Inspector Karen Simpson v Wingruby Pty Ltd t-as Lithgow Tyre Service [2010] NSWIRComm 104 (13 August 2010)

Last Updated: 20 August 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Karen Simpson v Wingruby Pty Ltd t-as Lithgow Tyre Service [2010] NSWIRComm 104



FILE NUMBER(S):
IRC644

HEARING DATE(S):
22 July 2010

DATE OF JUDGMENT:
13 August 2010

PARTIES:
Inspector Karen Simpson (Prosecutor)
Wingruby Pty Ltd t/as Lithgow Tyre Service (Defendant)

CORAM:
Kavanagh J


CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 by defendant - early guilty plea - fatal injury to trainee tyre fitter - failure to provide safe system of work for particular task - task not risk assessed - general training and instruction had been provided to youth but inadequate supervision of task - failure to recognise poor condition of tyre rims nuts and bolts - foreseeability a factor - gravity of the potential risk - simple and straightforward steps to remedy the defects in the system available - general and specific deterrence - remorse shown and contrition expressed - evidence of ongoing corporate commitment to safe working - victim impact statements received - penalty

LEGAL REPRESENTATIVES
Mr M P Cahill of counsel (Prosecutor)
WorkCover Authority of New South Wales
Mr M L Shume of counsel (Defendant)
Middletons, Solicitors


CASES CITED:
Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201
Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Ferguson v Nelmac Pty Ltd Ferguson v Nelmac Pty Ltd (1999) 92 IR 188
Inspector Glass v Foamex Polystyrene [2004] NSWIRComm 100
Inspector Mulder v GRD Minproc Ltd [2008] NSWIRComm 82
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464
Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357
Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364
R v Gallagher (1991) 23 NSWLR 220
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR104
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994)
WorkCover Authority of NSW (Insp Ankucic) v McDonald’s Australia Ltd [2000] NSWIRComm 1123; (2000) 95 IR 383
WorkCover Authority (Inspector Barbosa) v Newstart 150 Pty Ltd t/a Style Wise Interiors [2002] NSWIRComm 64; (2002) 113 IR 78
WorkCover Authority (NSW) (Inspector Maddaford) v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21

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


TEXTS CITED:




JUDGMENT:

- 20 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Kavanagh J

Friday 13 August 2010

Matter No IRC 644 of 2009

INSPECTOR KAREN SIMPSON v WINGRUBY PTY LTD t/as LITHGOW TYRE SERVICE

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

JUDGMENT

[2010] NSWIRComm 104

1 This prosecution is brought by Inspector Karen Simpson of the WorkCover Authority of New South Wales against Wingruby Pty Limited t/as Lithgow Tyre Service (the defendant) under s8(1) of the Occupational Health and Safety Act 2000 (the Act) by way of an amended Application for Order (formally filed in Court).

2 It is alleged the defendant, on 7 May 2007, contravened s8(1) of the Act in that it failed to:

Ensure the health, safety and welfare at work of all its employees, and in particular, Scott Mason, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

In particular:

(a) The defendant failed to provide a safe system of work with respect to the fitting of tyres to two piece divided rim wheel and tyre assemblies used on forklift trucks in that:

(i) The defendant required its employees to inflate pneumatic tyres fitted to two piece divided rim wheel and tyre assemblies on its Beissbarth MS50IT Tyre Changer, being a tyre changing machine which was not fitted with a mechanical restraining device suitable for use during the inflation of pneumatic tyres fitted to two piece divided rim wheel and tyre assemblies of the type used on forklift trucks;

(ii) the defendant failed to provide a cage suitable for use by its employees when an employee(s) was inflating a pneumatic tyre after the fitting of that pneumatic tyre to a two piece divided rim wheel and tyre assemblies of the type used on forklift trucks.

(b) the defendant failed to ensure that its employees restrained two piece divided rim wheel and tyre assemblies, when inflating the tube/tyre after re-assembling a two piece rim of the type(s) used on forklift trucks following the replacement of the tube and/or tyre;

(c) The defendant failed to provide its employees with information and training regarding the risks associated with two piece divided rim wheel and tyre assemblies of the type used on forklift trucks as was necessary to ensure the health and safety of it employees, in that the defendant failed to ensure that:

(i) the defendant’s employees were provided with a written work method statement setting out a step by step process for the safe replacement of a pneumatic tyre on two piece divided rim wheel and tyre assemblies of the type used on forklift trucks, including a requirement to use a cage or mechanical restraint when inflating the tube/tyre after re-assembling a two piece rim of the type(s) used on forklift trucks;

(ii) the defendant’s employees were provided with information regarding the nature and extent of the risk of the two portions of a divided rim separating during inflation of the tube/tyre after re-assembling the two piece rims following the replacement of the tube and/or tyre due to failure of one or more of the nuts and or studs used to secure the two portions of such rims together;

(iii) the defendant’s employees were provided with information regarding the risk which flows from the stripping of threads when tightening nuts on threaded fasteners, such as the studs used to fasten the halves of a two piece rim, through the application of too much torque;

(iv) the defendant’s employees were provided with information and training that wheel nuts were to be tightened in accordance with the relevant manufacturers’ torque settings together with information concerning relevant manufacturers’ recommended torque settings;

(v) cages and/or other mechanical restraining devices were used during inflation of the type used on forklift trucks, including a requirement to use a cage or mechanical restraint when inflating the tube/tyre after re-assembling a two piece rim of the type(s) used on forklift trucks;

(d) The defendant failed to undertake a risk assessment which identified and considered the risks associated with the fitting of tyres to two piece divided rim wheel and tyre assemblies of the type used on forklift trucks.

(e) The defendant failed to provide such supervision as was necessary to ensure the health, safety and welfare at work of all its employees and in particular, Scott Mason in that the defendant failed to:

(i) ensure that Scott Mason undertook an inspection of the condition of nuts and studs for wear and tear prior to working on the two piece divided rim wheel and tyre assemblies of the type used on forklift trucks;

(ii) ensure that Scott Mason restrained two piece divided rim wheel and tyre assemblies used on forklift trucks prior to inflation.

(f) As a result of the abovementioned failures, Scott Mason was placed at risk of being struck by an exploding two piece divided rim wheel and tyre assemblies of the type used on forklift trucks and injured whilst he was inflating the pneumatic tyre that he had fitted to the subject rim in the course of his employment with the defendant.

(g) Further, as result of the abovementioned failures, Scott Mason was fatally injured.

3 The defendant pleads guilty to the charge.

4 Mr M P Cahill of Counsel, appeared for the prosecution and Mr M L Shume of Counsel, appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts, photographs, a Factual Inspection Report, the Prior Conviction Record of the company and a Victim's Impact Statement.

5 The defendant relied upon an affidavit of Mr Gregory Craig Nelson sworn 14 July 2010. A number of relevant documents were attached to the affidavit including documents in relation to the existing relevant safe work procedures, the upgrading of the system of work including the refined cage system to be used to pump up tyres.

6 The Agreed Statement of Facts (as amended) relevantly reads:

7. At all material times Wingruby was an employer and employed Scott Mason, Ben Futcher, Mark Langbein, Tim Bennett, Lee Nelson and Trudy Anderson.

8. Scott Mason (dob: . . .) had commenced work with Wingruby as a trainee tyre fitter on 22 January 2007.

9. At all material times Wingruby operated Lithgow Tyre Services as a business that provided tyre fitting, wheel balancing, wheel alignment, brake repairs, tyre repairs, magnetic particle testing, sand blasting and brake machining services.

Repair of Forklift Tyre

10. John Swane was given a red Clark 20 model forklift by Tony Inzitari (Junior) in early April 2007. Tony Inzitari had owned and operated the forklift for many years prior to April 2007. However, at the time that Tony Inzitari gave the forklift to John Swane, the forklift had not been in use for about 4 or 5 years and had been sitting in an open paddock.

11. John Swane arranged for a tilt tray to pick up the forklift and transport it to his property, as the forklift was not in working order. John Swane then commenced repair of the forklift, including replacing the fuel filter and cleaning out the carburettor and the points. When inspecting the forklift John Swane observed that the steering tyres were bald and one had a puncture. The front tyres had approximately 15% -20% tread and the rear tyres were both bald with one tyre half inflated and the other tyre punctured.

12. Each of the four (4) wheel assemblies consisted of a tyre on a “divided rim assembly”. A “divided rim” consists of two segments secured together by a ring of studs and nuts. In turn, a divided rim assembly is secured or attached to a hub on a vehicle by a ring of studs and nuts. The two rings of nuts and studs are concentric, with the outer ring securing the rim segments together and the inner ring the wheel assembly to the hub on the vehicle.

13. In mid April 2007 John Swane removed two of the wheel assemblies from the forklift and took them to Lithgow Tyre Service, requesting that they replace the tyres.

14. John Swane attended Lithgow Tyre Service on 27 April 2007, however the work had not been completed as the new tyres had not arrived.

Incident

15. On 7 May 2007 Ben Futcher, Manager was in charge of Lithgow Tyre Service and Mark Langbein was the Leading Hand in the workshop. Ben Futcher and Trudy Anderson, the office manager, were working in the office with Ben Futcher going in and out of the workshop.

16. After “smoko”, Scott Mason and Mark Langbein commenced work replacing the tyre on one of the two forklift rims in the first service bay in the workshop. The tyres had been removed from both of these rims sometime prior to 7 May 2007 and the rims had been left in the workshop awaiting arrival of suitable replacement tyres.

17. Mark Langbein started by removing a couple of the nuts from one of the forklift rims.

18. At about this time, a customer dropped off a tractor tyre and rim assembly so that the tyre could be replaced.

19. Ben Futcher, who was in the workshop at the time, asked Tim Bennett to assist him with the tractor tyre and they moved it into the third bay in the workshop where they left the tractor tyre and rim assembly for Mark Langbein to work on.

20. After Ben Futcher and Tim Bennett had manoeuvred the tractor tyre and rim assembly into the third work bay, Tim Bennett returned to doing a wheel alignment on a car and Ben Futcher went back to the office.

21. Mark Langbein, who had seen the tractor tyre and rim assembly arrive at the workshop and who was “tasked” to replace that tyre, asked Scott Mason to takeover working on the forklift rims so that he could attend to replacing the tractor tyre. Mark Langbein then left Scott Mason in the first work bay to continue work on the two forklift rims.

22. As Ben Futcher walked back through the workshop on his way to the office, he saw Scott Mason working on the forklift rim in the first work bay– the bay closest to the office.

23. When spoken to after the event, Ben Futcher stated that Scott Mason took this particular job “off his own” of working on the forklift rims.

24. Sometime later, a delivery of “anti-seize” and WD40 was received in the office. Ben Futcher took the anti-seize to the workshop, he opened a can of the anti-seize, joked with Tim Bennett and Scott Mason about the fact that the new can of anti-seize was half empty, told Scott Mason to use plenty of anti-seize on the studs of the forklift rims and returned to the office.

25. "Anti-seize" is used as a lubricant and anti rusting agent on studs prior to tightening them up on the rim so that they can be easily tightened on the studs and, later, removed.

26. Some time later Mark Langbein saw Scott Mason with one of the two-piece forklift rims, fitted with a tyre, on the older of the two Beissbarth tyre-fitting machines in the workshop. Mark Langbein observed that Scott Mason had done up the nuts on the rim and was using the tyre fitting machine to put air into the tyre on the forklift rim. Scott Mason asked Mark Langbein how much air to put into the tyre and Mark Langbein recalled after the event he thought that he told Scott Mason to put in 100psi.

27. Rogier Stoffels (a customer), Trudy Anderson and Ben Futcher, were in the office, Jim Thompson (a customer), was sitting outside the workshop, and Tim Bennett together with Mark Langbein were in the workshop when they all heard a loud noise originating in the workshop. Ben Futcher described the noise like metal striking the ground.

28. When he heard the loud noise, Mark Langbein turned to see one side of a forklift rim hitting the roof and the other half flying out of the shed. Mark Langbein ran over to the first bay and saw Scott Mason lying facedown on the floor. He went over to Scott Mason and felt for a pulse.

29. Tim Bennett, who was backing a car off a wheel alignment hoist and out of the workshop, stated that he thought the loud noise sounded like a tyre bead popping into place. As Tim Bennett could not see into the workshop from where he was situated, he drove the car forward into the workshop. As he drove the car forward, Tim Bennett saw Scott Mason lying on the workshop floor.

30. Ben Futcher, Roger Stoffels and Jim Thompson also entered the workshop and saw Scott Mason on the workshop floor.

31. Ben Futcher then ran over to Trudy Anderson and told her to call an ambulance.

32. Mark Langbein moved the rims and sat them over to the side to gain better access to Scott Mason. Mark Langbein removed a rim that was situated right beside Scott Mason’s head.

33. The ambulance arrived at the scene shortly thereafter and following stabilisation on site, Scott Mason was conveyed to Lithgow Hospital. Subsequently, Scott Mason was airlifted to Nepean Hospital where he later died as a result of the injuries sustained in the subject incident.

Systems in place prior to incident

34. For a period of approximately two years prior to the subject incident, Wingruby retained the services of Eric Young Consulting Pty Ltd, an OH&S consultancy.

35. The consultancy provided Greg Nelson with advice and documentation used in the development of Wingruby’s formal OH&S management systems, including an OH&S & Injury Management System manual, written safe work method statements [which are described as a “Risk Assessment/Work Instruction”] and other documentation such as site and tool inspection documentation OH&S meeting records, and training attendance records. The consultancy also provided some training including formal induction training, manual handling training and training with respect to written safe work procedures.

36. However Eric Young, the principal of Eric Young Consulting Pty Ltd, stated that he had only done general risks assessments for changing tyres for Wingruby. He stated that there were two such risk assessments: the first for smaller tyres; and the second for larger tyres, including split rims with locking rings. Eric Young further stated that his consultancy had not been retained by Wingruby to undertake or develop a risk assessment with respect to two-piece divided rims for forklifts. Yet, Eric Young also stated that the Lithgow Tyre Service safe work method statement dated 5 May 2004 and bearing document number LTS SWP 002, of which he was the author, would have applied to the subject wheel and tyre assembly.

37. When spoken to after the event Greg Nelson, Ben Futcher, Mark Langbein and Tim Bennett all stated that Wingruby had in place a safe work method with respect to fitting a new tyre to a divided two-piece rim, including a divided two-piece forklift rim of the type involved in the subject incident.

38. Further, Wingruby produced a written safe work method statement, dated 5 May 2004, titled “Lithgow Tyre Service - Risk Assessment/Work Instruction” document number LTS SWP 002, for a task described as “Tyre Replacement.”

39. When interviewed after the event, Ben Futcher stated that Wingruby provided the written work procedure for changing industrial tyres in general, including two-piece divided forklift rims of the type involved in the incident.

40 However, when interviewed, Greg Nelson also stated that the written safe work method statement produced from Wingruby’s records applied only to “split rim” assemblies and not to two piece divided rims of the kind involved in the subject incident.

41. Greg Nelson also stated that employees were trained to perform risk assessments with respect to each type of rim on which they worked, including two-piece divided rims of the type involved in the subject incident. These risk assessments were to be unwritten risk assessments performed informally on the job.

42. Further, Greg Nelson, Ben Futcher, Mark Langbein and Tim Bennett each stated that training with respect to the safe working procedures and the risk assessment procedures to be followed when fitting tyres, including the fitting of tyres to two piece divided rims of the kind involved in the subject incident, was provided informally on the job. In particular, Greg Nelson also stated that on three or four occasions Scott Mason had changed tyres on two-piece divided rims whilst he was present.

43. Where a pneumatic tyre is repaired or replaced on a two piece divided rim, there is a risk of an explosive release of air upon inflation. Tyres of the subject kind operate between 80-100psi.The greater the pressure to which a tyre is inflated the greater the force to be released upon failure of the tyre and /or rim.

44. In the case of two-piece divided rims, the risk of an explosion is greater because the nuts and/or studs can give way as the pressure increases, allowing the two halves of the rim to separate. Where the nuts and/or studs fail, the separation of the two halves can occur with explosive force.

45. As damage to the threads on the nuts and studs increases the risk of failure, the following are factors that have been identified as increasing the risk of two piece divided rims of the type involved in the subject incident failing:

· cross threading
· stripping of threads
· corrosion of threads
· contamination of the threads
· other damage.

46. When spoken to after the event, Greg Nelson stated that, when working with Scott Mason on a two piece divided forklift rim, he had shown Scott Mason how to identify worn studs and nuts. Greg Nelson also stated that Scott Mason had been trained not to fit tyres where worn nuts and studs had been identified and to report the damage.

47. Further, the threads on the nuts may be damaged by applying too much torque when tightening the nuts.

48. The nuts on the subject rim were examined after the event and appeared to be consistent with 7/16” Grade 5 UNF nuts. Upon examination, a total of eight nuts were located with the majority of the internal threads either worn or stripped. Out of the eight nuts examined, only three of the nuts fitted the studs on the split adequately. The remaining five nuts were found to be loose with very little thread left to engage in the stud threads.

49. During the examination of the outer half rim, it was found that there were 11 studs fitted with one missing from the 12 in total. The stud hole of the missing stud was encrusted with scale and dirt indicating that a stud had not been fitted for a long period.

50. The studs were examined with parts of stripped threads located on three of the 11 studs. Further examination of the studs revealed that another three of the studs may not have had any nuts installed for some time due to the coating of dirt around the threads. There is no evidence that the stripping of the nuts was caused by Scott Mason.

51. Ajax Engineered Fasteners - a manufacturer of threaded fasteners for use in automotives and industry, including both bolts and nuts of the kind used to fasten together the two portions of two piece divided rims of the type used on forklifts, provide recommended torque settings for the level of torque to be applied when tightening threaded fasteners. These recommended levels of torque are intended to reduce the risk of the thread being stripped from the fasteners whilst they are being tightened. For example, Ajax Engineered Fasteners publishes the Ajax Threaded Fastener Handbook in which the recommended torque settings for their products may be found. According to the Ajax Fastener Handbook, the risk of damage to the thread is increased when anti-seize is used and the level of torque used when tightening threaded fasteners should be decreased when anti-seize is used. The Ajax Threaded Handbook also states that the appropriate level of torque to be applied to 7/16” Grade 5 UNF fastener manufactured by Ajax is 33.6lbft. “7/16”” refers to the size of the fastener; “Grade 5” refers to an international standard relating to the hardness of the steel used in the manufacture of the subject fastener; and “UNF” refers to the design of the thread. “Grade 5” nuts are made from hardened steel.

52. The defendant had available for its employees in the workshop a Njoy Universal Tyre Fitment Guide (Njoy Guide) for passenger, soft road, four wheel drive and light commercial vehicles. The Njoy Guide contains general reference material for tyre fitting including torque settings of nuts and stud bolts. However the defendant did not supply its employees with information concerning the need to have regard to the manufacturer’s recommended torque settings and/or the hardness of the materials from which threaded fasteners are manufactured when identifying or determining the appropriate level of torque to be applied when tightening threaded fasteners, such as the bolts or studs and nuts used to fasten the two portions of the two piece divided rims of the type used on forklift trucks. Neither Mr Nelson nor any other employee of the defendant had expertise in metallurgy or any other field related to the hardness of materials.

53. A torque wrench and extension fitted with an 11/16” socket was located in the area in which the deceased was working on the rims and seized by the Police. When examined the torque wrench was found to be set at a torque of 88.5lbft.

54. Similarly, a 1/2inch drive air impact wrench, fitted with 7/16” socket, was also located in the area in which the deceased was working on the rims and seized by the Police. When located, the air impact wrench was not connected to an air hose but, an air hose was connected to an air outlet on the front wall between the first and second work bays.

55. When examined the air impact wrench was set on the highest of 4 torque settings.

56. When interviewed after the event Greg Nelson stated that Wingruby’s practice was for the air impact wrench to be set on the lowest level.

57. Greg Nelson also stated Scott Mason had been instructed with respect to the tightening of the nuts that, when re-assembling a two piece divided rim of the type involved in the subject accident:

“Do the nuts up firm on a low setting with the impact wrench and check with the tension wrench or bar because when you do it up you are holding it and doing the nuts up firm.”

58. In these regards, no training records were produced by Wingruby.

59. Prior to and at the time of the subject incident Wingruby provided a tyre cage in its workshop and required its employees to inflate larger tyres in that cage.

60. Wingruby did not require that any cage be used when inflating the tyres on such assemblies following the repair or replacement of tyres. Due to the size of the gaps in the cage provided by Wingruby for use by its employees when inflating tyres on other types of rims, the cage was not suitable for use with tyre and rim assemblies of the size involved in the subject incident.

61. Further, prior to and at the time of the subject incident, it was the practice, when inflating tyres on two piece divided rims of the type involved in the subject incident to inflate the tyres with the tyre and rim assembly resting on the top of a tyre fitting machine located in the workshop, known as a Beissbarth “MS 50 IT Tyre Changer”. This was the machine on which Mark Langbein observed Scott Mason inflating the subject two piece divided rim and tyre assembly just prior to the subject incident and it was the machine Scott Mason was trained to use.

62. However, this machine was not designed to “hold” rim and tyre assemblies of the size and design involved in the subject incident and, although the machine was fitted with an inertia reel style tyre restraint, it could not be used to secure rim and tyre assemblies of the size and design involved in the subject accident whilst those tyres were being inflated. Greg Nelson stated after the incident that Scott Mason was trained to use the restraining device on the machine with split rim tyres and not two-piece divided rims of the type involved in the subject incident.

Investigation of the Incident

63. On 7 May 2007, Inspector Ken Evans attended the site and made observations contained in a Factual Inspection Report dated 10 May 2007 which is annexed and marked ‘ A ’.

64. On 7 May 2007, whilst at the site Inspector Evans took a number of photographs which are annexed and marked ‘ B.

65. On 8 May 2007, Inspector Karen Simpson issued Wingruby an Improvement Notice (No 7-130370) with respect to employees being “exposed to risks to their health and safety when changing forklift tyres that have a two piece wheel assembly when the pieces separate under pressure when tube being inflated”. Improvement Notice No 7-130370 is annexed and marked “ C “.

Systems of work after the incident

66. After the incident Wingruby stopped performing repairs and tyre changes on tyre and rim assemblies of the type involved in the incident.

The Defendant’s Criminal History

67. The defendant has no criminal history.

Relevant Principles

In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours’ view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(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).

7 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]).

8 Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR104, correctly, given the consideration in Markarian, recognised this “instinctive synthesis” approach to sentencing saying:

[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 element 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.

9 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
10 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]:

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 ...

11 As at the date of the charge, 7 May 2007, the defendant employed the late Scott Mason as a trainee tyre fitter. Mr Mason was 18 years of age. He commenced work with the defendant on 22 January 2007 and had worked for the defendant for some 10 weeks when on 7 May 2007, he sustained fatal injuries when a two piece composite forklift rim and pneumatic tyre assembly exploded while he was inflating it. It was the force of the exploding rim which struck and killed Mr Mason.

12 It is the prosecution's case that:
· The defendant failed to ensure that its employees restrained two piece composite rim and tyre assemblies of the type during inflation – despite the fact that the pneumatic tyres on such assemblies were to be inflated to between about 90 and 100 psi [i.e. pounds per square inch];
· The defendant failed to provide its employees, including Mr Mason, with a safe system of work with respect to the fitting of tyres to two piece divided rim assemblies of the type used on forklift trucks in that the defendant required its employees to inflate newly fitted [and/or re-fitted] pneumatic tyres on rims of the subject type on the defendant’s Beissbarth Tyre Changing Machine when that machine was not fitted with a restraining device suitable for use with that type of rim and/or the defendant did not provide a [tyre restraint] cage that was suitable for use with rims of the type;
· Mr Mason had received little, if any effective, training or instruction relevant to the work that he was performing at the time of the subject incident prior to the incident; and
· Mr Mason was inadequately supervised on the day of the subject incident.

Relevance is placed on the above facts by the prosecution as indicative of the breadth of the offence.

13 The defendant provided its employees with a “generic” safe work method statement. However, that safe work method contained little, if any, information relevant to the task, namely: repairing a tyre that was in a two piece composite frame. Mr Futcher, the Manager, who allocated Mr Mason to the job agreed his trainee was not yet competent to perform the task without close supervision. After the job was started, Mr Mason moved to another task. Mark Langbein, the supervisor, also began work with Mr Mason but was later taken off the job and assigned to a different task. Mr Mason continued working on the replacement of the tyre with the two piece rims without supervision.

14 Mr Mason had been given on-the-job training generally as to the skills needed for efficient tyre repair but the training was undocumented and informal in nature; no records were made or maintained with respect to the assessed training; and no records were made or maintained with respect to Mr Mason’s competencies. These failures were in breach of the defendant's own written occupational health and safety plan, in operation as at the relevant date.

15 Further, the condition of the rims of the particular tyre were, on examination after the incident, rusty and one of the studs attaching the rims was missing. The prosecution submitted the condition of the tyre and rims should have caused a question to be raised by the experienced tyre fitters as to whether the work could ever have been performed safely.

16 An increased responsibility attaches to the employment of inexperienced young adults. In Inspector Mulder v GRD Minproc Ltd [2008] NSWIRComm 82, this Court observed at [14]:

The defendant carries an additional burden of responsibility for ensuring the safety of young and inexperienced employees on its worksite and this is reflected in the seriousness of the offence. In WorkCover Authority of NSW (Inspector Maddaford) v Coleman ([2004] NSWIRComm 317; 2004) 138 IR 21, the Full Bench said at [96]:

. . . we wish to highlight the responsibilities that are associated with the employment of young people, who are for the most part industrially inexperienced and particularly vulnerable. . . . We note and adopt in this regard what was said by the court in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 1123; (2000) 95 IR 383 (at [230]):

... the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, ... must enhance the seriousness of the offence.

As to the vulnerability of young workers see also: WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Style Wise Interiors) [2002] NSWIRComm 64; (2002) 113 IR 78 at [100]; Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394; WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas Denson; JB Metal Roofing Pty Limited and Garry James Denson [2007] NSWIRComm 119 at [64]- [65].

Similarly, in WorkCover Authority (Inspector Barbosa) v Newstart 150 Pty Ltd t/a Stylewise Interiors [2002] NSWIRComm 64; (2002) 113 IR 78, Walton J, Vice-President observed at [100]:

In my view, the presence of young and inexperienced persons in the workforce gives rise to an increased responsibility of the part of an employer to ensure adequate training is provided, particularly as to matters concerning the occupational health and safety of those persons.

17 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 Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610. On the issue of foreseeability, the Full Bench stated at [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.

18 It was reasonably foreseeable, without there being in place a system to ensure the appropriate fixing of the tyre (be it by placing it in a cage or otherwise protecting it), and in a circumstance where the security of the threads on the nuts fixing the rims to the wheel was under challenge, and where one of the screws was not even attached that, with the pumping into the tyre of pressure, the rims could dislodge. Leaving a 10 week trainee unsupervised to perform this task was, in the circumstances, exposing the trainee to a foreseeable risk.

19 Further, as said by Walton J, Vice-President in WorkCover Authority of NSW (Insp Ankucic) v McDonald’s Australia Ltd [2000] NSWIRComm 1123; (2000) 95 IR 383 (at 452):

In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations operating enterprises with similar features to the necessity of vigilantly ensuring the safety of young and inexperienced workers.

(as approved by the Full Bench in WorkCover Authority (NSW) (Inspector Maddaford v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21 at [96]).

This type of work has always been sought by young males and this incident reminds that great care must be taken by their employers in supervising and training young inexperienced workers.

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. A cage has been designed to hold in tyres when they are being pressurised. The type of tyre shape is no longer done on site but rather sent out. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practical.

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 Limited and WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). The potential risk of significant injury or death became a reality. There was a high risk to the safety of any employee being required to work on a tyre and apply pressure to it in a circumstance where the tyre was not affixed and where the condition of the attaching screws and nuts were under challenge.

22 This was a serious offence.

23 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.

24 The defendant continues to operate in the tyre industry. It employs up to eight persons in the fitting business. An element of specific deterrence is to be included in the penalty. A rigorous approach is needed in these areas by all employers conducting dangerous, but industrially necessary, operations and an element of general deterrence is also necessary in the consideration as to penalty. The risks associated with applying pressure to double rimmed tyres, while not recorded, was known to the defendant and is known within the industry. This serious incident is a reminder to all in the tyre industry that what may be seen as a small, but risky, task if not handled with great care can have the most serious of consequences.

25 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] NSWCCA 131; (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)).

26 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; 115 ACrimR104). The defendant is 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.

27 In Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201 at [62] Boland J President said:

A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both).

Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides that “remorse” may taken into account as a mitigating fact if and only if:

“...the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).”

28 I am satisfied Mr Nelson has accepted responsibility for failing to have in place a proper system of work for the task as well as the failure to properly supervise and train a young employee with the skills and care to perform the tasks required of him. I am further satisfied the defendant, a small family company, through its plea of guilty and by ensuring safe systems of work are now in place, acknowledge the seriousness of this offence. The company provided some assistance to the family to make reparation.

Victim Impact Statements
29 The court has received victim impact statements from the mother of the deceased, Rhonda Mason, and his father, Richard Mason, in accordance with Division 2 of Part 3 of the Crimes (Sentencing Procedure) Act 1999. The approach by the Court to this evidence is that stated by Boland J in Inspector Glass v Foamex Polystyrene [2004] NSWIRComm 100 at [43]:

The Court extends its sympathy to Mr and Mrs Crabb and their daughter Amanda and acknowledges the terrible impact that Benjamin's death has had on them and which they are never likely to fully overcome. I am constrained, however, from taking into account the contents of the victim impact statements in coming to a conclusion as to what is the appropriate sentence in this case: R v Previtera; R v Mansour. The fact, however, that the Court is required in the case of a death, to receive a victim impact statement given by a family victim and acknowledge its receipt, and that the Court may make any comment on it that the Court considers appropriate, may help in releasing some of the family's grief and, importantly, it assists this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace.

I accept this has been a devastating experience to Mr Mason's family. A young man, of whom the family were so proud, cut down in the prime of life.

30 I have found this was a serious offence but I also take into account the subjective elements placed before me. I note this is not a worksite where there was no system of work although this task was not recognised sufficiently in the system nor risk assessed. However, the defendant had an on-going commitment to safe working and had paid a professional occupational health and safety consultant on a continuing basis. That person regularly held OHS meetings on site; conducted regular inspections on site; advised the company of the ongoing development of its existing safe work systems. The employees had input into the workplace systems designed to ensure safe working through shop floor meetings held on site. This was a site where work safety had been given a priority. This defendant had in fact one of the most continuous occupational health and safety review systems inside a small workshop that the court has reviewed. Such commitment is to its credit. But the incident provides a warning even to the most careful of employers.

31 Further, this is a small family company which provides the employment so necessary in NSW country areas. It has always accepted its community responsibility and has always had a commitment to training young people. All of the above put the defendant into the category of an employer with a fine industrial record. It receives in the circumstances mitigation as to penalty although the court keeps in mind the seriousness of the offence (Ferguson v Nelmac Pty Ltd Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 (at 209-210)).

32 The defendant has no prior convictions, therefore, the maximum penalty is $550,000. Although there is no request for financial consideration in mitigation this, as has been acknowledged, is a small family business in a country town not a large industrial operation. The company has limited turnover but in that context has put emphasis on safe working, has consistently spent monies in the design and upgrade of its work systems and has met its community obligations in providing paid work for young men in the district.

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

1. In Matter No IRC644 of 2009, I find the defendant guilty of the offence as charged.

2. The defendant is fined in the sum of $60,000 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:
20 August 2010