February 2001 and continues to be in place.

· New procedures were implemented following the Beavis Accident in respect of new employees commencing work on site. New employees now receive the following documents prior to commencing work on site:

(a) Speno company induction which includes instruction on the company's OH&S management system.

(b) OH&S policy.

(c) Individual and company OH&S responsibilities.

(d) Safety awareness.

(e) Safety meetings.

(f) Work site safety inspections.

(g) Accident reporting and investigation.

(h) Drug and alcohol policy.

(i) Work site and machine specific safety induction.

(j) Speno 4-Step Plan

(k) Speno Hazard Identification Pocket-sized Cards

(l) Site specific client inductions/safety awareness training.

· Speno continues to refine and improve its O H & S systems. Two safety awareness courses are currently being refined, one being a basic level for new employees and the other an advanced level for supervisors.

· A work method statement was designed specifically for rail grinding of RIC track, North Coast, New South Wales following the Beavis Accident.

· The following changes were implemented specifically as a consequence of the Beavis Accident.

(a) steps and platforms were removed from the top of the water tank on the centre wagon;

(b) access ladders to the machine were reduced to 4 only, all others were moved and handrails were modified and access points on/off machine have been reduced from 8 to 4;

(c) barriers and signs were installed outside "A" and "B" cabin doors limiting access to walkways of machine;

(d) removed compressor from the top of the locomotive and repositioned it on the centre wagon;

(e) installed barrier to ladder for accessing roof of locomotive;

(f) removed gantry from water tank;

(g) handrail modification between articulations;

(h) safety chains have been removed and a barrier is now in place as against the walkway;

(i) water level indicator on the water tank has been inserted so that people can no longer stand on top of the water tank;

(j) kick plates installed on walkways;

(k) handrail/grab rails installed on water tanks;

(l) storage compartments placed on water tank to relieve walkways and workshop storage;

(m) safety sign replacement on all trains;

(n) barriers installed adjacent to A and B cab doorways to be in place while the machine is in any form of manual mode;

(o) workshop door replaced with two way handle;

(p) workshop door swing amended to avoid collision between B and control cabin and workshop;

(q) unified RIC - Speno safety agreement.

· Speno introduced various amendments and updates to its Occupational Health and Safety Manual to accommodate for additional procedures and forms that were developed and implemented following the incident involving Mark Beavis.

8 It may be seen from this evidence that the defendant was, indeed, very conscious of its responsibilities towards health and safety and that the measures taken after the accident to avoid a recurrence were swift, appropriate and comprehensive.

Consideration

9 In considering the objective seriousness of the offence it is evident from the agreed statement of facts that the defendant was aware that on occasions employees accessed the external walkways whilst the train was in motion to smoke cigarettes and that employees walked around the train whilst it was in motion. The defendant had not identified the top platform on the water tank on C carriage and the pedestrian bridge as a risk at the daily work briefings and there were no chains or guarding to prevent persons from accessing the platform. However, as the prosecutor submitted, some employees were aware not to access the platform whilst the train was in motion and at least one employee thought he had been told to beware of overhead bridges generally. This would suggest that the defendant was aware of a risk to safety and had instructed employees or at least some of them, not to access the train whilst it was moving but that the defendant failed to ensure those instructions were adhered to.

10 In the circumstances, I also consider that it was reasonably foreseeable that a person accessing the external walkways that ran alongside C carriage might, in the absence of any barrier, also access the platform on the water tank on the carriage via the stairway. It was also reasonably foreseeable that a person who stood on the platform whilst the train was in motion would be at risk of injury.

11 In Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32] the Full Bench recently referred to the implications of death or serious injury for the assessment of the seriousness of the offence:

32 In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

12 In the present case it is apparent that the defendant was clearly safety conscious and had an extensive system and procedures in place to protect the health and safety of its employees. However, there was a tragic lapse on the defendant's part in failing to ensure that employees followed instructions not to access the top of C carriage. The occurrence of death in this case highlights the very serious risk involved in failing to ensure there was no access to the platform on C carriage whilst the train was in motion.

13 The failures by the defendant were easily remedied. As the prosecutor submitted, the measures available to avoid the risk included ensuring that:

(a) the train was safe and in particular that the top platform of C carriage was not readily accessible whilst the train was in motion;

(b) the risk was properly identified and conveyed to all employees;

(c) employees were prevented from accessing the top of the platform of C carriage;

(d) barriers and warning signs were in place.

14 In accordance with the Full Bench judgment in Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, in assessing penalty, it is necessary that the Court have regard to the need for general deterrence. As the Full Bench observed at [75]:

The need for general deterrence in relation to serious offences under the Act is undeniable.

15 In relation to specific deterrence the Full Bench in Capral Aluminium said at [77]:

77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46.

16 The defendant’s undertaking as a specialist maintenance contractor, involves inherent risks to safety and it would appear that the defendant continues to operate in this industry. However, following the incident involving Mr Beavis the defendant took comprehensive measures to avoid a recurrence of the risk and I am entitled to take these into account in determining what weight I should give to the need for specific deterrence in assessing penalty. The measures included:

(a) development of a new Work Method Statement to replace the generic Work Method Statement;

(b) issue of a Safety Focus “Dangers of Moving Around Machines” dated 5 February 2001;

(c) issue of a safety instruction dated 8 February 2001 and related Job Safety Analysis on 3 February 2001;

(d) issue of a memorandum dated 8 February 2001 to all rail grinding personnel;

(e) implementation of a Site Safety Management Plan which included risks due to overbridges and other overhead obstructions and a prohibition on accessing the top of the train or train walkways whilst the train was in motion;

(f) putting in place chain barriers at both ends of the walkways prior to the departure of the train pursuant to the safety instruction dated 8 February 2001; removing safety chains and installed a barrier against the walkway; installing barriers adjacent to A and B carriage doorways which were to be in place while the train was in any form of manual mode;

(g) removing steps and platforms from the top of the water tank on the C carriage;

(h) reducing the access ladders to 4 only and modified handrails;

(i) installing barriers and signs outside A and B carriage doors limiting access to walkways of the train;

(j) installing a barrier to the ladder for accessing the roof of the train;

(k) inserting a water level indicator so that people could no longer stand on top of the water tank.

17 In considering the weight to be attached to specific deterrence I am also entitled to take into account the defendant's commitment to occupational health and safety and hitherto good safety record.

18 There are a number of subjective factors to be taken into account. Firstly, the defendant is entitled to have taken into account its plea of guilty, as mitigating the objective seriousness of the offence. In this case, as the prosecutor conceded, the plea of guilty was entered at an early stage. Secondly, the defendant is also entitled to have taken into account in mitigation any preventative measures implemented by it since the incident. These measures were described in Mr White's affidavit. Thirdly, the defendant has no prior convictions and fourthly, the prosecutor agrees that the defendant cooperated with WorkCover's investigations into the incident.

19 In light of the objective seriousness of the offence I consider that the appropriate penalty is $240,000. However, this should be discounted by 25 per cent to take into account the utilitarian value of the early guilty plea and a further 10 per cent for the other subjective factors. This results in a penalty of $156,000.

Orders

20 The Court makes the following orders:

1) The offence is proven and a verdict of guilty is entered.

2) The defendant is convicted of the offence as charged.

3) The defendant is fined an amount of $156,000 with a moiety thereof to the prosecutor.

4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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LAST UPDATED: 30/01/2004