Inspector John Patton v Toll Transport Pty Ltd t-as Toll Regional [2009] NSWIRComm 69 (20 May 2009)

Last Updated: 22 May 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector John Patton v Toll Transport Pty Ltd t-as Toll Regional [2009] NSWIRComm 69



FILE NUMBER(S):
IRC2058

HEARING DATE(S):
28/04/09

DATE OF JUDGMENT:
20 May 2009

PARTIES:
Prosecutor:
Inspector John Patton
Defendant
Toll Transport Pty Ltd t/as Toll Regional


CORAM:
Kavanagh J


CATCHWORDS: Section 10(1) of the Occupational Health and Safety Act 2000 - amended Application for Order - fatality - transport depot - defendant controller of worksite - poor lighting - failure to properly risk assess - unsafe traffic control - no designated pedestrian area - safety system not enforced - pre-existing commitment to safety - foreseeable element to the risk - contribution of risk from one of two involved third parties - early plea of guilty from defendant - parent company demonstrating corporate responsibility - prior breaches to the Occupational Health and Safety Act 2000 considered - penalty

LEGAL REPRESENTATIVES
Prosecutor:
Ms P.E. McDonald of counsel
Solicitors:
Ms R. Panagoda
WorkCover Authority of NSW
Defendant:
Mr A.R. Moses SC with Mr L. Ang of counsel
Solicitors:
Mr M. Baroni/Mr A. Ash
Clayton Utz

CASES CITED:
Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610
Insp Nixon v George Weston Foods Ltd [2005] NSWIRComm 287
Insp Page v Rail Infrastructure Corp [2009] NSWIRComm 9
Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch’ng) (1999) 90 IR 464
Markarian v R [2005] HCA 25; (2005) 215 ALR 213
Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364
R v Gallagher (1991) 23 NSWLR 220
R v Shankley [2003] NSWCCA 253
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Way (2004) 60 NSWLR 168
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority of NSW (Insp Ch'ng) v ACI Operations Pty Ltd
WorkCover Authority of NSW (Inspector Ankucic) v McDonalds Australia Limited and Anor [2000] NSWIRComm 1123; (2000) 95 IR 383

LEGISLATION CITED:
Occupational Health and Safety Act 2000
Crimes (Sentencing Procedure) Act 1999


TEXTS CITED:




JUDGMENT:

- 16 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Kavanagh J

Wednesday 20 May 2009

Matter No IRC2058 of 2008

INSPECTOR JOHN PATTON v TOLL TRANSPORT PTY LTD t/as TOLL REGIONAL

Prosecution under s10(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2009] NSWIRComm 69

1 This prosecution is brought by Inspector Patton of the WorkCover Authority of New South Wales against Toll Transport Pty Ltd t/as toll Regional (the defendant) under s10(1) of the Occupational Health and Safety Act 2000 (the Act), by way of an amended Application for Order.

2 It is alleged the defendant on 24 November 2004 contravened s10(1) of the Act in that it failed to:

ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000.

It is alleged the defendant, in particular:

(a) had control of the site;

(b) controlled the site in the course of its business or undertaking of providing regional transport, logistics and warehousing services at the site;

(c) failed to ensure that there were safe systems for traffic control to separate vehicles from pedestrians at the site;

(d) failed to ensure truck drivers wore reflective vests or other suitable high visibility clothing while working at the site;

(e) failed to ensure that Robert Starr was formally inducted on site to ensure that he was familiar with the risks and rules applying to the site;

(f) failed to perform a proper risk assessment with respect to traffic management and pedestrians and heavy vehicles at site;

(g) The defendant failed to ensure that the site was properly lighted to ensure visibility of pedestrians at the site.

As a result of the defendant’s failures Robert John Starr was placed at risk of injury and as a result of the defendant’s failures Robert John Starr suffered fatal injuries.

3 The defendant pleads guilty to the charge.

4 Ms P.E. McDonald of Counsel, appeared for the prosecution and Mr A.R. Moses SC with Mr L. Ang of Counsel, appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts, photographs, a Factual Inspection Report and the Prior Conviction Record of the company.

5 The respondent relied upon an affidavit of Kenneth Graeme Gaunt affirmed 22 April 2009 as well as an affidavit of Peter James Dwyer sworn 22 April 2009. A number of relevant documents were attached to the affidavits including documents in relation to the investigation of the incident, the upgrading of the system of work for the safe removal of tarpaulins from semi trailers including major adjustments to the system of work and site conditions.

6 The Agreed Statement of Facts relevantly reads:

BACKGROUND

3. The defendant was the registered proprietor of and traded under the business names – Toll Regional and Toll Fleet Management.

4. The defendant controlled the site in the course of its business or undertaking of providing regional transport, logistics and warehousing services at the site.

5. At about 1.00 AM on 24 November 2004, Mr Robert John Starr, a professional transport driver, sustained fatal crush injuries when he was run over by a prime mover as he was rolling up a tarpaulin at the site (the incident).

6. At the time of the incident Toll Pty Ltd employed persons at the site, including Brett McDonald, forklift driver, Peter Krychaluk, tanker driver, Mark Richardson, break down coordinator, David Lloyd, supervisor and Peter Dwyer, Risk Manager.

7. On 24 November 2004 Mr Starr, was performing his duties as a transport driver. Mr Starr was employed by Wayne Lewis Transport Pty Ltd (ABN 24 076 457 415) (Wayne Lewis Transport).

8. Mr Starr had been employed by several transport companies in the Wagga Wagga area and had many years experience as a truck driver. He had worked for Wayne Lewis Transport for approximately 8 years. Wayne Lewis Transport had been in business for 8 years, employing one full time and one part time employee.

THE SITE

9. The site where the incident occurred was a road transport depot. Wayne Lewis Transport was one of a number of transport companies that used the site as a truck depot to load and unload goods.

10. The depot had 3 driveways. Gate 1 was locked at 6 pm. Gate 3 was used by car-carrying vehicles during the day and was closed at approximately 6 pm daily. This traffic was then routed to gate 2.

11. At night the entrance to the site is through Gate number 2 which is on Travers Street. All vehicles used gate 2 after 6 pm. A gate person was not employed at gate 2 after 6pm however during the night shift on 23-24 November 2004 Mr Richardson was working in the office as the breakdown co-ordinator.

12. There was a driveway or thoroughfare which ran from Gate 2 in a north/south direction. As one entered the site through Gate number 2 and proceeded along the thoroughfare on the left (or eastern side) there was a warehouse which was known as the Beer Shed. At the end of the thoroughfare was a holding yard in which trailers and trucks were parked. Across the holding yard was another thoroughfare which ran in an east/west direction. At the western end of the east/west thoroughfare a staff car park and at the eastern end of the east/west thoroughfare was a weighbridge.

DETAILS OF THE INCIDENT

13. At the time of the incident Mr Starr had returned to the site from Sydney with a load containing assorted brands of beer. The beer was to be unloaded into the beer shed at the site. Mr Starr’s prime mover was a Kenworth brand with NSW licence plates and the trailer, with NSW registration L26823 was a flat top with a tarpaulin over the load; the tarpaulin covering the load had to be removed before the beer was unloaded into the beer shed.

14. Mr Richardson was working in the gatehouse, when Mr Starr arrived at the site. Mr Starr waved to Mr Richardson as he entered through gate number 2 and proceeded to travel down the thoroughfare and turn around in the loading area. At this time there was a truck parked alongside the beer shed which was being unloaded by Mr McDonald, the forklift driver. Behind the first truck was parked a truck and trailer owned by Fishers Transport and driven by Mr Donoghue.

15. Mr Donoghue was preparing his truck and trailer for unloading and observed Mr Starr park his truck behind his and then complete some paperwork in the cabin of the truck. The unloading of the first truck was completed and it drove off allowing Mr Donoghue to move his truck forward to be unloaded. Mr Starr then moved his truck forward to about the same place where Mr Donoghue’s truck had been previously parked.

16. While his trailer was being unloaded Mr Donoghue assisted Mr Starr in taking ropes and the tarpaulin off Mr Starr’s trailer. The tarpaulin had been taken off and placed on the thoroughfare to the left of Mr Starr’s truck and trailer (that is, the passenger side). Mr Donoghue assisted Mr Starr in folding the tarpaulin. The only task to be completed was rolling up the tarpaulin and Mr Donoghue left Mr Starr to complete that task, Mr Donoghue returned to his vehicle.

17. Paul Flynn was a truck driver employed by a partnership - Stephen and Carolyn Silinzieds who traded as Wheels Haulage. At about 7pm on 23 November 2004 Paul Flynn was telephoned by his operations manager and told to weigh the container that he was required to take to Melbourne on his next trip.

18. Mr Flynn arrived in his car at the defendant’s site at about 12:30am on 24 November and proceeded through Gate number 2 up the north south thoroughfare and then along the east/west thoroughfare to the staff car park. Mr Flynn saw trucks parked on his left hand side (the western side of the thoroughfare). After parking his car, Mr Flynn went to the prime mover that he was to drive that night and he hitched the trailer to the prime mover. He then went to the weighbridge which was located at the north east side of the site. Once the trailer was weighed, Mr Flynn drove around the back of the welding shop and drove along the holding yard (Annexure 8).

19. Mr Flynn had to negotiate a left hand turn around a traffic bollard on his left hand side. He turned into the north/south thoroughfare and drove past the line of trucks next to the beer shed that were being unloaded or waiting to be unloaded.

20. As he negotiated the left hand turn and travelled along the thoroughfare Mr Flynn ran over Mr Starr and the tarpaulin. Mr Flynn saw neither the tarpaulin nor Mr Starr.

21. Mr Flynn stopped at the gatehouse at Gate number 2. Mr Flynn said to Mr Richardson who was in the gatehouse: “I think I have run over old mate’s tarp.”

22. The incident was not witnessed however there were several people in the vicinity who had seen Mr Starr shortly before the incident.

23. At approximately 1.00am on the 24 November 2004, Mr McDonald, the forklift driver, moved to the rear of the semi trailer of Mr Donoghue’s truck to unload a pallet of beer. He saw the tarp and a male person lying on the ground. Mr McDonald ran to the gatehouse to alert Mr Richardson and Mr Flynn.

24. The post-mortem examination conducted by Dr Donlon reported that Mr Starr had died as a result of multiple injuries – major abdominal, pelvic and lower limb trauma, including transection of the spinal column and aorta. According to Dr Donlon these injuries were consistent with the incident.

THE SITE AND SYSTEM OF WORK PRIOR TO THE INCIDENT

25. At the time of the incident Mr Starr had parked his truck and trailer near the beer shed and was waiting to move forward to unload his truck. There were no safe systems of traffic control to separate vehicles from pedestrians such as Mr Starr at the site.

26. There were speed limit signs on the fence and gate advising of a speed limit of 10 kilometres per hour. However there was no system to ensure that vehicles kept to the speed limit.

27. There were inadequate traffic lanes marked or inadequately designated parking areas for trucks waiting to be unloaded in the area where the incident occurred. There were some line markings on the north/south thoroughfare near the beer shed parking areas. The markings were faint.

28. While there was a designated loading and unloading area at the site, there was no designated vehicle exclusion zone where drivers could tarp and untarp trailers and roll up tarpaulins once these had been removed from the trailers.

29. Most trucks entering the site were taut liners and not flat top trucks which used tarpaulins. The frequency of a flat top truck entering the site ranged from about one a night to about two trucks per week. When flat top trucks did enter the site, the drivers would, from time to time, untarp trailers and roll up tarpaulins in the area where the incident occurred. The defendant was aware of the practice of rolling tarpaulins in the thoroughfare but the defendant did not ensure designated areas, nor provide barriers for this purpose. There was no prohibition on truck drivers folding and rolling up the tarpaulins in the driveways or thoroughfares on site.

30. Mr Starr was not wearing any high visibility clothing such as a reflective vest at the time of the incident; he was wearing dark clothing. Mr Starr was crouched down and in the process of rolling up the tarpaulin prior to putting it back on the trailer. Although it was a requirement of the defendant for drivers at the site such as Mr Starr to wear high visibility vest, the wearing of safety vests or other high visibility clothing by truck drivers at the site was not enforced by the defendant.

31. Mr Starr's employer, Wayne Lewis Transport provided him with a high visibility vest and directed Mr Starr to wear it when on sites where he was required to do so by site rules. On the night of the incident Mr Starr did not wear his vest.

32. At the time of the incident the defendant was required to comply with the Corporate Risk Manual of Toll Finemores Transport which required it amongst other matters to conduct a formal induction for all employees, contractors, casual labour and visitors to the site (Annexure 1) However, Mr Starr was not formally inducted onto the site to ensure that he was familiar with the risks and rules applying to the site.

33. The area where the incident occurred was inadequately lit. Only one light was working at the northern end of the building where the incident happened. The light at the rear of the shed where the incident occurred was not working.

34. The lights in the shed that were working were directed towards the unloading area and gatehouse.

35. No risk assessments had been undertaken by the defendant concerning traffic management and pedestrians and heavy vehicles at the site. No assessment had been undertaken for the adequacy of lighting at the site.

36. As a result of the defendant’s failures, and the failure of others, Robert Starr was placed at risk of injury and further, as a result of the defendant’s failures and the failure of others, Mr Robert Starr suffered fatal injuries.

THE SITE AFTER THE INCIDENT

37. Since the incident and after being served with a Prohibition Notice (number 7-70939) by WorkCover, extra lighting was installed and stronger lighting was used in the area which was poorly illuminated at the time of the incident. Any blown globes were replaced.

38. On a follow up visit, to the site on 7 March 2006 Inspector Hannah noted a sign prohibiting parking was attached to the workshop wall. As a result the roadway is at least another 4 metres wider.

39. The removal and folding of tarpaulins on the roadway thoroughfare is now prohibited and drivers must remove the tarpaulins inside the shed.

40. A sign prohibiting parking was attached to the workshop wall. This remedial step was taken in light of evidence that, when a heavy vehicle is parked parallel to the workshop wall, the width of the roadway is reduced by approximately 4 metres

41. New designated no-parking areas were marked out at the Site and two "No Parking" bollards were replaced with new bollards. Also, new yellow lines were painted over old white lines and a maintenance program was introduced to ensure the lines are renewed every two weeks or when needed.

42. The portable building that protruded onto the roadway was removed making room for a series of 5 metre wide loading zones to be marked out on the roadway.

43. Signage was placed at the front gate and memos have been issued regarding the wearing of safety vests.

44. Also, on 10 December 2005 Toll issued a Hazard Bulletin regarding the Incident which required the immediate reinforcement of site procedures for all sites in relation to:

a. effective site induction to visiting drivers and sub-contractors including high visibility clothing, driver location during loading and unloading, traffic flows and speed limits, specific site hazards, designated parking and loading areas and restricted areas;

b. ensuring sufficient lighting is available when work is conducted outside daylight hours;

c. adequate and appropriate signage on site; and

d. adequate supervision to enforce site rules at all times.

Relevant Principles
7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213 and their Honours’ view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s10(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23 and 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the “instinctive synthesis” approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

8 Their Honours recognised the “instinctive synthesis” approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a “staged sentencing process” starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]).

9 Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this “instinctive synthesis” approach to sentencing saying at [57]:

[57] The instinctive synthesis approach is the correct general approach to

sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.

10 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. Of relevance particularly is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999.

Consideration
11 In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464 (at 474):

In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"...

And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]:

[32] In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected...

12 In considering the objective seriousness of the offence, it is necessary to consider the relationship between Toll Transport, who as the defendant was trading as Toll Regional, as revealed by Kenneth Graeme Gaunt, the company's Group General Manager - Risk:

9. The Toll business was founded in 1888 by Mr Albert Toll. Since that time, the Toll Group (the Toll Group) has developed into one of Australia's leading providers of integrated transport and logistics services. The Toll Group's transport and infrastructure assets include ports, warehousing, road fleets, ships, rail forwarding operations and air freight capacity.

10. The Toll Group operates over 600 sites and employs:

(a) over 25,000 employees throughout its operation in Australia, New Zealand and the Asia- Pacific Region;

(b) approximately 77% of the Toll Group's employees are based in Australia; and

(c) approximately 30% of the Toll Group's Australian employees are based in New South Wales of employees in New South Wales.

11. In addition, the Toll Group engages thousands of subcontractors (including lorry owner-drivers known as contract carriers) at any given point in time.

12. For various strategic and operational reasons, the Toll Group conducts its operations through separate legal entities and trading divisions. However, the majority of Australian operations are conducted by Toll Transport Pty Limited under various trading names.

13 The offence, therefore, arose from an incident which occurred at a Toll Regional Depot for road transport situated at 85 Travers Street, Wagga Wagga. Mr Robert Starr, a truck driver, employed by another company, Wayne Lewis Transport Pty Ltd, sustained fatal crush injuries when he was run over by a prime mover driven by a third person as he was rolling up a tarpaulin taken from his truck after making a delivery at the defendant company's Wagga Depot.

14 The prosecutor submitted the particulars to the offence to which the defendant has pleaded guilty can be divided into two groups, namely: the absence of a system for traffic control at the site and secondly, an examination of systems that were in operation at the site but which were not complied with or enforced by the defendant at its worksite at the relevant time.

15 As to the system of work in place, there was no defined area for truck drivers to attend to the removal of tarpaulins from their loads away from a trafficable area. Further, the company had a Corporate Risk Management Manual but failed to ensure that the deceased, Mr Starr, was inducted into the site's procedures. Had he been so inducted (he had attended the site on two prior occasions) he would have known it was the defendant's policy to require the use of safety vests on site. Further, lighting was very poor and there were no defined pedestrian areas. Clearly, there had been a failure to risk assess the relevant task at this depot. The risk was a failure to ensure safe working at the depot for the driver of a vehicle delivering in night time conditions.

16 As to the objective seriousness of the offence, I accept there was a pre-existing commitment, by the defendant, to a policy to ensure safe working at the Depot. Further, I accept the evidence that the employer of the deceased, Wayne Lewis Transport Pty Ltd, while it provided a safety vest to its employees, rather suggested to the employees that it was open to wear such a vest only when required by the management of the depots to which they made deliveries.

17 However, the Court does not accept there has been a lack of transparency "as to why other persons, namely, the employer or the driver do not face prosecutions in this matter". The Court is not, nor should it ever, sit in the shoes of the prosecution. Sufficient that, in accordance with the reasoning in WorkCover Authority of NSW (Inspector Ankucic) v McDonalds Australia Limited and Anor [2000] NSWIRComm 1123; (2000) 95 IR 383, I accept there can be a consideration as to the contribution to the risk of other parties at this site at the relevant time including parties to an event who are not the subject of prosecution under the Occupational Health and Safety Act. I do not find, on the evidence before me there can be a finding of contribution to the risk against the driver of the vehicle which struck Mr Starr. The driver was driving in an area with bad lighting. There was no evidence of speed. I accept the driver did not see Mr Starr who, by inference, was bent over his truck's tarpaulin in the dark in a traffic carrying area and not wearing a safety vest. I do, however, find there was a contribution to the risk by Mr Starr's employer who, on the evidence, failed to ensure (by instruction to its employee) as to the wearing of safety vests when unloading vehicles in a poorly lit depot at night.

18 The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed in the Full Bench decision of Capral Aluminum Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. On the issue of foreseeability, the Full Bench in Capral stated at [82]:

82 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.

19 The defendant accepts there was a foreseeable element to the offence. This admission is commendable. It is clear it was foreseeable a driver performing a necessary task in unloading a semi-trailer and who was required to do so in a badly lit trafficable area without the obligation to wear a safety vest was at risk to his health and safety. This foreseeable element to the offence has the effect of making the breach most serious.

20 The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence (WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were obvious steps that could have been taken which, either singly or in combination, would have eliminated or reduced the risk. These steps have now been implemented by the defendant. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practicable although I also acknowledge the considerable expense that must have been incurred by the respondent to implement the reforms.

21 The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendant (Lawrence Diecasting). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of any employee being required to manually fold a tarpaulin in a badly lit area that carried the movement of heavy trucking. The risk in this case became a reality and the gravity of the risk affects the culpability of the defendant.

22 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71]-[77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]:

... 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.

23 The defendant continues to operate in the heavy trucking industry. It works especially in the movement of trucks and the delivery of goods by road. A rigorous approach is needed by all employers conducting work within the transport industry which involves the movement of such vehicles and this is especially so in their confined depot areas. An element of general deterrence is necessary in the consideration as to penalty to remind the industry of the necessary insistence on not only defined safe working models, but the performance of tasks in accordance with those safe working modules.

24 As to specific deterrence, the defendant submits it had a pre-existing commitment to occupational health and safety as evidenced through its manuals and the publication of the company's systems. Evidence by Mr Gaunt persuades as to that pre-existing commitment. He opined:

15. The Toll Group's overall OHS policy and its commitment to safety is issued at a Group level. The current version of the policy is contained in a document that is accessible on Toll's website (www.toll.com.au) and is exhibited hereto and marked Exhibit "KG-1".

16. Toll's OHS Policy is also publicised on a poster that is distributed throughout the company's various divisions. A current version of the poster that has been reduced in size is exhibited hereto and marked Exhibit "KG-2". The Toll Group's overall OHS policy was in place at the time of the incident. It has since been reviewed by senior management in consultation with employees. The Toll Group's commitment to safety, as expressed in that policy, remains the same.

17. The Toll Group has developed a Corporate Risk Management Manual, which deals with policies and procedures relating to the management of all types of risk across its operations. Section 2 of that Corporate Risk Management Manual details the Toll Group's OHS Management System, which outlines the responsibilities of each business and trading division and managers in relation to the management of safety risk (the Group OHS Management System) procedures to manage OHS risk.

18. The Group OHS Management System is distributed to the Branch Managers of each business and trading division of the Toll Group, and each business and trading division is required to implement OHS policies and procedures that are consistent with this System. The Group OHS Management System was in place at the time of the incident, and has been subject to some changes since that time as it is subject to continuous review and change. The Group Risk Department of the Toll Group has the responsibility to review and update the Group OHS Management System, and it carries out its duties in consultation with senior management and with the input of OHS Committees from each business and trading division.

25 However, while I accept there was a pre-existing safe system documented, it was not being adhered to at this regional site - the Wagga Depot. Once more the Court must reiterate it is not in the preparation of materials that safe work methods are implemented but in the rigorous insistence in their performance through induction, training and supervision. While I accept there was a safe system planned by the defendant, it was not implemented at this site and therefore, as the company continues to operate the depot, there must be an element of specific deterrence.

26 I also accept from Mr Gaunt the following steps have now been taken:

21. Since the incident, the Group OHS Management System has been reviewed on an ongoing basis. As a result, the Group OHS Management System has evolved to meet the Toll Group's changing OHS requirements. A copy of the current Group OHS Management System is exhibited hereto and marked Exhibit "KG-4". The Group OHS Management System is also available online.

22. Included in the current Group OHS Management System is a newly introduced OHS Performance Standard which identifies and allocates responsibility for specific requirements in order to comply with legislative requirements. The OHS Performance Standard applies to all of the Toll Group's business divisions, including Toll Regional and deals with a range of matters, including the Toll Group's Policy, the Group OHS Management Plan, responsibility and accountability, training and competency and consultation, communication, reporting, hazard identification and risk assessment and control.

27 I also accept the evidence of Mr Peter James Dwyer, the Risk Manager of Toll Regional. He assures the Court at the Wagga Depot the following has been attended to: additional lights have been installed on site; parking signs installed; new no-parking areas have been designated; new yellow lines are now painted over old white ones; there is a reintroduction of designated tarping/untarping areas; (removal tarps must now be done inside the Beer Shed); the portable building extending onto the roadway has been removed; space can now be shared inside a shed on site; a memorandum was issued stating a preference of the site manager that vehicles are loaded inside; signs and memos have been issued regarding the use of safety vests; site inductions are meticulously conducted with all drivers using that depot.

28 It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way (2004) 60 NSWLR 168 at [56]:

[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).

Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" (R v Gallagher (1991) 23 NSWLR 220 (at 228)).

29 An early plea of guilty was entered at the earliest stage in the proceedings (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383). The defendant is therefore entitled to a discount of 25 percent for the utilitarian value of its early plea of guilty. The defendant fully co-operated with WorkCover Authority throughout the investigation of the incident. The defendant also instructed lawyers to assist in the amended Agreed Statement of Facts.

30 The defendant, through its most senior officers, has expressed contrition for the offence as was also indicated in the early plea of guilty.

31 The Court in sentencing has regard to the size and nature of the defendant's workforce and the inherent risks involved in the work performed in the transport industry. As revealed by Mr Gaunt, I accept the company makes a significant contribution to employment not only in our major cities across Australia, but also contributes significantly by providing employment in regional areas of Australia.

32 I accept the defendant as part of the Toll Group is committed to striving to be a socially responsible corporation which supports its employees in their community activities. In particular, it has a significant focus on assisting vulnerable members of within those communities. Examples of this significant assistance to employees, the company's community work, the donations and practical support the company offers to public charities and disaster programmes were outlined by Mr Gaunt. These activities of both the trading company and its parent company demonstrates a corporate responsibility, even generosity, which is to be commended. The company is a good corporate citizen.

33 However, while relying on its favourable community activity and while acknowledging the defendant operates in an inherently dangerous industry, the defendant does not have a fine industrial record. The defendant's parent company had two prosecutions for breaches of the Occupational Health and Safety Act recorded in 2002, both before the New South Wales Local Court; three recorded breaches under the Victorian Act (one of which appears from penalty to have been viewed by the Court as serious) and one breach under the Queensland legislation.

34 In Inspector Page v Rail Infrastructure Corporation [2009] NSWIRComm 9, Haylen J referred to Inspector Nixon v George Weston Foods Ltd [2005] NSWIRComm 287 in which the Court referred to the use to be made of prior convictions and the need to avoid sentencing an offender twice for offences already dealt with by a court. Further, in R v Shankley [2003] NSWCCA 253, Howie J referred to the principle expressed in Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 and stated:

[31] ... The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that "retribution, deterrence and protection of society may indicate a more severe sentence is warranted".

I take into account the prior breaches of the occupational health and safety standards throughout Australia but also note the effect of those prior breaches of the Act in New South Wales. The defendant, in New South Wales, faces a maximum penalty raised from $550,000 to $825,000 because of its prior breaches of the Act.

35 Taking into account all the above considerations but acknowledging this is a most serious offence where the defendant failed to ensure premises controlled by it, wherein work was performed, were safe and without risk.

36 I find the defendant guilty.

37 The defendant is fined in the sum of $220,000. There is to be a moiety to the WorkCover Authority of NSW.

38 The defendant shall pay the prosecutor's costs as agreed or assessed.

Orders

39 For all the above reasons, I make the following orders:

1. In Matter No IRC2058 of 2008, I find the defendant guilty of the offence as charged.

2. The defendant is fined in the sum of $220,000 with a moiety to WorkCover Authority of New South Wales.

3. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.

LAST UPDATED:
22 May 2009