Inspector Simpson v Tomago Aluminium [2005] NSWIRComm 117 (15 April 2005)

Last Updated: 20 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Simpson v Tomago Aluminium [2005] NSWIRComm 117

FILE NUMBER(S): IRC 1408

HEARING DATE(S): 04/03/2005

DECISION DATE: 15/04/2005

PARTIES:

PROSECUTOR

Inspector Neil Simpson

DEFENDANT

Tomago Aluminium Company Pty Limited

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Ms L McManus of counsel

Solicitor: Ms A Devasia

WorkCover Authority of NSW

DEFENDANT

Mr H Dixon of senior counsel

Solicitor: Mr T Saunders

Allens Arthur Robinson

CASES CITED: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29

Department of Mineral Resources of NSW (McKensey) v Kembla Coal & v Coke (1999) 92 IR 8

Haynes & Callaghan v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455

Inspector Woodington v Thiess Services Pty Ltd [2004] NSWIRComm 20

Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464

Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61

R v Thomson; R v Houlton (2000) 49 NSWLR 383

Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143

WorkCover Authority (Inspector Riley) v Broken Hill Pty Co Ltd (1998) 83 IR 427

WorkCover Authority (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23

WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383

WorkCover Authority of New South Wales v TRW Steering & Suspension Australia Ltd [2001] NSWIRComm 52

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Occupational Health and Safety Act 2000

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Boland J

Friday 15 April 2005

Matter No IRC 1408 of 2004

INSPECTOR NEIL SIMPSON V TOMAGO ALUMINIUM COMPANY PTY LIMITED

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2005] NSWIRComm 117

1 Tomago Aluminium Company Pty Limited ("the defendant") is located north of Newcastle and, as its name suggests, is engaged in the production of aluminium. The defendant currently employs approximately 1,000 employees and utilises the services provided by a large number of local contractors. It is one of the largest employers in the Newcastle/Hunter region.

2 Murray Archibald Ingram was an employee of the defendant. He was engaged as a shipping operator in the Cast House where four types of aluminium products – small ingots, tee ingots, billets and slabs – are produced in a range of configurations. His role required him to use a 16 tonne forklift truck to transport finished product from the stacking area to a storage area located outside the Cast House.

3 On 10 June 2002 Mr Ingram entered the stacking area on foot to read identification numbers he required on some ingot stacks. As he did so an automatic stacking crane or manipulator started to move towards him and pinned him against a conveyor. As a result of the accident Mr Ingram suffered severe bruising and grazing to his stomach, lower abdomen, left and right hips, lower back and right buttock. He later had an operation to drain fluid from his stomach and abdomen and to remove necrotic (dead) skin.

4 The defendant was charged with an offence under s 8(1) of the Occupational Health and Safety Act 2000. That section provides:

8 Duties of employers

(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

5 The offence with which the defendant was charged was that:

On 10 June 2002 at Tomago Road, Tomago in the State of New South Wales, the defendant, being an employer, failed to ensure the health safety and welfare at work of all its employees, in particular Murray Archibald Ingram.

The particulars of the charge are:

(a) At all material times the defendant employed a number of persons including Murray Archibald Ingram, William John Elphick, Peter Denis Aoake, Scott Andrew Lynch, Allan Lindsay Robertson, Neil Francis Beacher, Robert James Withers.

(b) At all material times the defendant conducted an aluminium smelting operation which involved casting liquid aluminium into remelt ingot and tee, extrusion billet and rolling slab for domestic markets.

(c) At all material times Ingram was at work on the defendant's premises at Tomago Road, Tomago, New South Wales.

(d) The defendant failed to provide a workplace that was safe and without risk to employees in that Ingram was able to gain access to an area where an automated device known as a manipulator operated.

(e) As a result of the said failures, Ingram was placed at risk of injury and suffered actual injuries.

6 The defendant pleaded guilty to the charge.

7 The prosecutor tendered an agreed statement of facts. The statement had annexed to it the defendant's standard operating procedure for product handling, storage and loading that was applicable to Mr Ingram's role as a shipping operator (SOP 40). Also tendered by the prosecutor was a factual inspection report by Inspector Simpson dated 19 June 2002, 15 colour photographs showing the Cast House, the site of the accident, machinery associated with the accident and various signage. There was also a sketch (not to scale) of the accident site and the defendant's record of prior convictions, which showed three prior convictions.

8 The agreed statement of facts described the operation of stacking, removal and storage of ingots as follows:

Small ingots are produced on four ingot chains, while tee ingots, billets and slabs are produced in three vertical casting pits. Once the small ingots have been produced, they are stacked into groups and transported on a chain (conveyor) to an ingot stacking area. Approximately 5 metres before the end of the conveyor each stack of ingots is weighed, bound with plastic straps and labelled by an automated machine. The stack of ingots is then transported on the conveyor to the stacking area.

On 10 June 2002 the usual procedure for the removal and storage of ingot stacks from the end of the conveyor located inside the stacking area to Ingot Casting Chain No. 5 (Ingot Chain No 5) was as follows:

(a) a device known as a manipulator or automatic stacking crane was activated when ingot stacks passed photoelectric sensors attached to the conveyor system;

(b) the manipulator would move stacks of ingots off the conveyor and stack them into one of three stacking bays:

(i) stacking area east bay;

(ii) stacking area west bay; or

(iii) defective stacking bay.

(c) once the manipulator had moved 18 stacks of ingots into either the stacking area east bay or the stacking area west bay, the boom gate at the entrance to that bay would automatically be raised and the light at the entrance to that bay would turn green; and

(d) once the light was green and the boom gate was raised for that bay, an operator could enter that bay in a forklift truck to remove the stacks while the manipulator loaded the next bay.

...

At all material times the stacking area to Ingot Chain No. 5 was bordered by a handrail approximately 900mm high on the eastern and western sides and by a set of boom gates approximately 900mm high on the northern and southern sides. The eastern side also had a self-closing swing gate approximately 1.5m away from where the manipulator operated, which at all material times was closed.

The stacking area to each of the three ingot chains had warning signs permanently attached on all four sides. The signs read:

"Entry Prohibited. Stack Handling Equipment Operates Automatically"

9 The agreed statement then described how the accident occurred:

At about 12.30pm on 10 June 2002 Mr Ingram parked his forklift truck at the northern end of the stacking area east bay of Ingot Chain No. 5. At that time 16 stacks of ingots had been loaded by the manipulator into stacking area east bay. The manipulator still had to load a further two stacks of ingots into that bay in order for it to be full. Mr Ingram proceeded to write down on a diagram known as a mud map most of the identification numbers from the 16 stacks of ingots which had been loaded by the manipulator into stacking area east bay.

Mr Ingram then noticed that Ingot Chain No. 5 did not seem to be operating, since no ingot stacks were coming through on the conveyor. He also noticed, in the area opposite to where he was working, some yellow hats of maintenance staff. On the basis of this information Mr Ingram assumed that Ingot Chain No. 5 was not operating and had been shut down for maintenance. He then decided to enter the stacking area in order to record the identification numbers located on the ingot stacks for which he did not already have identification numbers.

He entered the stacking area on foot through the swing gate. A warning sign was attached to the swing gate through which Mr Ingram entered the stacking area. This sign read:

"Danger, Isolate Manipulator Before Entry"

Mr Ingram could not read the identification numbers he required on the ingot stacks from his position just inside the swing gate so he walked between the manipulator and the conveyor in order to get a better view.

As he did so the manipulator started to move towards him and the western leg of the grab of the manipulator and pinned him against the conveyor. Once the manipulator passed over Mr Ingram he fell to the ground and then went to get help.

10 The safety measures in place at the time of the accident were described in the agreed statement as follows:

At the time of the accident entry to a bay for the removal and storage of ingot stacks was governed by the defendant's Standard Operating Procedure 40 ("SOP 40") which contained the following precaution:

"Do not enter automatic stacking area until green light is on for the bay to be emptied."

At the time of the accident the manipulator was fitted with interlocks so that the manipulator would shut down if a boom gate to the entrance to the bay in which the manipulator was working was opened. The manipulator was also programmed so that it could not go into a stacking bay when the green light was on for that bay and the boom gate was in the upright position. However, at the time of the accident there was no interlocking system between the manipulator and the swing gate through which Mr Ingram gained access to the stacking area. The manipulator therefore did not shut down when Mr Ingram entered the stacking area on foot through the eastern swing gate.

11 Following the accident the defendant made a number of changes to each of the three ingot chains in the Cast House:

(a) the gate through which Mr Ingram entered the stacking area of Ingot Chain No. 5 has been removed in each of the ingot chains;

(b) the eastern and western perimeter fences to the stacking areas have been replaced by 1.8 metre high mesh fences;

(c) a 1.8 metre high mesh fence has been erected between the east and west stacking bays;

(d) light curtains have been installed across the openings created by the boom gates when they are raised;

(e) a light curtain has been installed across the rear of each stacking bay and the defective stack bay;

(f) wire pull emergency stop lanyards have been installed in the saleable product bays;

(g) emergency stop buttons have been installed in the scrap bay;

(h) a visual indicator has been installed on the manipulator to indicate when it is in motion;

(i) the boom gates have been extended so that there is no gap through which access could be gained to the stacking area ;

(j) SOP 40 has been amended in light of the capital improvements set out in (a) to (j) above. The defendant's employees have been trained in relation to the revised SOP 40.

12 For the defendant the affidavit of John Griffith Chomley was read. Mr Chomley is a manager with the defendant and at the time of the accident was Cast House Operations Leader. Mr Chomley described in detail the defendant's operations and Mr Ingram's experience, qualifications and training (he had been in the role of shipping operator since 1984). It is apparent Mr Ingram had received extensive training in his work role and in safety procedures.

13 Mr Chomley also described the circumstances of the accident. In that respect he stated in his affidavit:

The manipulator is programmed to move a stack of ingots into the defective stacking area if the stack does not meet the required height and weight specifications.

If a stack of ingots is not defective, it is moved by the manipulator into either ingot stacking area east bay or ingot stacking area west bay. The manipulator is programmed to move 18 stacks of non-defective ingots into the ingot stacking area east bay and then to move the same number of stacks into the ingot stacking area west bay.

Each of these three stacking areas has a boom gate at its entrance and a warning light which is red when the boom gate is down and green when the boom gate is raised. The purpose of the light and the boom gate is to warn employees against entering a stacking bay when the warning light is red and the boom gate is down. Employees are permitted to enter a stacking bay when the warning light is green and the boom gate is in the upright position, during which time the manipulator is programmed so that it cannot enter that stacking bay. Employees in the Cast House are aware of these procedures from their training ...

The boom gate remains down and the warning light remains red in a particular bay when the manipulator is moving ingot stacks in that bay. The manipulator is fitted with interlocking systems so that it will shut down if a boom gate to the bay in which it is operating is raised. Once the manipulator has filled the bay in which it has been working, the boom gate to the entrance to that bay goes up and the light for that bay turns green.

The manipulator is programmed so that it cannot enter a bay when the light for that bay is green and the boom gate is in the upright position. Accordingly, employees can safely drive a forklift into a bay for which the light is green and the boom gate is in the upright position, even though the manipulator may be moving stacks of ingots in an adjoining fenced-off stacking area of the same ingot chain at that time.

Once a stacking bay has been filled with a full set of 18 stacks of ingots, the light for that bay is green and the boom gate is in the upright position, a Shipping Operator uses a 15 tonne forklift truck to transport the 18 stacks of ingots from the stacking bay to a storage area located outside the Cast House ...

...

A Shipping Operator must prepare a diagram which is known as a "mud map" for each full bay of ingot stacks (ie 18 stacks of ingots) that he transports to the storage area. The Shipping Operator writes on the "mud map" the details of each stack, as shown on the label attached to the stack. The Shipping Operator may complete the required information on the "mud map" at any of the following times:

(a) while the stacks of ingots are still in the stacking bay, provided that he remains outside the stacking area while he records the required information;

(b) after the ingot stacks have been removed from the stacking bay but before they are transported to the storage area; or

(c) once he has transported the ingots stacks to the storage area.

At the time of the accident (10 June 2002) Tomago had a Standard Operating Procedure (SOP 40) in relation to product handling, storage and loading in the Cast House. ... One of the precautions on page 3 of SOP 40 states:

"Do not enter automatic stacking area until green light is on for the bay to be emptied."

Prior to the accident Mr Ingram received training in SOP 40 as part of his competency based training and assessment.

At the time of the accident there were a number of warning signs around the perimeter of the stacking area for each ingot chain. The warning on these signs is as follows:

"Entry Prohibited. Stack Handling Equipment Operates Automatically."

At the time of the accident there was a gate on the eastern perimeter of the stacking area for ingot chain 5. The warning on this gate is as follows:

"Danger Isolate Manipulator Before Entry"

At the time of the accident the isolation switch control panels and isolation instructions were located on the southern perimeter of the stacking area of ingot chain 5. Isolating the manipulator was a simple process. Mr Ingram's training equipped him to carry out this task if required. ...

On 10 June 2002 Mr Ingram accessed the stacking area of ingot chain 5 ... At that time the boom gate was down and the warning light was red in the ingot stacking area east bay. Mr Ingram did not isolate the manipulator before accessing the stacking area nor did he check to see whether a danger tag had been placed on the isolator control panels, which would have been the case if another employee had isolated the manipulator or if maintenance employees had cut the power to the manipulator in order to undertake maintenance work. Mr Ingram was trained to follow these standard procedures.

After walking through the gate and into the ingot stacking area, Mr Ingram attempted to pass between the manipulator and the stacking conveyor and was temporarily pinned between the manipulator and the conveyor. As a result, Mr Ingram suffered the injuries described in these proceedings.

Because Mr Ingram failed to make the stacking area safe by isolating the manipulator before entering the area, he was given a final written warning. Mr Ingram admitted to Tomago that had he stopped and thought about the matter and complied with the training which he had been given, he would not have entered the area as he did. He ignored the training which he had received in relation to the proper procedure for entry into stacking areas, the requirement to isolate live equipment and the clear warning signs on both the gate through which he entered the stacking area and on the perimeter fence of the stacking area.

Prior to the accident Mr Ingram had not received any warnings in relation to non-compliance with SOPs or failure to isolate equipment or follow warning signs. In light of Mr Ingram's experience, prior record and the extensive training which he had been given, there was no reason to believe that Mr Ingram would act the way he did at the time of the accident.

Mr Ingram has recovered from his injuries and continues to be employed by Tomago on a full time basis.

14 Mr Chomley went on in his affidavit to describe the extensive changes made both in respect of safety procedures and training and to the operation of the machinery following the accident as described earlier. The cost of the capital improvements was $501,000.

15 Evidence was also given by Mr Chomley regarding the defendant's corporate citizenship, which indicated a strong involvement in supporting the local community and in providing support to its employees and their immediate families.

16 I also note that the defendant assisted Mr Ingram with his rehabilitation and Mr Ingram eventually resumed his normal duties on a full time basis. The defendant has expressed contrition in respect of the injury suffered by Mr Ingram.

Consideration

17 The primary consideration in proceedings relating to penalty under the Occupational Health and Safety Act is the objective seriousness of the offence, which involves an objective assessment of the nature and quality of the offence. Subjective factors, that is, factors peculiar to the offender, play a subsidiary role in the determination of penalty: Lawrenson Diecasting Pty Limited v WorkCover (1999) 90 IR 464 at 474. Apart from the well-settled principles applicable to sentencing in this jurisdiction, regard must also be had to the Crimes (Sentencing Procedure) Act 1999 ("CSP Act" - see sections 3A, 21A, 22, 22A and 23): Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61 at [13].

18 In considering the objective seriousness of the offence the Court will usually consider, amongst other relevant matters peculiar to the facts of the particular offence, three questions:

1 Whether the risk to health and safety that has been proven against the defendant was known to the defendant or was obvious or reasonably foreseeable and, if so, whether the defendant took steps to either eliminate the risk, prevent persons being exposed to the risk or mitigate the risk. If the risk was known, obvious or foreseeable and no steps were taken to eliminate or ameliorate the risk or to ensure that employees were not exposed to the risk to safety, the offence may be considered to be more serious than otherwise might be the case: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [81]-[82]; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 at [87]; Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297 at [104].

2 Whether there were feasible measures available to eliminate or prevent exposure to the risk and, if so, whether the defendant implemented such measures. Failure to implement available measures may, again, support a conclusion that the offence is to be judged more serious than it otherwise might have been: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting at 476, (Inspector Ankucic) v McDonalds Australia Ltd (2000) 95 IR 383 at 450.

3 Whilst the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty, whether the occurrence of death or serious injury manifests the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [31]-[33] and the cases referred to therein.

19 Particular aggravating factors that may be taken into account include: that the offender has a record of previous convictions (s 21A(2)(d) of CSP Act); and, the offence was committed without regard for public safety(s 21A(2)(i) of CSP Act).

20 In addition to the factors relating to the offence the Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the offender from re-offending. In Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71] to [80] the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant. The propensity to re-offend must be considered when determining the weight, if any, to be attached to specific deterrence.

21 Relevant subjective factors prescribed by s 21A(3) of the CSP Act may include: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial; (e) the offender does not have any record (or any significant record) of previous convictions; (f) the offender was a person of good character (see also McDonalds v (Inspector Ankucic) (2000) 95 IR 383 at 454); (h) the offender has good prospects of rehabilitation; (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner (see also McDonalds at 429); (k) a plea of guilty by the offender (see also R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418); and, (n) assistance by the offender to law enforcement authorities (see also McDonalds at 429).

22 In addition, the Court may consider the means of the defendant and the nature of the corporate defendant (e.g., whether it is a large corporation operating in an inherently dangerous industry or a small "one man" company: see, for example, Capral Aluminium at [77]; Haynes & Callaghan v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 at 457.

23 A fundamental consideration in assessing penalty will be the maximum penalty for the relevant offence. The penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699.

24 Turning to the offence in this case, I am unable to come to the view that it was objectively serious to the degree that I should impose a heavy penalty. The circumstances in which the offence occurred, and which the defendant relied upon, included the following:

1 The defendant was a large corporation and obviously one that took its responsibilities for the health and safety of workers, seriously. Its pre-accident policies and practices and systems of work support that conclusion: see Department of Mineral Resources of NSW (McKensey) v Kembla Coal & v Coke (1999) 92 IR 8 at 25; Warman International Ltd v WorkCover Authority of New South Wales (1998) IR 326; WorkCover Authority (Inspector Riley) v Broken Hill Pty Co Ltd (1998) 83 IR 427 at 429; and WorkCover Authority (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at 34.

2 The offence with which the defendant was charged was a relatively narrow one in that it was alleged the defendant "failed to provide a workplace that was safe and without risk to employees in that Mr Ingram was able to gain access to an area where an automated device known as a 'manipulator' operated." The charge did not relate to the defendant's system of work, which, in the main, was sound.

3 At the time of the accident, Mr Ingram had more than 18 years experience working in the Cast House.

4 Mr Ingram was employed in a position of responsibility and possessed good literary skills.

5 Mr Ingram had been provided with extensive competency and safety based training by the defendant including in relation to:

(a) the proper procedure for entry into stacking areas;

(b) the fact that the stacking equipment works automatically;

(c) isolation procedures, in particular the use of danger tags and the assumption that all equipment must be regarded as "live" until proven "dead"; and

(d) the requirement to follow Standard Operating Procedures.

6 There were in place extensive measures aimed at eliminating risks to Mr Ingram when working in the area including the following:

(a) the operations within the loading area were fully automated, removing the need for employees to be near or in the vicinity of the stacking process;

(b) the stacking area was surrounded by perimeter fencing and boom gates;

(c) each of the three stacking areas has a boom gate at its entrance and a warning light which is red when the boom gate is down and green when the boom gate is raised. The purpose of the light and the boom gate is to warn employees against entering a stacking bay when the warning light is red and the boom gate is down. Employees are permitted to enter a stacking bay only when the warning light is green and the boom gate is in the upright position, during which time the manipulator is programmed so that it cannot enter that stacking bay;

(d) employees in the Cast House were aware of these procedures from their training;

(e) the boom gate remains down and the warning light remains red in a particular bay when the manipulator is moving ingot stacks in that bay. The manipulator is fitted with interlocking systems so that it will shut down if a boom gate to the bay in which it is operating is raised. Once the manipulator has filled the bay in which it has been working, the boom gate to the entrance to that bay is able to be raised up and, when it does so the light for that bay turns green;

(f) the manipulator is programmed so that it cannot enter a bay when the light for that bay is green and the boom gate is in the upright position. Accordingly, employees can safely drive a forklift into a bay for which the light is green and the boom gate is in the upright position, even though the manipulator may be moving stacks of ingots in an adjoining fenced-off stacking area of the same ingot chain at that time;

(g) the manipulator would shut down if a boom gate to the bay in which it was operating was raised;

(h) there were numerous warning signs around the perimeter fencing of the stacking area prohibiting entry;

(i) there was a warning sign on the gate through which Mr Ingram gained access to the stacking area warning against entry without prior isolation;

(j) the defendant had developed a written SOP which specifically addressed the requirement not to enter the stacking area "until the green light is on for the bay to be emptied" (SOP 40);

(k) employees (including Mr Ingram) were provided with extensive safety and competency based training in a wide range of areas, including:

(i) SOP 40;

(ii) isolation procedures, in particular the use of danger tags and the assumption that all equipment must be regarded as "live" until proven "dead";

(iii) the fact that the stacking equipment works automatically; and

(iv) the system described above.

25 I accept the evidence that there was no operational need for Mr Ingram to be in the fenced off area and that doing so for the purpose of recording numbers located on ingots was contrary to instruction and his training. This is a matter that must mitigate the seriousness of the offence. After the accident Mr Ingram admitted to the defendant that if he had stopped and thought about the matter and complied with the training that he had been given, he would not have entered the area as he did.

26 It was submitted for the defendant that it had no reason to believe that given the safety procedures in place that Mr Ingram, a fully trained, reliable and experienced employee in a position of responsibility, would act contrary to and in disregard for its procedures and his training and gain access to the relevant area. It was submitted that

[T]he defendant did not foresee (and there is no basis for saying that it should have foreseen) the risk of Mr Ingram, having entered the area, placing himself in a relatively narrow gap (280mm) between the stacker and the conveyor system. There was no requirement or valid reason for him to do so. As a result, even if he gained access (contrary to the warnings) he would not necessarily be exposed to risk in circumstances where the isolator was not operating. The risk only arose from the unusual actions of Mr Ingram in placing himself in the narrow gap.

27 Whilst the risk arose from the unusual actions of Mr Ingram, I do not accept that the risk was completely unforeseeable. An operator on foot could gain entry into the danger area even though the light was red and the boom gate was closed. There was no interlocking system between the manipulator and the swing gate. The manipulator did not shut down when Mr Ingram entered the stacking area on foot through the eastern swing gate. Despite the fact that the defendant was not advised by WorkCover in 1992 (when an Inspector inspected the relevant area and issued a number of improvement notices in relation to gaps in safety arrangements) that the gate through which Mr Ingram gained access to the stacking area be removed or interlocked to the manipulator, the gate was a reasonably foreseeable weak link in the safety system associated with the operation of the manipulator when considered against the requirements of the Act. In that respect, in Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 the Full Bench stated:

Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing.

28 It cannot be assumed that because a worker, even an experienced one, has received extensive training and instruction in relation to safety procedures that such training and instruction cancels out any possibility that he or she will not place themselves at risk in relation to a dangerous piece of machinery that is not guarded to the maximum possible degree. Workers may act foolishly, as demonstrated in cases such as WorkCover v TRW Steering & Suspension Australia Ltd [2001] NSWIRComm 52 at [13] and Inspector Woodington v Thiess Services Pty Ltd [2004] NSWIRComm 20 at [70]. That is why the obligations on an employer under the Act require that employer to actively search out and, where it is at all possible, eliminate any risk to health and safety.

29 Whilst the remedial measures introduced by the defendant following the accident could not be described as simple, straightforward and inexpensive, it was not contended for the defendant that it was impracticable to implement the measures. If, as I have found, the risk was reasonably foreseeable there were measures available to overcome the risk.

30 In so far as the injuries to Mr Ingram are concerned, he suffered severe bruising and grazing to his stomach, lower abdomen, hips, lower back and right buttock. He later had an operation to drain fluid and remove dead skin. Mr Ingram was able to return to full time employment as a shipping operator. Whilst the injuries to Mr Ingram might not be described as serious, it seems to me they could have been worse and I am bound to take this into account in determining the level of seriousness of the offence.

31 In relation to specific deterrence, I accept in large measure the defendant's submission that this is not a case which calls for the imposition of some additional specific punishment aimed at deterring the defendant from further offending against the Act and/or for the purpose of compelling the defendant’s attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. The defendant has a relatively good record in a large and complex undertaking and has taken appropriate steps to avoid a re-occurrence of the offence. However, the defendant continues to operate in an industry that could hardly be described as benign in terms of the possibility of risks to health and safety. Accordingly a small element of the penalty is in consideration of the need for specific deterrence.

32 As to general deterrence, I consider it is appropriate to draw attention to the need for employers operating large plants containing complex machinery to be constantly vigilant of the need to ensure that workers are not exposed to risks to their health and safety. I have, therefore, included an element in the penalty for general deterrence.

33 The relevant subjective considerations include an early plea of guilty for which I grant a discount on the penalty of 25 per cent, cooperation by the defendant with the WorkCover Authority in its investigation of the accident, the remedial measures implemented by the defendant following the accident, the defendant's good corporate citizenship and the defendant's obvious strong commitment to occupational health and safety.

34 The maximum penalty in this case is $825,000 given the defendant's prior convictions. The prosecutor made no submissions to the effect the prior convictions should be considered to be an aggravating feature.

35 I consider an appropriate penalty in this case is $120,000. That amount is discounted by the 25 per cent for the early guilty plea and by a further 10 per cent for other subjective factors, resulting in a fine of $78,000. The defendant will pay a moiety to the prosecutor.

36 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 $78,000 with a moiety 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: 18/04/2005