Inspector Batty v Jt Fossey (Trucks) Pty Ltd [2004] NSWIRComm 18 (27 February 2004)

Last Updated: 4 March 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Batty v JT Fossey (Trucks) Pty Ltd [2004] NSWIRComm 18

FILE NUMBER(S): IRC 4329

HEARING DATE(S): 03/03/2004

DECISION DATE: 27/02/2004

PARTIES:

PROSECUTOR:

Inspector Batty

DEFENDANT:

JT Fossey (Trucks) Pty Ltd

(ACN 055 971 009)

JUDGMENT OF: Schmidt J

LEGAL REPRESENTATIVES

PROSECUTOR:

Ms PE McDonald of counsel

SOLICITORS:

Legal Services Branch

WorkCover Authority of New South Wales

DEFENDANT:

Mr G Smith of counsel

SOLICITORS:

Sparke Helmore

CASES CITED: Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (2001) 106 IR 435

LEGISLATION CITED: Fines Act 1996

Occupational Health and Safety Act 1983

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Schmidt J

DATE: 27 February 2004

MATTER NUMBER IRC 4329 OF 2002

INSPECTOR BATTY v J.T. FOSSEY (TRUCKS) PTY LTD

Prosecution under s15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

1 The defendant has pleaded guilty to one charge brought under s15 of the Occupational Health and Safety Act 1983 ('the Act'). The charge arose out of an accident on 24 August 2000, involving Mr Craig Randle, one of the defendant's employees. Mr Randle sustained fatal injuries when he was crushed by an hydraulic jack located on a vehicle inspection system, while working on the brakes of a truck, provided to the defendant for inspection and repair. The offence charged was:

FAILED TO

ensure the health, safety and welfare at work of all it's employees, in particular Craig John Randle, in failing to ensure the health, safety and welfare at work of it's employees contrary to Section 15(1) of the Occupational Health and Safety Act 1983.

Particulars of the charge against the defendant are:

a) Failed to provide or maintain plant and systems of work that was safe and without risks to health in that the employer’s employees were required to use plant, namely the vehicle inspection system, which could accidentally operate.

b) a couple of months before 24 August 2000, failed to provide or maintain plant and systems of work that was safe and without risks to health in that the employer’s employees were required to use plant, namely the vehicle inspection system, which had a warning label attached which directed that the spotlight be placed on the surface in which the control switches to the jack and shaker would be in contact with the resting surface.

c) Failed to provide or maintain plant and systems of work that was safe and without risks to the employer’s employees in that the alarm attached to the plant, namely the vehicle inspection system, which made a sound when the jack was in operation was inoperative and not in working order on 24 August 2000.

d) Failed to provide or maintain plant and systems of work that was safe and without risks to health to the employer’s employees in that unauthorised employees were not prevented from operating the plant, namely the vehicle inspection system.

e) Failed to provide or maintain a working environment for the employer’s employees that was safe and without risks to health and safety at work in not preventing employees from working underneath vehicles positioned on the plant, namely a vehicle inspection system, whilst the plant was under power.

f) Failed to provide such information training and instruction in the use of the plant, namely vehicle inspection system, as may be necessary to ensure the health and safety at work of the employer’s employees, particularly Craig John Randle.

g) Failed to make arrangements for the provision of an adequate risk assessment of the use and operation of the plant, namely the Vehicle Inspection System, to ensure the safety and absence of risk to the health of the employer’s employees at work, particularly Craig John Randle.

2 The parties tendered various documents, including an agreed statement of facts. Affidavit evidence was given by Terence Keating and Graham Emery, who were not required from cross examination.

3 The agreed statement of facts relevantly provided:

1. At all material times, the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the Occupational Health and Safety Act 2000 to institute proceedings in the within matter.

2. In the alternative the Prosecutor was an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under Section 48 of the Occupational Health and Safety Act 1983 (the Act) to institute proceedings in the within matter.

3. Between 1 August 1999 and 25 August 2000 (“the said dates”) J T Fossey (Trucks) Pty Ltd (ACN: 055 971 009) (“the defendant”) was a company duly incorporated with its registered office at Lot 301 Pacific Highway Hexham in the State of New South Wales (the Premises).

4. Between the said dates, the defendant:

a. Carried on business, for reward, which included providing motor vehicle mechanical services at the Premises; and

b. Employed Craig John Randle as a motor mechanic.

5. In August 1999, the defendant purchased a Vehicle Inspection System, serial number: CAM: 22913, (“the said plant”), from Vehicle Inspection Systems Pty Ltd (“VIS Pty Ltd”).

6. On 24 August 2000 Craig John Randle was carrying out his employment as motor mechanic/supervisor for the defendant at the said premises.

7. On 24 August 2000 Craig Randle was acting in the position of afternoon shift foreman for the defendant. He supervised 3 employees on this shift. These three (3) employees had varying levels of experience and expertise. Mr Randle was appointed to this acting employment by the Workshop Manager, James Maher on 21 August 2000. He was appointed to the acting position as a result of the normal incumbent, Mr Preece, being absent on leave. Prior to this temporary appointment Mr Randle had acted as supervisor on 8 July 2000. Each of these acting shifts was for 7.6 hours.

8. Prior to appointing Mr Randle to the position of supervisor, Mr Maher did not consider the extent of Mr Randle’s knowledge and training in relation to the use of the plant. However, he knew that Mr Randle had been shown how to use the plant by the afternoon shift foreman, Mr Greg Preece.

9. Also, Mr Maher did not make himself aware of any training in occupational health and safety provided to Mr Randle in relation to his responsibilities as a supervisor. However, he had had discussions with Mr Randle about safety issues from time to time.

10. Other than being shown how to use the plant by the afternoon shift foreman, Mr Preece, Mr Randle had not been provided with training by VIS Pty Ltd in the use and operation of the plant. Mr Randle had not been provided with any formal training in his responsibilities as an acting Supervisor.

11. Of the persons on the afternoon shift, Mr Merrick and Mr Chapman sometimes used the plant in the undertaking of their respective duties, although they were not authorised to operate it. The only persons authorised to use and operate the plant prior to and including 24 August 2000 were Mr Maher, Mr Hallett, Mr Johnston, Mr Preece and Mr Pearce. None of these persons were working the afternoon shift on the (sic) 24 August 2000. But other persons, particularly Mr Randle and other persons under his control had used and operated the plant, although they had no formal training of its use or operation. There was no system in place to prevent the unauthorised use of the plant. Mr Randle was never told not to use the plant but had the discretionary power to use it without reference to any person concerned in the management of the organisation.

12. Prior to the accident on the (sic) 24 August 2000, employees of the defendant performed repair work underneath vehicles whilst those vehicles were positioned on the plant. This work was carried out both when the plant was under power and when it was turned off. This system of work particularly occurred in relation to the adjusting of brakes.

13. An audible alarm was provided and attached to the console of the plant. This alarm was intended to sound when the hydraulic jack was in any position other than fully retracted. The alarm was not functional at the time of the accident on the (sic) 24 August 2000 and also at the time of Inspector Batty’s inspection on 25 August 2000. The alarm had been inoperable for a short period of time prior to 24 August 2000 and that this was not known to the senior management of the defendant until 25 August 2000.

14. Between 10.30am and 11.00am on 24 August 2000, Mr Allan Lever, a driver employed by Cherie Industries Pty Ltd, delivered a Mitsubishi Cab Chassis truck, Queensland registration 980FHC to the said premises of the defendant for a pre arranged mechanical service of the vehicle. This vehicle had a single rear axle and dual wheels. Mr Maher booked the vehicle in for the required service, which included the adjustment of the vehicle’s brakes. The mechanical service of this vehicle by the defendant was to be performed on 24 August 2000.

15. During the day shift employees of the defendant, particularly Mr Nicholas, performed some work required on the vehicle. At approximately 3.30 pm Mr Martin, an apprentice mechanic on the afternoon shift, commenced to perform some work on the vehicle. Prior to commencing this work Mr Martin was informed by Mr Nicholas that a brake test was required to be undertaken on the vehicle. Mr Martin relayed this information to Mr Randle. Mr Randle instructed Mr Martin to leave the work on the vehicle as he had other work for him to perform.

16. At about 6.40 pm on 24 August 2000 Mr Lever attended at the premises to collect his vehicle. He was informed that the vehicle would not be ready for collection for about 20 minutes because a check of the brakes on the vehicle had to be performed. He waited in the waiting room for the work to be completed.

17. On being informed of the arrival of Mr Lever to collect his vehicle Mr Randle and Mr Martin went together into the workshop at Bay 7 of the premises, to perform the brake test on the vehicle. In Bay 7 was situated the plant. In carrying out this work Mr Martin drove the vehicle to the approach of the plant where Mr Randle, who was standing on the workshop floor next to the plant, placed the trucks details into the computer of the plant.

18. Mr Martin shortly after placed the truck onto the rollers of the plant and in conjunction with Mr Randle conducted a test of the front brakes of the vehicle. Mr Martin then, at the direction of Mr Randle, drove the vehicle further onto the rollers where Mr Randle commenced to test the rear brakes of the vehicle. The vehicle failed the first and subsequent test conducted on the brakes. Mr Randle then directed Mr Martin, who was sitting in the driver's seat of the vehicle, to stop the engine of the vehicle which Mr Martin did. Mr Martin then observed Mr Randle walking away from the plant towards Bay 6 of the premises.

19. Shortly after Mr Martin observed Mr Randle return to the vehicle. Mr Randle then positioned himself underneath the vehicle. The plant was on. Mr Randle had with him or placed nearby the spotlight that was attached to the plant. At the time Mr Randle had with him a 9/16" open-end ring spanner suitable to carry out the brake adjustment on the rear wheels of the vehicle.

20. Mr Randle positioned himself on the floor underneath the vehicle with his upper body on top of the hydraulic jack of the plant, the tail shaft of the vehicle being above the jack. During the work he was performing the switch that operated the upward motion of the jack apparently was accidentally activated causing Mr Randle to be trapped between the jack and the tail shaft of the vehicle he was working on. From this he suffered major injuries which caused his death.

21. The circumstances causing the switch of the jack to depress accidentally or inadvertently were either because the spotlight was lying on a surface, for example, among the hydraulic lines and was depressed accidentally or inadvertently; or, it was on a flat surface within close proximity to the area of Mr Randle and he had made contact with it thereby applying pressure to the switch whilst he was moving around on the floor underneath the vehicle causing the jack to accidentally or inadvertently operate; or, that the spotlight was lying on its switches that were protruding without protection from the casing of the spotlight and it automatically operated the switch to put in motion the jack.

22. Shortly after Mr Randle got under the vehicle, Mr Martin heard a moaning noise, whereupon he got out of the vehicle. He then went towards the rear of the vehicle and observed Mr Randle underneath the truck trapped by the chest between the hydraulic jack of the plant, which was in the raised position, and the tail shaft of the truck. Mr Randle was lying face down with his feet pointing towards the front of the vehicle. His chest and stomach area was on top of the surface plate of the jack. Mr Martin also observed that the spotlight was lying amongst the flexible hydraulic supply hoses immediately in front of and below where Mr Randle was trapped.

23. After Mr Martin called for assistance, he climbed underneath the truck and retrieved the spotlight and depressed the switch to bring the jack down. Mr Randle was observed to have a lot of blood coming from his nose and mouth. Shortly after an ambulance arrived and Mr Randle was removed from underneath the vehicle and positioned on the floor of the workshop near the control panel of the plant. Paramedics arrived shortly after and after working with the ambulance officers for about 10 minutes in an attempt to resuscitate Mr Randle they indicated that they had been unsuccessful.

24. On 25 August 2000, the Prosecutor, Inspector Batty attended the premises of the defendant and observed the plant in Bay 7 of the premises. The plant was a multifunctional plant used for conducting brake testing and steering and suspension checks on vehicles. The plant consisted of two sets of dual hydraulically powered rollers onto which the rear wheels of vehicles undergoing tests are positioned. The plant was operated by a portable hand control, which was connected to the plant by cable. The hand control contained a liquid crystal display (LCD) which indicated left and right braking forces and the balance across the axle being tested. It also had the capability to show the weight of each wheel and of the axle. The brake test could be downloaded to the inbuilt computer and a report generated via the printer.

25. The steering and suspension testing system used two hydraulically powered moveable plates of dimensions 500mm x 980mm which were located immediately in front of the powered rollers. With the vehicles wheels positioned on these plates a built-in hydraulic jack centrally located between the moveable plates and having a steel lifting platform of dimensions 444mm x 335mm lifted the axle under test until the tyres were just in sliding contact with the plates. The plates were then hydraulically moved in fore and aft and in and out direction to simulate road shock. The movements of components were then checked using the hand held spotlight.

26. Located to the rear of the hydraulic jack were a series of flexible hydraulic hoses being connected to, amongst other things, the ram that operated the jack.

27. Positioned on the approach to the rollers were two tapered aluminium ramps, on the left and right hand sides, whilst on the opposite (off-side) there were four 1200mm long x 800mm wide x 150mm high rectangular ramps butted together in a horizontal plane. These were positioned on the floor on the right and left hand sides.

28. When standing at the offside of the rollers and facing the doorway of Bay 7 of the premises, an electronic control panel, totally enclosed electric motor and hydraulic valve and piping were positioned at the left-hand side of the rollers. Affixed to the bottom left hand corner of the electronic control panel was trefolite labelling which had inscribed thereon: CAM: 22913 (Serial Number) and details of the manufacturer, VIS Pty Ltd.

29. The front of the panel was fitted with a series of control buttons, which included a mushroom head emergency stop and a yellow recessed emergency jack down button.

30. Positioned slightly above centre height and towards the left-hand side of the panel were two plugs in outlets nominated from left to right as “Side Slip” and “Computer” respectively. A blue flexible lead was plugged into the Computer outlet.

31. Immediately underneath was a bank of three similar type outlets nominated from left to right as “Driver Display”, “Spotlight” and “Hand Controller”, respectively. A black flexible lead approximately 20 metres long was plugged into the “Spotlight” outlet and at its opposite end was a black hand held spotlight with the name “Maxtel” and the letters “JF” encircled being legible on the glass. The length of the cord facilitated the spotlight to be used in other Bays of the premises whilst the plant was in Bay 7 of the premises under power.

32. The spotlight had a warning cast into its rear casing, that is, where the switches were located, which operated the spotlight, jack and shaker plates. The warning label stated that the spotlight should not be placed face down, that is with the glass face on the ground. Thus, the direction from VIS Pty Ltd was that the spotlight should be placed with the switches that operated the spotlight, jack and shaker plates directly on the surface. If this occurred, the spotlight would be supported by the switches, which could result in the jack and/or shaker plates being operated accidentally or inadvertently.

33. The spotlight had affixed to its rear casing, a “red rocker” type positive action switch which, when activated turned the spotlight on. Immediately above on the left and right hand sides of the light switch were 2 sets of 2push type switches, which were identified as "Jack" and "Shaker" respectively. The switches protruded through a trefolite plate on the rear case of the spotlight and each switch was secured to the case by a hexagon nut screwed onto its threaded outside diameter. The switches, which extended from the rear casing of the spotlight control by approximately 9mm, were unshrouded. Thus there was no guarding or means of preventing the accidental or inadvertent operation of any of the powered motions of the jack or shaker plates. Depressing and holding a very slight downward force to any of the switches enabled them to operate the jack or shaker plates.

34. The connecting plug of the spotlight had affixed to its surface an adhesive inspection tag of the VIS Pty Ltd that identified it as having been tested by AO on 2 July 2000.

35. The jack when activated by depressing the jack switch at the rear of the spotlight from its retracted position to full extension, a distance of approximately 400mm, took about 5.14 seconds.

36. The Hand Controller was connected by a round black flexible cord from the outlet at the front of the panel and attached to the other end was a rectangular shaped black and yellow touch pad controller.

37. Located in the top right hand area of the panel was a printer mechanism. A printout of a vehicle inspection report relating to vehicle registration number 980FHC was intact in the printout mechanism.

38. Located at the rear of the console was an inoperable electrical warning siren designed to sound when the jack was in any position other than being fully retracted.

39. Affixed to the nearside rear of the metal frame of the plant, at 1.19 metres from the side of the hydraulic jack, was a mushroom head emergency stop button.

40. On 31 August 2000 the Prosecutor Inspector Batty attended the Premises and he lay the spotlight on its back, that is, supported by the switches and applied light downward finger pressure to the control at various locations. This caused the shaker plates and the jack to activate on a number of occasions.

41. Subsequent testing undertaken by TestSafe Australia showed that the switches on the rear of the spotlight could be activated with an applied downward pressure of 235 grams. Similar forces were required to operate the other switches on the spotlight. The overall weight of the spotlight was 590 grams.

42. Some employees of the defendant had been told by representatives of VIS Pty Ltd that the spotlight was to be put down, when not being used, with the globe facing upwards to protect the light function. If placed down as directed by VIS Pty Ltd the jack or shaker plates could accidentally or inadvertently operate if the plant was on.

43. The spotlight was manufactured by Maxtel and designed for use as a spotlight. A warning was cast into the plastic housing of the spotlight to avoid damage being caused to the spotlight lens. These spotlights were purchased as a stock item and subsequently modified by VIS Pty Ltd by placing the jack and shaker plate switches on the outside and rewiring them to make them compatible to VIS Pty Ltd design. The warning label was not changed nor were the switches guarded to overcome the accidentally (sic) or inadvertent operation of either the jack and or shaker plates.

44. Since the defendant acquired the plant for use at the said location in about August 1999 the spotlight was replaced from time to time with a replacement by VIS Pty Ltd. All the replacement spotlights were of a similar type and design as that which was in use on 24 August 2000. That is, each one had been fitted with unshrouded jack and shaker plates switches.

45. An initial demonstration on the operational aspects of the plant was provided to selected employees of the defendant by Mr Smith from VIS Pty Ltd when the plant was initially purchased. At a later stage Mr Bryce from VIS Pty Ltd provided further training to selected employees in the use of the plant. The intention of the further training was to provide sufficient knowledge to two (2) employees, who would then be equipped to train others at the workplace. At the completion of the training they were presented with a certificate of recognition. During the initial demonstration and subsequent training the potential for inadvertent or accidental activation of the switches of the jack and shaker plates was not addressed.

46. Also, the demonstration and subsequent training provided to some employees of the defendant by VIS Pty Ltd in the use and operation of the plant failed to identify and inform the participants of the safety aspects associated with the use of the plant.

47. Inquiries made during the investigation have disclosed that the RTA at Carrington Newcastle in the State of New South Wales had a similar plant to that at the first defendant premises. The spotlight of the RTA machine was similar to the one involved in the accident in that it was hand held with the jack/shaker switches fitted to it's rear case. The significant difference was that the RTA unit had the jack/shaker switches recessed into the rear of the light as opposed to the protruding type fitted to the spotlight involved in the accident.

48. Following the accident on 24 August 2000 the defendant revised its safety procedures at its premises to ensure the health, safety and welfare at work of all the employer’s employees, particularly in relation to the use of the plant. The following action was taken by the defendant:

a. The plant is now padlocked;

b. The plant now has chains fitted to three (3) sides;

c. The spotlight control and keys for the isolating switch are held under locked conditions in the Managers office;

d. A book is maintained in the Managers office which requires the person collecting the spotlight control and keys to sign for their release in and out of the office;

e. The plant is only able to be used by persons who are deemed competent by the company and are in receipt of a certificate of recognition from the second defendant (sic) confirming their instruction on the plant.

4 The evidence showed that the defendant's maintenance and repair business was closed in May 2002, as the result of a downturn in the truck industry and difficulties which the defendant experienced in obtaining adequate insurance, as the result of the accident involving Mr Randle. The company's 30 employees were made redundant and the defendant ceased trading. Its assets as at June 2003 were in the order of $116,000.

5 Mr Emery's evidence was that the vehicle inspection machine involved in the accident had been acquired in December 1999 at a cost of $155,000 from Vehicle Inspections Systems Pty Limited ('VIS'). That company has pleaded guilty to two charges under s18 of the Act, arising out of the same circumstances.

6 Mr Emery described the investigations undertaken by the defendant prior to the purchase of the equipment and the training provided by VIS to several of the defendant's employees. Mr Emery also described the steps taken by the defendant to investigate the cause of the accident; to assist the WorkCover Authority in its investigations; to address the deficiencies which the accident had revealed and to assist its other employees and Mr Randle's family, to deal with the consequences of his death.

7 The maximum penalty for this first offence was $550,000. The case advanced for the prosecutor by Ms McDonald of counsel was that the proper inference from the evidence was that the accident occurred while Mr Randle was working on the adjustment of the brakes of the truck then located on the inspection equipment. It was accepted that given the evidence that the defendant no longer conducted its former business, specific deterrence had no role to play in determining the sentence to be imposed. It was submitted, however, that regard would be paid to the need for general deterrence.

8 The prosecution submitted that the offence had been shown to have been a serious one. The risk of injury was obvious and reasonably foreseeable, with the likely result, serious injury or death. The equipment had an alarm to warn when the jack was raised, which was not operational. This showed the foreseeability of the jack being raised accidentally, as did the design of the spotlight, which permitted the jack to be raised, by a light downward pressure on the switches. The spotlight also had a written instruction warning that it not be placed face down, which further increased the possibility of accidental operation of the switch.

9 The evidence of the defendant's system of work, which permitted an employee to work under a vehicle, while it was located on the equipment, while it was not isolated, further increased this possibility. The evidence had demonstrated the defendant's failure to be proactive in ensuring safety at its workplace.

10 The nature and quality of the offence was submitted to have been revealed by the gravity of the injury resulting to Mr Randle and the simple steps available which would have ensured his safety. The steps taken after the accident also well demonstrated this.

11 It was accepted that the defendant had entered its plea to the amended charge pressed at the earliest opportunity and was thus entitled to a discount for this and other subjective features. It was also accepted that pursuant to s6 of the Fines Act 1996, account would be taken of the defendant's means. As to parity, it was submitted that comparisons were difficult to make with VIS, given the different nature of the charges in question. It was submitted that the defendant had greater culpability for the risks in question than VIS, given the evidence as to the failures in its systems of work, although it was acknowledged that in respect of the design of the switches, the defendant had relied upon the expertise of VIS.

12 The case advanced for the defendant by Mr Smith of counsel was that the Court would accept that the defendant had relied upon the expertise of VIS, both in relation to the design of the equipment and the proper training of its staff. Account would also be taken of the fact that Mr Randle had been an experienced mechanic, appointed acting supervisor, who should have known not to place himself on an unisolated jack under a vehicle and who did so, contrary to usual practice. (I note, however, that there was a dispute as to whether there was any evidence as to the defendant's usual approach to the performance of such work.) It was submitted that while the defendant accepted that Mr Randle had been performing work on the brakes at the time of the accident, why that work was being done, was unclear to the defendant, given documentary evidence which suggested that the work had already been performed by another employee, earlier in the day.

13 The defendant emphasised its contrition in respect of what had occurred and submitted that regard would be paid to this, as well as to its financial position, which it was submitted had deteriorated since June 2003, although no evidence was led to support that submission.

Consideration

14 There can be no doubt on the evidence that this was a serious offence. Not only were there obvious defects in the equipment in question, which permitted the inadvertent operation of this jack, the defendant's systems were wholly inadequate, in precluding this possibility from occurring.

15 Mr Randle was put in charge of the employees working on the shift in question. It was common ground that he had been inadequately trained in the operation of this equipment and was permitted to operate it, in the absence of anyone who had such training. Not only that, but the way in which the equipment was operated by the defendant, permitted employees to work under a truck, on and around a jack which could be inadvertently raised, within 5 or so seconds, because the equipment was not isolated. The risks which this posed were grave and readily foreseeable, making the offence a most serious one. The simple steps taken after the accident to address this risk, confirmed that conclusion.

16 It was submitted for the defendant that the inactivation of the alarm, which sounded if the jack operated, had no consequence in the circumstances. I cannot accept the submission. The alarm was obviously a warning device. The evidence, such as it was, did not permit of the conclusion that the injuries which here occurred might not have been as serious, if Mr Randle or other employees had been alerted to the jack's operation, by the sounding of the alarm, especially if they had been properly trained in what it was a warning of.

17 I note that Mr Randle was an experienced mechanic, who could be expected not to have placed himself in danger by lying on an unisolated jack, under a vehicle, while working on the brakes. The evidence showed, however, that he and Mr Martin were working on the brakes, in the evening, while the truck's owner was waiting to collect it. It is unnecessary to speculate as to whether this caused Mr Randle to take a shortcut which otherwise he would not have done. It is sufficient to note that I am bound by Full Court authorities which make it plain that employers are obliged to ensure the safety of even experienced employees, who through haste, inattention or negligence, take risks contrary to the obligations imposed by the Act. The defendant's failures in this regard, were abundantly plain, as its plea accepted.

18 As to parity, I am satisfied that while the defendant obviously relied upon the expertise of VIS in relation to the design of the equipment in question, the defect which permitted the jack to be operated inadvertently was an obvious one, given the little pressure required to operate the switches on the spotlight. The other aspects of the evidence amply showed that in terms of culpability for the events in question, that of this defendant was higher than that of VIS.

19 The defendant's failures in relation to the proper training and supervision of its staff, as well as the system of work in place, put this conclusion beyond doubt. The steps taken by the defendant after the accident to address these matters, also amply confirmed that conclusion.

20 In determining sentence, the means of the offender must also be considered, as the Fines Act 1996 requires. This requires however, that the objective seriousness of the offence not be overlooked (See Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 particularly at [81] to [84]). The fact that a heavy penalty for a serious offence may be a burden for a defendant, is not a basis for fixing a penalty which does not properly reflect the objective seriousness of the offence in question. Adopting that approach, I have taken account both of the financial position of the defendant and the fact that it no longer operates the business, to somewhat temper the penalty which would otherwise be imposed. The need for general deterrence, is however, a factor to which I have also paid regard. The result of this consideration is a fine of $150,000, for an offence which I consider, as I have indicated, a serious one.

21 As to discount, I am satisfied that the early plea should result in a discount of 25% for utilitarian savings. I am also well satisfied on the evidence as to this defendant's very real contrition for what occurred and have noted the very considerable steps taken by a relatively small company to deal with the consequences of this accident, both for its other employees and for Mr Randle's family. I have concluded that in the circumstances of this defendant, a further discount of 12%, should flow from those steps.

22 It follows that the final penalty to be imposed, after a discount of 37% is $94,500.

Orders

23 I find the defendant guilty of the offence charged and enter a conviction accordingly. The defendant is ordered to pay a penalty of $94,500, with a moiety to the prosecutor. The defendant is also ordered to pay the prosecutor's costs, as agreed or assessed in accordance with the Court's Rules.

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LAST UPDATED: 27/02/2004