Workcover Authority of New South Wales (Inspector Gregory) v Bluescope Steel Limited formerly known as BHP Steel Limited trading as BHP Steel Limited Lysaght Building Industries [2006] NSWIRComm 14 (13 July 2006)

Last Updated: 13 July 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of New South Wales (Inspector Gregory) v BlueScope Steel Limited formerly known as BHP Steel Limited trading as BHP Steel Limited Lysaght Building Industries [2006] NSWIRComm 14

FILE NUMBER(S): IRC 2885

HEARING DATE(S): 01/02/2006

DECISION DATE: 01/02/2006

PARTIES:

PROSECUTOR:

WorkCover Authority of New South Wales

(Inspector Gregory)

DEFENDANT:

BlueScope Steel Limited formerly known as BHP Steel Limited t/as BHP Steel Limited Lysaght Building Industries

JUDGMENT OF: Staunton J

LEGAL REPRESENTATIVES

PROSECUTION:

Mr J Rodney

SOLICITORS:

Carroll & O'Dea

DEFENDANT:

Mr S Meehan of counsel

Ms K Srdanvic

SOLCITORS:

Blake Dawson Waldron

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

Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464

Markarian v The Queen [2005] HCA 25: 18 May 2005

R v Gallagher (1991) 23 NSWLR 220

R v Way [2004] NSWCCA 131

R v Thomspon

R v Houlton (2000) 49 NSWLR 383

Thorneloe v Filipowski (2001) 52 NSWLR 60

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Occupational Health and Safety Act 2000

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Staunton J

DATE: 1/2/2006

Matter No IRC 2885 of 2005

WorkCover Authority of New South Wales (Inspector Gregory) v BlueScope Steel Limited formerly known as BHP Steel Limited t/as BHP Steel Limited Lysaght Building Industries

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

JUDGMENT

[2006] NSWIRComm 14

1 The defendant, BlueScope Steel Limited, trading as BlueScope Lysaght (BlueScope Lysaght) has entered a plea of guilty to an offence arising under s 8(1) of the Occupational Health and Safety Act 2000.

2 In relation to that offence, it was said that the defendant:

Did fail to ensure the health safety and welfare at work of all its employees, in particular, Kee Fai Leung, contrary to s 8(1) of the Occupational Health and Safety Act 2000.

3 The particulars of that charge are that the defendant:

1. Failed to provide and maintain a safe system of work for transferring deformed coils from the coil carrier car to the mandrel that was safe and without risks to health and which failed to prevent employees from getting into an unsafe position whilst undertaking and observing the fitting process of the coil onto the mandrel;

2. Failed to provide and maintain a safe system of work for selecting coils prior to their use. The Defendant had knowledge that employees were required to fit coils that had deformed centres but had no risk assessment procedure of defined criteria to assess the condition of coils prior to their use that would ensure that using the coils was safe and without risk to health; and

3. Failed to provide and maintain plant, namely a coil carrier car that prevented deformed coils from falling off when transferring deformed coils from the coil carrier car to the mandrels.

4 The prosecution has tendered an agreed statement of facts. With respect to the charge against the defendant, the following facts are agreed:

[1] At all material times BlueScope Steel Limited (formerly known as BHP Steel Limited) trading as BlueScope Lysaght (ACN 000 011 058) (“the Defendant”) was a company duly incorporated with a registered office at Level 11, 120 Collins Street, Melbourne in the State of Victoria.

[2] At all material times the Defendant occupied premises located at Cnr Brunker Road and Anzac Streets, Chullora in the State of New South Wales (“the premises”) where it had, as its undertaking, the manufacturing of rainwater products including rain water guttering (“the undertaking”).

[3] At all material times the Defendant was an employer in the State of New South Wales.

[4] At all material times the Defendant employed Kee Fai Leung as a machine operator level 3 at the premises. As at 5 June 2003 (“the date of the incident”) Mr Leung had been in the Defendant’s employ for about twelve (12) years.

The premises and overview of operations

[5] At the premises there was a building called the Rainwater Goods Bay No. 3 (“No. 3 Bay”) where rainwater goods including guttering were manufactured.

[6] At No. 3 Bay there were five (5) metal forming/shaping machines ("roll former machines"), one of which was used to shape “quad guttering” from coils (the "quad guttering machine"). The quad guttering machines were around ten (10) metres in length and were set up in two (2) production lines, namely "quad gutter high" (which is for coils 280mm wide) and "quad gutter low (which is for coils 260mm wide). The quad guttering machine could only produce quad gutter high or quad gutter low at any one time.

[7] Coils comprise rolls of painted steel product of approximately 0.4mm thickness, of various lengths. A coil can weigh between five hundred (500) and nine hundred (900) kilograms. Coils are delivered to the premises in different colours and in widths of various dimensions. There are approximately twenty-six (26) colours in the Defendant's product offering.

[8] At the No, 3 Bay, there were four (4) coil cars which were used in conjunction with the five (5) metal forming/shaping machines. Coil cars are used to transport coils and are mounted on a dual rail track and identified with the plant number – CC-020. A coil car may be seen in the foreground of photograph 3 of the Agreed Photo Bundle. The top of each coil car is fitted with a V-shaped metal square bed plate which is made from square steel tubing 50 mm x 50 mm spaced approximately 80 mm apart, approximately 1,020 mm from the base of the coil car. Sheet metal coils are placed on the bed plate for transportation.

[9] Directly underneath the square bed plate on each coil car are three (3) hydraulic rams which allowthe operator to raise and lower the coil, which is necessary to place the coils on the hydraulic twin mandrel which is described below.

[10] Coil cars are operated by an electric pendant control which also operates the hydraulic rams. An electric pendant control may be seen in photograph 4 of the Agreed Photo Bundle fixed in its casing on the coil car under the mandrel. The capacity of the bed plate was three (3) tonnes.

[11] At each production line there was a hydraulic twin turnstile/mandrel approximately 3.2 metres apart from the mandrel on the next production line. A mandrel may be seen in the photographs 3 and 4 of the Agreed Photo Bundle. A turnstile may be seen in photograph 7 of the Agreed Photo Bundle. The turnstile enables the mandrel to be rotated 180 degrees.

[12] Each mandrel had three (3) expandable metal face plates approximately 650 mm long and 320 mm wide. Photograph 5 of the Agreed Photo Bundle shows the metal face plate on a mandrel. Each face plate had a bevelled or tapered end lead in area of about 80 mm with a maximum bevel of 6mm. The diameter of the face plates was approximately 480 mm. The face plates were operated by an air valve and a spoked steering wheel situated in the centre of the mandrel between the face plates, approximately 1.42 metres from the floor. Each mandrel was fitted with an emergency stop control which, if activated, cuts the power to the machine. There is also a light beam safety mechanism located at the base of the machine. If the beam is broken, this will also cut power to the machine. The mandrel face plates were designed to expand or contract to allow the operator to fit the metal sheet coil onto the mandrel face plate.

[13] There is a turnstile latch on each of the turnstiles. The function of the latch is to prevent the turnstile from moving when the coil is being loaded onto the mandrel.

[14] The quad guttering machine uses coils that are 260mm wide or 280mm wide. Around ninety percent of coils used in the quad guttering machine are 280mm wide.

The production process

[15] In the No. 3 Bay, the coils are stored vertically on a pallet adjacent to the machines behind a safety rail. The coils will usually have a metal strap across them to secure them. A coil will be "open" when the strap has been removed. Photograph A of the Agreed Photo Bundle shows coils stored on a palette both in the horizontal position with the metal strap still in place and "open" coils stored vertically.

[16] There is a computer terminal in the No. 3 Bay which tells operators how many of each product colour must be produced that day in accordance with customer orders. Operators are then able to select a coil based on the particular product and colour they wish to produce.

[17] Once the coil is selected, the operator uses a pendant operated crane to lift the coil. The operator does this by manually placing a sling through the coil and then lifting the coil using the crane to transfer it onto the coil car. The operator places the coil vertically onto the coil car and the sling is then manually removed. The coil car is then used to transport the coil to the hydraulic twin mandrel. This distance is approximately two (2) metres. The operator operates the coil car by use of a hand held pendant control and walks alongside the coil car to the mandrel. The coil car pendant control has four (4) buttons, and the operator is able to direct the coil car in four (4) directions, namely left or right and up or down when transferring the coil from the coil car to the mandrel. The operator checks the turnstile latch to ensure it is engaged. The operator then positions the coil onto the mandrel by use of the hand held pendant control. The mandrel goes through the centre of the coil and is expanded or contracted by operation of an air valve as necessary to allow the core of the coil to fit tightly and securely around the mandrel. The operator then takes the strap off the coil.

[18] Once the coil has been loaded onto the mandrel, the operator turns the steering wheel, an example of which is shown on photograph 5 of the Agreed Photo Bundle, to lock the mandrel into the fully expanded position so as to prevent the coil from spinning. This is done as a preventative measure in case the pressure in the air valve which expands and/or contracts the mandrel drops.

[19] Once the coil is secured on the mandrel as described above, the mandrel is able to be rotated 180 degrees to face the roll former machine, where the coil is passed from the mandrel through the entry guide on the roll former machine so that it can be shaped. There is a shear at the end of the roll former machine which cuts the product to square based on length and quantity.

The incident involving Mr Leung

[20] On the day of the incident Mr Leung selected a coil from approximately 270 coils (“the coil”) based on colour finish weighing approximately 457 kilograms and used an overhead crane to place it on the bed plate of the coil car. Mr Leung then drove the coil car by use of the pendant control up to the twin turnstile/mandrel and raised the bed plate of the coil car to align the inner diameter of the coil with the contracted face plates. The normal coil bore for all coils of all widths at the premises was approximately 500mm and the nominal clearance from the face plates to a normal coil was apparently 25 mm. A coil with a collapsed centre (“deformed coil”) would not meet that tolerance. Deformed coils have an “egg shape” appearance.

[21] When Mr Leung raised the coil to the face plates of the mandrel, he noticed that it had a deformed centre. Mr Leung attempted to load the deformed coil onto the mandrel. Due to difficulties in fitting the coil to the mandrel Mr Leung disengaged the latch on the turnstile to allow some lateral movement of the turnstile left and right to fit the deformed coil. When the coil was about halfway on the face plates of the mandrel, Mr Leung manoeuvred the mandrel by placing his right hand through the coil and onto the steering wheel to steady the mandrel. He then pushed the button on the pendant control of the coil car to move it backwards and forwards to assist fitting the deformed coil, when the coil suddenly fell from the mandrel pinning him to the ground, coming to rest on his right arm and right leg a few millimetres from his chest. Another employee in No. 3 Bay, Mr Fernando came to his aid. Mr Fernando attached some slings to the deformed coil and lifted it off Mr Leung using the overhead crane. Mr Leung was treated at the scene of the incident by ambulance officers and subsequently taken to hospital.

[22] At the time of the incident Mr Leung was facing the mandrel and the coil car was between himself and the mandrel. The coil car was approximately 150mm from the base of the mandrel and the bedplate was approximately 35mm from the mandrel.

[23] On the day of the incident Inspector Pavert attended at the premises to undertake an investigation. Inspector Pavert issued Improvement Notice No. 253617. Inspector Pavert observed that persons may be exposed to a risk of crush injuries when fitting coils of sheet metal to the mandrels from the coil car. Improvement Notice No. 253617 required the Defendant to ensure the health and safety of persons attempting to fit coils of sheet metal onto the mandrels from the coil car by providing and maintaining a safe system of work in relation to material handling to prevent the coil from falling onto the operator. The Defendant was complied with the Improvement Notice.

Post-incident and risk assessment

[24] The Defendant reviewed the coils in No.3 Bay the day after the incident. The Defendant observed that 7 of the 30 "open" coils used in production had deformed centres. One of the reasons that the coil centre collapsed was insufficient recoil tension when the coil is slit. Prior to the date of the incident the Defendant had rejected some coils and returned them to the supplier.

[25] There was no restraining mechanism on the coil car to prevent coils from falling off.

[26] The Defendant had undertaken a job safety analysis (JSA) numbered 323 in 1998 “loading of coil onto mandrel after coil is on coil car”. The JSA has 9 steps for undertaking the job. They are:

1) Move crane and slings clear of work area.

2) Check work area for trip hazards.

3) Check turnstile latch is engaged.

4) Rotate mandrel handle to fully collapse mandrel.

5) Raise coil car to ensure that bore lines up with mandrel.

6) Move coil onto collapsed mandrel.

7) Centre coil on mandrel.

8) Lower coil car and move coil car clear of mandrel.

9) Rotate mandrel handle to expand.

In four (4) of those steps there is a notation to “keep clear of moving coil”. The JSA identified potential hazards. One such hazard was that the turnstile may spin during loading and require the operator to get too close to the coil, and that the coil may hit the mandrel, tipping the coil over. The safe work procedures or measures employed in the JSA to prevent risks arising from those potential hazards required the operator to engage the turnstile latch and stand well clear of the coil during three (3) of the steps. There was no provision in JSA 323 for procedures on dealing with coils with deformed centres.

[27] Whenever an operator performed the task of fitting a deformed coil, this would require the operator to get close to the coil and the coil car to observe the fitting of the deformed coil onto the mandrel. The risk of injury in being in close proximity to the coil and coil car during normal operation had been identified in a JSA 323.

[28] In his statement to WorkCover, Mr Leung says that he was not aware that the Defendant had looked at the job he was doing and was concerned about workers standing in front of the coil while fitting it to the mandrel. Mr Leung was not aware of the JSA and was not aware he should be standing to the side of the coil car during coil transfer operations.

[29] There was no risk analysis procedure or defined criteria for the purposes of identifying and rejecting a deformed coil, however there was provision for such matters to be raised with the safety committee and at weekly crew meetings. The Defendant did not have in place any formal system to assess the condition of coils held in storage prior to their use in production. However, operators were required to assess the condition of coils prior to their use. Operators could do this based on expertise and experience.

[30] Mr John Ayoub the Unit Manager in his interview to the WorkCover Inspector on 5 September 2003 stated:

“A collapsed coil could have been meant for any machine. If the operator tries to use it and it is too hard to put on, they reject it. You could have one a shift, or one a week. It all depends on the colour you are using”.

[31] After the accident the Defendant modified the surface of the coil car and made removable stops to prevent the coil from tipping off. The bed plates and adjustable mechanisms of the mandrels were modified to a reduced diameter to allow deformed coils to fit with less participation from the operators. All operators have been trained on new equipment modifications and coil assessment. The Defendant also contacted the supplier of the coils with a view to having them review quality control for the internal diameter of the coils.

[32] As a result of the incident, Mr Leung suffered multiple fractures including a broken right femur and radius, and upper right arm and right leg.

5 In addition to the agreed statement of facts, the prosecution tendered, without objection, an indexed bundle of documents including a statement of Inspector Tony Pavert dated 29 October 2003, a factual report of Inspector Tony Pavert, dated 11 June 2003, copies of the defendant's Job Safety Analyses No's 334, 466, 335, 302, 301, 323 and 324 relevant to the offence particulars as well as a handwritten Improvement Notice.

6 Also tendered by the prosecution, without objection, were a number of photographs taken by Inspector Pavert, which illustrate the site of the accident as well as the nature of the machinery involved in the incident.

7 On behalf of the defendant, the following material was tendered:

(a) Affidavit of Mr Michael Grundy, sworn 23 January 2006. Mr Grundy is employed by BlueScope Steel Limited as Regional General Manager New South Wales, BlueScope Lysaght. In this role, Mr Grundy is responsible for managing the New South Wales and ACT business operations of BlueScope Lysaght. He is also responsible for the occupational health and safety of 10 of the defendant’s work sites, which employ approximately 350 employees. In his affidavit, Mr Grundy outlines the operations of BlueScope Steel and BlueScope Lysaght at its Chullora facility and the defendant’s risk and OHS management system. He also deposes as to the details of the injured employee and the circumstances which gave rise to the accident.

8 No oral evidence was received in the course of these proceedings.

Relevant principles

9 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account.

10 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]:

....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

11 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474.

12 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646.

13 On the issue of foreseeability, the Full Bench in Capral also stated:

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

14 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows:

... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

15 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

16 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure:

... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender.

17 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]:

Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. ... (emphasis added)

18 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]:

...The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

19 I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to.

General considerations

20 The defendant has prior convictions, and as such, the maximum penalty which can be imposed is $825,000.

21 The defendant was under an obligation to ensure that a safe system of work existed in relation to the transportation, loading and fitting of coils intended for the manufacture of guttering products. It was imperative that the defendant have such a system in place which addressed the specific risks and hazards associated with the loading of coils onto the mandrel. The process of doing that was clearly made all the more difficult when the coil was deformed, which was the case in the incident involving Mr Leung. What was critical, in my view, as part of the task involved, was to ensure that the moving of coils from the coil car to the mandrel was free of risks to safety. Given the size and immense weight of the coils, it was foreseeable that a risk of injury existed if proper safety procedures were not addressed.

22 The defendant knew that deformed coils presented on a reasonably regular basis for employees to deal with. The defendant also knew that manoeuvring such coils onto the mandrel was not without difficulty.

23 As was stated in Capral, the presence of foreseeability ‘will necessarily result in the offence being more serious in nature’. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). In my view, the risk to safety posed to Mr Leung was, given the circumstances, foreseeable.

24 As the facts disclose, BlueScope Lysaght was engaged in manufacturing rainwater goods such as guttering at Bay No. 3 at its Chullora premises. A key component of the manufacturing process involves coils, which comprise of many rolls of painted steel product. The coils come in an array of colours and can be cut and modified to customer order specifications. A single coil can weigh between 500 to 900 kilograms.

25 One the day of the incident, Mr Leung selected a coil which weighed 457 kilograms and transported it by coil car to the mandrel. Upon raising the coil to the mandrel by the coil car, he noticed that the coil had a deformed, egg shaped centre rather than a round, circular shape. He unlocked the latches on the turnstiles in order to generate movement of the coils in an attempt to fit the coil to the mandrel. When the plate was about halfway on the plates of the mandrel, Mr Leung manoeuvred the mandrel by placing his right hand through the coil and onto the steering wheel to steady the mandrel. He then pushed a button on the pendant control of the coil car to move it backwards and forwards in order to fit the coil to the mandrel. The coil suddenly lurched forwards and fell, pinning Mr Leung to the ground and crushing his right arm and leg. As a result, Mr Leung suffered multiple fractures to his right arm and leg.

26 The evidence discloses that, prior to the accident, the defendant had in place a comprehensive occupational health and safety management system for work to be undertaken at the Bay No. 3. This included a Job Safety Analysis (JSA) titled ‘Loading of coil onto mandrel after coil is on coil car’, which outlined a safe work methodology specifically for loading coils. That JSA identified the need to engage the turnstile latch and to stay clear of a moving coil to avoid injury. The JSA noted the hazards associated with working close to a moving coil and repeatedly stated in clear terms that an operator was to "stand clear of a moving coil". While the JSA only addressed the issue of loading a normally shaped coil, it is clear to me that such a direction was relevant whether the coil was normally shaped or deformed.

27 In spite of the existence of a JSA which alerted workers to hazards common to both normal and deformed coils, it is unclear if it was made available and clearly communicated to Mr Leung. In a statement to WorkCover, Mr Leung stated he did not know about the JSA, nor that he should have stayed clear of the moving coil. There could be two possible scenarios as to why Mr Leung was unaware of the JSA and the need to keep clear of a moving coil. One such reason could have been the assumption that Mr Leung was already aware of the JSA and the safety procedures as an experienced and knowledgeable operator and had become complacent was to its directive to keep clear. Another reason could have been Mr Leung’s basic understanding of English could have hindered his understanding of the JSA or that it was not properly explained to him in his native Cantonese by his “buddy” on site, Mr Hang. Neither of these scenarios are satisfactory explanations as they fall short of the duty incumbent upon an employer to provide a constant safe working environment. It must be acknowledged however, as deposed by Mr Grundy, the defendant had in place a language program and “buddy” system to ensure employees from non-English speaking backgrounds would be able to understand the tasks they were required to perform.

28 As the facts confirmed, there was no formal system in place for identifying and rejecting deformed coils before they were loaded upon the coil car. Operators determined, in an ad hoc fashion based on expertise and experience, whether or not a coil was suitable for the work to be undertaken. It was accepted work practice by operators to use deformed coils unless they were, as deposed by Mr John Ayoub in a statement to WorkCover, “... too hard to put on, they reject it”. Given that it was possible for collapsed or deformed coils to appear on any machine and that they were a regular occurrence, what the defendant should have had in place was a systematic process which would allow employees to determine what coils were unsuitable to work with and to reject them. Additionally, once a coil was selected, the employee had to 'stand clear', as the JSA indentified.

29 The JSA for working with coils, deformed or otherwise, was not assisted by the coil cars lacking safeguards which prevented coils from falling off the coil car when being transferred to the mandrel. The defendant subsequently fitted restraining devices to all coil cars following Mr Leung’s accident.

30 I accept that the defendant's JSA system in place at the time of the accident was long standing and subject to regular review. Mr Grundy deposed that at the time of the accident the defendant had a draft copy of a JSA which addressed the issue of loading a collapsed bore coil onto a mandrel. As it was still in draft form, however, it had not been released or discussed with employees. Whether that JSA would have avoided Mr Leung's accident is not entirely clear to me. As it is, Mr Leung may be considered somewhat fortunate to have escaped with the injuries he did, serious though they were. The weight of the steel coil that fell on him was 457kg. He is lucky to be alive.

31 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. That the defendant had already developed the draft JSA dealing with the handling of deformed coils, it is clear that such a process of remediation was already available to the defendant. In short, the defendant had already recognised the hiatus in it's otherwise commendable approach to risk assessment and analysis of recognised tasks in order to avoid workplace injury.

32 As well, after the accident, the defendant promptly sought to review its safety practices in regard to work conducted with loading coils. On the day after the incident, a JSA which addressed the issue of loading a deformed coil onto the mandrel was introduced. An SSO (Significant Safety Occurrence) report on the accident and its subsequent findings were communicated across the defendant’s business and requests were made for a review of safety procedures of work relating to deformed coils. The report identified the need for modifications to be made to the mandrels to facilitate easier acceptance of coils when performing loading tasks, to add safety pins to prevent coils from dislodging from the mandrel and to fit restraining devices to all coil cars. Modifications were made and training was conducted for the new JSA and modified equipment. The defendant also contacted the supplier of the coils to discuss ways in which to reduce the incidence of deformed coils.

33 Considering all of the above as well as submissions received, I assess the offence as being in the mid- range of seriousness and will assess penalty on that basis.

34 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that:

We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.

35 In respect of specific deterrence, the Full Bench held in Capral at 644-645:

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act.

36 The defendant operates in an industry where the safety of workers is of vital importance as the work undertaken is fraught with risk and the real possibility of injury. General deterrence is a relevant consideration in this instance. In light of the mitigating steps which the defendant has undertaken since the accident, the weight attached to specific deterrence should be tempered accordingly.

37 Prior to the accident involving Mr Leung, the defendant had in place a comprehensive OHS management policy and displayed a sense of responsibility and commitment to the workplace health and safety of its employees. The defendant sought to proactively engage its employees in workplace health and safety matters through mechanisms such as The Take 2 program, which required operators to plan how they would undertake a task as well as daily toolbox meetings, safety training, auditing and safety committees which required employee participation.

38 The defendant also assisted employees from non-English speaking backgrounds by pairing them up with a “buddy” who spoke English as well as the same language as the employee so they would have another person who would be able to explain how to undertake the work as well as safe work practices.

39 The defendant remains committed to workplace safety since Mr Leung’s accident. This is exemplified by its prompt action to address problems which were raised by Mr Leung’s accident. Drastically reducing the incidence of medical treatment injuries and maintaining a record of no Lost Time Injuries since the accident are also indicators of the defendant’s clear desire to uphold workplace safety.

40 In assessing the impact of the plea, the Court is guided by the decision of R v Thomspon; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I assess that discount at twenty five per cent.

41 The prosecution has properly conceded these matters which are mitigating factors for the defendant. The defendant entered a plea of guilty at an early stage and cooperated with WorkCover during its investigation. The defendant has also expressed remorse as to the accident and the impact it has caused on Mr Leung. Mr Leung returned to work in March 2005 and the defendant has provided suitable alternative work as a storeman to Mr Leung as he can no longer work in his previous role due to his medical condition. The defendant has also commendably organised for rehabilitation, counselling, medical treatment, domestic assistance and other assistance as required by Mr Leung and his family at its own expense. Throughout this period, Mr Leung has continued to receive a wage equivalent to what he was earning previously as a level 3 operator, in addition to weekly worker’s compensation payments.

42 Considering all the subjective elements I have identified, the defendant is entitled to a further discount in my penalty considerations.

43 Taking into account all the matters I have referred to, I determine a penalty in this matter of $80,000.

44 I make the following orders:

(1) The defendant is guilty of the offence charged.

(2) I impose a penalty in this matter of $80,000.

(3) I allocate a moiety to the prosecution on the usual terms.

(4) I order the defendant pay the costs of the prosecutor as agreed. Failing agreement within 28 days, the matter may be referred to the Registrar for assessment.

LAST UPDATED: 13/07/2006