Inspector Batty v Vehicle Inspection Systems Pty Ltd [2004] NSWIRComm 19 (27 February 2004)

Last Updated: 4 March 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Batty v Vehicle Inspection Systems Pty Ltd [2004] NSWIRComm 19

FILE NUMBER(S): IRC 4325 and 4330

HEARING DATE(S): 03/02/2004

DECISION DATE: 27/02/2004

PARTIES:

PROSECUTOR:

Inspector Batty

DEFENDANT:

Vehicle Inspection Systems Pty Ltd

(ACN 061 444 880)

JUDGMENT OF: Schmidt J

LEGAL REPRESENTATIVES

PROSECUTOR:

Ms PE McDonald of counsel

SOLICITORS:

Legal Services Branch

WorkCover Authority of New South Wales

DEFENDANT:

Mr DR Pritchard of counsel

SOLICITORS:

Marsdens Law Group

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:

- 16 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Schmidt J

DATE: 27 February 2004

MATTER NUMBER IRC 4325 OF 2002

INSPECTOR BATTY v VEHICLE INSPECTION SYSTEMS PTY LTD

Prosecution under s18(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 4330 OF 2002

INSPECTOR BATTY v VEHICLE INSPECTION SYSTEMS PTY LTD

Prosecution under s18(1) of the Occupational Health and Safety Act 1983

JUDGMENT

1 The defendant has pleaded guilty to two charges brought under s18 of the Occupational Health and Safety Act 1983 ('the Act'). The charges arose out of an accident on 24 August 2000, involving Mr Craig Randle, an employee of J.T. Fossey (Trucks) Pty Ltd. Mr Randle sustained fatal injuries when he was crushed by an hydraulic jack located on a vehicle inspection system manufactured and supplied by the defendant. The offences charged were:

MATTER NUMBER IRC 4325 OF 2002

FAILED TO

Ensure that a Vehicle Inspection System ("the plant") that they manufactured in the course of it's business for use by persons at work failed to ensure that the plant was safe and without risks to health when properly used contrary to Section 18(1) of the Occupational Health and Safety Act 1983.

In particular the second defendant (sic):

a) Failed to ensure that the switches on the spotlight which controlled the operation of the jack of the plant did not protrude from the casing of the spotlight.

b) Failed to ensure that the spotlight was not placed on a operating surface as indicated by the warning label attached to the casing the spotlight.

c) Failed to ensure that switches for the operation of the jack and shaker plates of the plant would not accidentally operate the plant, particularly the said jack.

d) Failed to ensure that the switches for the operation of the jack and shaker plates of the plant would not inadvertently operate the plant, particularly the said jack.

e) Failed to ensure that the switches for the operation of the jack and shaker plates of the plant were shrouded to protect the switches from accidentally operating the plant, particularly the said jack.

f) Failed to ensure that the switches for the operation of the jack and shaker plates of the plant were shrouded to protect the switches from inadvertently operating the plant, particularly the said jack.

MATTER NUMBER IRC 4330 OF 2002

FAILED TO

Ensure that a Vehicle Inspection System ("the plant") that they supplied in the course of it's business for use by persons at work failed to ensure that the plant was safe and without risks to health when properly used contrary to Section 18(1) of the Occupational Health and Safety Act 1983.

In particular the second defendant (sic):

a) Failed to ensure that the switches on the spotlight which controlled the operation of the jack of the plant did not protrude from the casing of the spotlight.

b) Failed to ensure that the spotlight was not placed on a resting surface as indicated by the warning label attached to the casing the spotlight.

c) Failed to ensure that the switches for the operation of the jack and shaker plates of the plant would not accidentally operate the plant, particularly the said jack.

d) Failed to ensure that the switches for the operation of the jack and shaker plates of the plant would not inadvertently operate the plant, particularly the said jack.

e) Failed to ensure that the switches for the operation of the jack and shaker plates of the plant were shrouded to protect the switches from accidentally operating the plant, particularly the said jack.

f) Failed to ensure that the switches for the operation of the jack and shaker plates of the plant were shrouded to protect the switches from inadvertently operating the plant, particularly the said jack.

2 The parties tendered various documents, including an agreed statement of facts. Affidavit evidence was given by Bryn Jones, General Manager of Vehicle Inspection Systems Pty Limited, who was not required from cross examination.

3 The agreed statement 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”) VEHICLE INSPECTION SYSTEMS PTY LTD (ACN: 061 444 880) (“the defendant”) was a company duly incorporated with its registered office at 23 Graham Road, Narellan in the State of New South Wales.

4. During the said dates J T Fossey (Trucks) Pty Limited (“Fossey”) carried on business of providing motor vehicle mechanical services at its premises at 301 Pacific Highway, Hexham.

5. On the said dates the defendant:

a. Carried on the business of manufacture of a vehicle inspection system.

b. Carried on the business of supplier of a vehicle inspection system.

c. The vehicle inspection system was designed, manufactured and supplied to be used in a trade, business or other undertaking.

d. In August 1999 supplied, for reward, Fossey with a vehicle inspection system, serial number CAM: 22913, (“the said plant”).

e. Included in the plant supplied to Fossey was a spotlight which had switches which operated the spotlight/jack/shaker plates of the plant.

f. During the said dates supplied Fossey with the same designed spotlight for use with the plant.

g. Attached to the rear casing of the spotlight was a warning label that the spotlight should not be placed with its front glass section on a surface.

6. On 24 August 2000 Fossey employed Craig John Randle as a motor mechanic and on that day he was carrying out his employment as a motor mechanic/supervisor for Fossey.

7. At about 7.10pm on 24 August 2000, Craig John Randle, whilst carrying out his employment as a motor vehicle mechanic sustained fatal injuries when he was crushed between an uprising hydraulic jack of the plant and the tail shaft of a truck on which he was servicing, namely, by testing and adjusting the brakes of vehicle registration Queensland number 980FHC.

24 August 2000

8. 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 Fossey for a pre arranged mechanical service of the vehicle. This vehicle had a single rear axle and dual wheels.

9. Mr Maher booked the vehicle in for the required service. The mechanical service of this vehicle by the Fossey was to be performed on 24 August 2000. A brake test was required to be undertaken on the vehicle.

10. At approximately 6.40pm on 24 August 2000 Mr Randle and another employee of Fossey 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.

11. 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. Shortly after Mr Martin observed Mr Randle return to the vehicle. Mr Randle then positioned himself underneath the vehicle to apparently adjust the brakes on the rear wheels. The plant was on. Mr Randle had with him or placed nearby the spotlight that was attached to the plant. The purpose of having the spotlight with him whilst underneath the truck was apparently to aid his vision during the adjustment of the rear brakes. 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.

12. 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 thereby causing Mr Randle to be entrapped between the jack and the tail shaft of the vehicle he was working on. From this he suffered major injuries which caused his death.

13. The prosecutor asserts that the risk of the jack switch depressing accidentally or inadvertently could arise in circumstances where 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.

14. 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.

15. After Mr Martin called for assistance he climbed underneath the truck and retrieved the spotlight and released Mr Randle from the entrapment by depressing the switch to bring the jack down. Mr Randle was observed to have large volumes 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.

Factual Inspection by Inspector Batty on 25 August 2000.

16. On 25 August 2000 the Prosecutor Inspector Batty attended the premises of Fossey 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.

17. 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.

18. 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.

19. 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.

20. 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 labeling which had inscribed thereon: CAM: 22913 (Serial Number) and details of the manufacturer, namely, the second defendant (sic).

21. 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.

22. 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.

23. 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.

24. 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 the second defendant (sic) was that the spotlight should be placed with the switches that operated the spotlight, jack and shaker plates should be placed directly on the surface. Thus, the spotlight would be supported by the switches and with slight pressure the jack and or shaker plates could be operated accidentally or inadvertently.

25. 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 two (2) sets of two (2) push 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 were 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.

26. The connecting plug of the spotlight had affixed to its surface an adhesive inspection tag of the second defendant (sic) that identified it as having been tested by AO on 2 July 2000.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

The Spotlight

32. On 31 August 2000 the Prosecutor, Inspector Batty attended the premises of Fossey 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.

33. 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.

34. The spotlight had a warning cast into its rear casing, that is where the switches were located, which stated that the spotlight should not be placed face down, that is with the glass face on the ground. The direction from the defendant was that the spotlight should be placed with the switches being placed on the surface. Thus, the spotlight would be supported by the switches and with slight pressure the jack and or shaker plates could be operated accidentally or inadvertently.

35. 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 the defendant by placing the jack and shaker plate switches on the outside and rewiring them to make them compatible to the defendant’s 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.

36. Since Fossey 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 the defendant. 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.

37. 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 Fossey’s 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.

Australian Standards

38. The manufacturers and suppliers, of vehicle inspection systems for use at work are required to have regard to the requirements of a number of Standards in relation to equipment with spotlight, jack, shaker plate switcher/controls. These Standards include:

1. The Australian Standard 1418.1-1994 “Cranes (including hoists and winches) Part 1: General Requirements” states, inter alia, at Clause 8.7.2.2., each pendant control station shall comply with the following requirements:

"Push Buttons shall be of such shape and arrangements as will enable ready and convenient operation of each button and obviate inadvertent operation of, or damage to, the button".

2. Australian/New Zealand Standard 1418.9-1996 “Cranes (including hoists and winches) Part 9: Vehicle hoists” which states at Clause 2.15.13 (b) that controls to “Be located so as not to place the operator in a hazardous situation” and at Clause 2.15.13(c) it states that controls are to “Be located so that it shall not be Inadvertently operated”.

3. Australian Standard 4024.1-1996 “Safeguarding of machinery – Part 1: General principles” where at Clause 6.3 it states “Start controls shall be shrouded, gated or so positioned that they cannot be operated inadvertently”.

39. Following the accident the defendant revised its design and manufacture of the plant for use by persons at work to ensure that the plant was safe and without risks to health when properly used. The defendant modified the spotlight by manufacturing and fitting an aluminium shroud around the jack and shaker plate switches to prevent inadvertent or accidental operation. In addition the trigger mechanism on the modified spotlight was configured in such a way that the effective operation of the jack and shaker plates was obtained by depressing the trigger at the same time as the respective operational switch was depressed.

4 The maximum penalty for this first offence was $550,000. The case advanced for the prosecution by Ms McDonald of counsel was that both general and specific deterrence had a role to play in the penalty imposed for this offence. That the defendant continues to operate its manufacturing and supply business was said to be relevant to this conclusion, as was the evidence that its business was expanding and that it had competitors in this industry.

5 The nature and seriousness of the offence was argued to have been demonstrated to have been serious, given the evidence. The risk of injury was obvious, reasonably foreseeable and likely to have resulted in death or serious injury. Inadvertent operation of the jack had been identified by applicable Australian Standards as an issue to be taken into account by manufacturers. An examination of the spotlight showed that light downward pressure on the switches would cause the shaker plates and jack to activate and that there were written instructions on the spotlight, directing that it should not be placed face down. The resulting risk was foreseen by a rival manufacturer, who had recessed the operational switches, to address the risk present. It was also submitted that manufacturers and suppliers, like employers, were required by the Act to be proactive in ensuring safety in workplaces.

6 The fact that Mr Randle had suffered serious crushing injuries which resulted in his death, was submitted to have confirmed the serious nature and quality of this offence. The foreseeability of this possibility also highlighted its seriousness, as did the simple steps available to the defendant to have prevented inadvertent or accidental operation of the switches.

7 It was acknowledged that various subjective features entitled the defendant to a discount, but it was argued that the maximum discount of 25%, available for utilitarian savings upon the entry of an early plea, was not here available, given that the plea was only entered on the first day of a five-day hearing.

8 As to parity, it was submitted that consideration would be given to the culpability of the employer of Mr Randle for the events which had occurred. It was put, however, that direct comparisons were difficulty to make, given that these prosecutions were brought under s18 of the Act, in relation to steps taken prior to the accident and the prosecution brought against the employer under s15, related to later and wider circumstances. They included the system of work in operation, including aspects such as training and supervision, although it was acknowledged that the employer had undoubtedly relied upon this defendant's expertise in the manufacture of the plant in question.

9 The case advanced for the defendant by Mr Pritchard of counsel, was that in considering discount, the Court would have regard to the circumstances in which the plea was entered, when on the day preceding the hearing, an agreement was reached that four of six prosecutions initiated would not be pursued. The discussions about a plea being entered had commenced some time before the hearing, with final agreement reached on the last day of the week preceding the hearing, which resulted in a five-day hearing being avoided and witnesses not being required.

10 It was submitted that the Court would take account of the utilitarian savings which had flowed from the entry of the plea, as a result.

11 As to the nature and seriousness of the offence, it was submitted that account would be taken of the instruction and training which the defendant had provided to nominated employees of Mr Randle's employer. Mr Randle had not been one of those trained and hence was not authorised to operate the equipment in question. While it was acknowledged that there were design problems with the spotlight in question, it was emphasised that there had been no other difficulties in the operation of the 50 other such units which the defendant had supplied to its customers.

12 The defendant had been licensed by the RTA to manufacture the equipment. It was relevant that adherence to its training in proper operation of the equipment, would have precluded the accident. The cause of the accident had not been established at the Coronial inquiry into Mr Randle's death, nor had it been the subject of agreement between the parties. It had not otherwise been explored in these proceedings. The prosecution's assertions as to the likely cause of death had not been established. It followed, so it was argued, that the offence to which the defendant had pleaded had not been shown to be causally connected with Mr Randle's death. This was submitted to be a relevant consideration in determining penalty.

13 It was also submitted that account would be taken of the steps taken by the defendant after the accident to address the design problems revealed; to alert its other customers to the accident and to voluntarily recall the spotlights supplied to others and at the defendant's cost, to remove the risk in question. This was also submitted to be relevant to the question of specific deterrence, which it was submitted had no role to play in determining penalty, as a result.

14 As to parity, it was accepted that account of the principles in question would have to be taken.

Consideration

15 I am satisfied that the evidence showed that while this was a first offence, the risk to safety in question was serious. The nature and quality of the offence can be determined by the fact that the need to ensure that inadvertent operation of the jack was precluded, had been imposed as a requirement upon manufacturers such as the defendant, by the applicable Australian design standards. The evidence showed that not only had other manufacturers addressed that risk in their designs, the defendant had no difficulty in doing so, after the accident.

16 Given the evidence of the operation of the vehicle inspection equipment here in question, the potential consequence of a failure to ensure inadvertent operation of the jack while a person was working between the jack and a vehicle being inspected, was obvious and plainly, potentially fatal. That the precise cause of the fatal accident was here not established, seems to me to be of little relevance, given the obvious potential consequences of the risk to safety with which these charges are concerned.

17 The evidence of the defendant's approach to training its customers' employees, did not establish that the defect in the design of the plant which the defendant manufactured and supplied to Mr Randle's employer, was thereby addressed. The obligation which the section imposed required the defendant to ensure safety. Its plea to these offences acknowledges that this the defendant failed to do.

18 The result is that a significant penalty must be imposed. I am satisfied that the defendant is entitled to a discount in relation to the utilitarian savings which flowed from the entry of the plea, given that a five day contested hearing was thereby avoided. That the entry of the plea followed immediately upon the dismissal of the four other prosecutions, to that point pressed by the prosecutor, is also a relevant consideration. I am satisfied that a proper discount in all those circumstances is a 20% discount.

19 I am also satisfied that a further 10% discount should flow in respect of the other factors earlier mentioned, including the steps voluntarily taken by the defendant to address the defect which the accident had revealed. This involved the modification of 50 other such units, as the result of a voluntary recall. I am well satisfied that the evidence demonstrated the defendant's real contrition in respect of the fatal consequences of this accident.

20 I am also satisfied that both general and specific deterrence have a role to play in the penalty here to be imposed. The Act does require that manufacturers and suppliers such as the defendant be proactive in respect of the duties imposed upon them by the Act. The Australian design standards which directed attention to the particular risks here in question, but underscored this need. I have taken the view that the need for specific deterrence has been significantly reduced, as the result of the steps taken by the defendant after the accident. There was no suggestion in the prosecution case, that those steps did other than to remove the risk of such an accident arising again, as the result of the design defect here in question. Despite those steps, I have been unable, however, to come to the view that the steps taken afterwards were such as to entirely remove the need for specific deterrence having any role at all to play in the determination of the penalty to be imposed.

21 In fixing penalty, I have also considered the principles underpinning the concept of parity in sentencing, although I do accept Ms McDonald's submission that the circumstances of this offender, compared to those of Mr Randle's employer, against whom a charge was brought under s15 of the Act, make precise comparisons difficult.

22 I have concluded, overall, that the culpability of this defendant is somewhat lower than that of the other defendant, given the serious deficiencies to which it entered a plea and have approached sentencing with that conclusion in mind. Account must also be taken of the fact that two charges brought under s18 have resulted from the same circumstances, supported by identical particulars. In this case, this must undoubtedly result in the imposition of but one penalty, in order to avoid any double counting. (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 the discussion at [74] to [75]).

23 A weighing of all of these various factors has led me to impose a penalty of $145,000. This reflects in part the application of the parity principle earlier discussed, but in a context where questions of this defendant's means to pay a heavy penalty, did not arise in the way I have outlined in the case of Mr Randle's employer. It follows that the penalty to be imposed here, has not been tempered, as a result of the consideration of such a factor. Applying the discount factor of 30% earlier mentioned, results in a final penalty of $101,500.

Orders

24 For all of the reasons given, I find the defendant guilty of the charges and enter convictions accordingly. The defendant is ordered to pay a penalty of $101,500, with a moiety to the prosecutor. The defendant is also ordered to pay the prosecutor's costs, as agreed, or as assessed in accordance with the Court's Rules.

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LAST UPDATED: 27/02/2004