Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79 (27 May 2009)

Last Updated: 29 May 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79



FILE NUMBER(S):
IRC 257

HEARING DATE(S):
30 October 2008

DATE OF JUDGMENT:
27 May 2009

PARTIES:
PROSECUTOR:
Inspector Marie Davidson

DEFENDANT:
Plasser Australia Pty Ltd

CORAM:
Backman J


CATCHWORDS: Occupational health and safety - Occupational Health and Safety Act 2000 - s 8(2) - plea of guilty - worker dies after working on split rim and tyre assembly with tyre inflated - serious offence - subjective factors considered - penalty - costs.

LEGAL REPRESENTATIVES
PROSECUTOR:
Mr M Cahill of counsel
Solicitors: Criminal Law Practice Legal Group
WorkCover Authority
(Ms B Benson)
DEFENDANT:
Ms W Thompson of counsel
Solicitors: Ai Group Legal Pty Ltd
(Ms N Street)

CASES CITED:


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


TEXTS CITED:




JUDGMENT:

- 3 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BACKMAN J

Wednesday, 27 May 2009

Matter No IRC 257 of 2008

INSPECTOR MARIE DAVIDSON v PLASSER AUSTRALIA PTY LTD

Prosecution under 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT OF THE COURT

[2009] NSWIRComm 79

1 Plasser Australia Pty Ltd (Plasser) has pleaded guilty to an offence under s 8(2) Occupational Health & Safety Act 2000. On 1 March 2006 Kevin Butler, an employee of St Mary's Tyre Service (NSW) Pty Limited, attempted to remove nuts on the rear right-hand rim and tyre assembly of a mobile crane. Shortly after he commenced, John Burdzy, the mobile crane operator and an employee of Plasser, saw the rim on which Mr Butler was working, move slightly. The Agreed Statement of Facts records that Mr Butler stepped back and heard an "explosion". He saw Mr Butler pushed by the force of the air and water escaping from the rim and tyre assembly. Mr Burdzy estimated that Mr Butler was thrown about 6 to 7 metres before slumping onto a 44 gallon drum.

2 Mr Butler was taken by ambulance to hospital where on 5 March 2006 he died of his injuries.

3 The mobile crane was owned and operated by Plasser. At the rear, it was fitted with two split rim and tyre assemblies which were each secured together by 10 threaded studs fitted with nuts. The secured rims were in turn fixed to the rear hubs of the crane by the inner rims containing 8 threaded studs fitted with nuts. The 10 nuts which secured the inner and outer rims, were painted red in order to distinguish them from the 8 nuts securing the inner rims to the hubs. On the day of the accident, only slight traces of red paint remained on some of the 10 nuts securing the rims fitted to the rear right-hand side of the crane. On the rear left-hand side of the mobile crane a plaque was fitted which indicated:

"Warning, do not loosen bolts painted red until tyre is fully deflated".

There was no warning plaque fitted to the rear right-hand side of the mobile crane where Mr Butler was working.

4 On or about 28 February 2006, Mr Burdzy informed another of the defendant's employees, Geoffrey Owen, that the right-hand rear tyre was bald and required replacement. Mr Owen placed a telephone order for a replacement tyre with Allan Buden at St Mary's Tyre Service (NSW). On 1 March 2006, Terry Murray, at St Mary's Tyre Service, completed a field service request form for the replacement tyre which included the following details:

"Inspect. Ring back if tyre and wheel is still on unit".

5 The job of inspecting the mobile crane was assigned to Mr Butler. Mr Murray spoke with Mr Butler and confirmed that he was to inspect the vehicle. According to the Agreed Statement of Facts, Mr Murray did not expect Mr Butler to undertake any work on the mobile crane at Plasser's premises without calling him first. In addition, Mr Butler did not have a replacement tyre with him when he attended at the Plasser site and was not in a position to replace the tyre in situ as the inner portion of the split rim assemblage (the inner rim) was still attached to the hub of the mobile crane.

6 At the time of the accident, Mr Butler had received no training and no instruction and information in relation to the fitting of split rim and tyre assemblies from St Mary's Tyre Service. As an employee of the company, his main duties were to work on solid tyres that did not deflate. St Mary's Tyre Service also had no documented health and safety systems in place at that time. Rather, its safe work methods were ad hoc and relied principally upon safe work practices learned by senior staff through training and previous jobs in the industry. It nevertheless had an unwritten rule that inflated tyres should be deflated before any repair work was to be performed. This rule was reinforced orally and generally followed on the job. The company considered the replacement of tyres on split rim and tyre assemblies a job for two experienced men.

7 Mr Butler commenced employment with St Mary's Tyre Service on 6 October 2005 as a tyre fitter and was considered to be competent and experienced in his work, although no documented reference checks had been made by St Mary's Tyre Service prior to his employment to confirm Mr Butler's training or work experience.

8 Plasser had in place some occupational health and safety systems which included a contractor management system, together with an active occupational health and safety committee. It also had in place written safe work procedures for a range of activities undertaken at the factory, as well as a contract labour management procedure, a visitor safety procedure and safety management procedures. Its contractor management system, however, was not actively or effectively managed prior to and at the time of the accident. As a consequence, Mr Butler was able to commence work at Plasser's site without having first registered his arrival and without any site safety induction. No representative from Plasser, therefore, checked Mr Butler's credentials or queried the reason for his presence at the site, or provided any supervision. Further, although the 10 nuts which secured the inner and outer rims to the rear left-hand side of the vehicle were painted red, and the warning notice had been fitted to the rear left-hand side of the crane, these measures were not present with regard to the split rim and tyre assemblage attached to the rear right-hand side, which was where Mr Butler was working at the time of the accident.

9 These short background facts reveal the seriousness of the offence. An instruction issued to Mr Butler to inspect the vehicle was clearly deficient. There was no evidence adduced during the sentencing hearing as to the extent of the instruction. An instruction to inspect is capable of interpretation on many different levels. It may amount in the mind of the person receiving the instruction to no more than a visual inspection. It may, however, amount to something much more detailed, such as the removal of certain components of the item, the subject of the inspection. What can be gleaned from the evidence, and from the submissions of the parties, is that the instruction to inspect, whatever it was intended to convey and however Mr Butler understood it, did not extend to removing the tyre. This may be inferred from the fact that Mr Butler did not have a replacement tyre with him and could not have replaced the tyre because the inner rim was still attached to the hub of the crane.

10 A deficient instruction issued by another entity could have been remedied by Plasser had it had a procedure in place by which incoming contractors were registered upon arrival at its premises and their credentials checked and the reasons for their attendance properly ascertained. No such procedure was utilised at the time Mr Butler arrived at the site. As a result, Mr Butler, who clearly did not appreciate the dangers of working on the split rim and tyre assembly with the tyre inflated, was able to enter the site and commence work without making contact with any persons at the site and without any further instruction, information or supervision by Plasser as to the nature of the work he was to undertake.

11 Prior to the offence Plasser nevertheless did have in place general systems geared toward providing a safe workplace for workers. So much has been conceded by the prosecution. Some of the systems such as the Occupational Health and Safety Committee have already been referred to. A more detailed account appears in the affidavit of Allan Thomas Logan, the sales and marketing manager of Plasser. According to Mr Logan, Plasser has had in place since 2002 an occupational health and safety policy which underwent revision after 1 March 2006. The policy in its pre-1 March 2006 form had specific application to contractors, sub-contractors and visitors. Its Occupational Health and Safety Committee had been active for many years and performed many safety related functions which include assisting with the review of risk assessments, the review of accident and injury statistics and the review of quarterly workplace inspection reports. It facilitated the procedure for raising safety concerns by a process of referral from employees to supervisors to the Committee which in turn made recommendations to management. Prior to 1 March 2006 no issue had been raised with regard to the engagement by Plasser of external contractors.

12 Commencing in 2002 the Committee developed a draft occupational health and safety system manual. The manual, which is annexed to the affidavit, contains a number of comprehensive, well formulated safety procedures dealing with a number of matters including contract labour management. One particular procedure required the completion of a contractor safety plan and an induction to be completed by all contract labour employees prior to commencing work. These measures were not enforced with regard to Mr Butler. Since the accident the procedures were revised. The much improved current procedures require that all contractors engaged to work at Plasser must be approved by an authorised person. The authorised person must ensure that the contractor provides a safe work method statement containing the following matters:

· A description of and/or procedure for the work to be performed;
· any special qualifications, certificates, licenses or skills that are required;
· the relevant tools, equipment and PPE required to do the job safely;
· the relevant Standards or Codes; and
· identification of the hazards, risks and control measure for performing the work under the contract.

13 In addition, under the contractor management procedure the authorised person must also ensure that a contractor has current workers compensation and public liability insurance. The contractor must also be able to provide relevant documents on request. The procedure also requires safety inductions to be performed, site specific instructions to be given, compliance with a contractor safety plan and that the proper tools, equipment and PPE used by the contractor are in good order. With regard to the contractor safety plan the procedure requires that the plan must be completed by each contractor and include a risk assessment checklist to be completed by the contractor before the commencement of work. The plan is then to be filed in the occupational health and safety records folder kept in the defendant's purchasing department.

14 These measures, had they been implemented before 1 March 2006, may well have avoided Mr Butler's accident. Nevertheless the safety measures that were in place prior to the accident will be taken into account on sentence in mitigation of the objective seriousness of the offence.

15 The seriousness of the offence is also highlighted by the fact that the risk to safety occasioned by working on pneumatic tyres was well known in the industry in which Plasser operated. Plasser was aware of the risk by reason of the warning sign affixed to the crane on the left-hand side. It was conceded by Plasser in written submissions that the controls put in place by it prior to the offence to address the risk, were inadequate on the day of the offence. The failure to have in place adequate controls with which to address the risk, renders the risk reasonably foreseeable.

16 The consequences of the offence, reflected in Plasser's failures as particularised, was also likely to result in serious injury. In the circumstances of this case the very serious dangers of working on an inflated pneumatic tyre resulted in a fatality.

17 One simple expedient which was available to Plasser and perhaps could have avoided the risk would have been to place a sign containing an instruction to deflate the tyre before commencing work. A sign, in the same or similar terms to the warning sign affixed to the opposite side of the crane, may well have alerted Mr Butler to the dangers.

18 These matters provide further support for the conclusion that the offence was objectively serious.

19 General and specific deterrence are also necessary considerations which must be taken into account on sentence.

20 It is common for large machines such as cranes, dump trucks, aircraft etc. to have split rim and tyre assemblies. Proper maintenance of the assemblies requires carefully devised procedures so that the very serious hazards involved in the work are appropriately managed and the risks to safety avoided. The risks attendant upon working with split rim and tyre assemblies are well known to industry. The dangers of working on pneumatic tyres necessitates that measures be taken in the form of sustained and easily understood information, instruction, as well as adequate training. Failure to properly manage the risks may result in heavy penalties.

21 The defendant employs about 80 employees. It has been in operation for a considerable period of time, some 38 years. It is involved in the engineering and manufacturing of heavy machines for the rail industry, specifically the construction and maintenance of railway track. It seldom outsources contractors to perform work. In all the time the defendant has been operating within the industry it has never been prosecuted by WorkCover. The defendant has also implemented and revised its contractor management procedures, details of which have been earlier referred to. Despite these matters specific deterrence remains a significant factor to be taken into account in the sentencing process. This is because the defendant continues to outsource the maintenance of some of its machinery. St Mary's Tyre Service for example was engaged by the defendant on at least four prior occasions to refit the tyres on the mobile crane. That company is no longer the preferred supplier, and another company presently fulfils the function.

22 Plasser has no prior convictions. It therefore faces a maximum penalty of $550,000. The absence of prior convictions also entitles Plasser to some leniency not otherwise extended to an offender with prior convictions.

23 A plea of guilty was entered at an early stage as conceded by the prosecution. I propose therefore to assess an appropriate discount of penalty for the utilitarian value of the plea at 25 per cent. As a separate consideration to the utilitarian value Plasser is also entitled to leniency in recognition of the remorse shown by its plea.

24 The Court also takes into account in mitigation of penalty the additional safety measures implemented by Plasser after the accident. Some of these measures have already been referred to, such as the revised contractor management procedure. A draft visitor procedure, in place prior to the accident, was revised following the accident. It is similar in a number of respects to the procedure set out in the contract management procedure. Plasser also reviewed its purchasing procedures after the accident. Under the current procedures, prior to a proposed purchase of either product or services, all risks to safety are identified and addressed. New signage was also put in place on the rear right-hand side of the crane and ten new studs were fitted on the outer wheel rim of the right-hand rear wheel and painted red. On 31 March 2006 an external consultant was engaged for the purpose of conducting an occupational health and safety audit. As a result of the recommendations made by the external consultant a number of actions have been implemented by Plasser since 1 March 2006. These include counselling being offered to those employees affected by the events involving Mr Butler's death. Plasser also commenced an internal investigation into the circumstances of the fatal accident. All onsite contractors were contacted by mail and documentary evidence of OHS compliance was requested. A copy of Plasser's contractor management plan was also supplied. A number of risk assessments were also completed of various items of machinery including the mobile crane.

25 Plasser also cooperated with WorkCover during its investigation. It also made a donation in the sum of $500 on behalf of Mr Butler at his family's request to the Millennium Foundation in support of medical research. Plasser also contacted Mr Butler's mother to express its condolences and made enquiries as to how it could assist in funeral arrangements. Plasser has also demonstrated good corporate citizenship through the regular fostering of work experience programmes for young family members of staff and local and overseas graduates. Mr Logan on behalf of Plasser has expressed its deep regret and remorse for Mr Butler's death. Plasser has acknowledged the impact Mr Butler's death has had on his family.

26 All these matters will be taken into account in mitigation of the penalty to be imposed.

Penalty

27 In determining penalty against Plasser I have taken into account the objective seriousness of the offence, the maximum penalty, the factors in mitigation described above, and the absence of prior convictions. These factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 21A.

Orders

28 In Matter No IRC 257 of 2008 I make the following orders:

(1) The defendant Plasser Australia Pty Ltd is convicted of the offence;

(2) Plasser is fined $95,000 with a moiety to the prosecutor;

(3) Plasser is to pay the costs of the prosecutor as agreed or in the absence of agreement as assessed.

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LAST UPDATED:
27 May 2009