Inspector Przibilla v Hyne & Son Pty Limited [2004] NSWIRComm 384

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Przibilla v Hyne & Son Pty Limited [2004] NSWIRComm 384 PROSECUTOR Inspector Craig Przibilla PARTIES : DEFENDANT Hyne & Son Pty Limited FILE NUMBER: IRC 1954 of 2004 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 - Guilty plea - Manufacturing industry - Employee suffered severe injuries when his leg became pinned under a traverser - Consistency in sentencing - Foreseeability - Offence proven - Penalty imposed. LEGISLATION CITED : Fines Act 1996 Occupational Health and Safety Act 2000 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Inspector Craig Przibilla v Hindmarsh & Roddy Engineering Pty Limited [2004] NSWIRComm 383 CASES CITED : Inspector Ritchie Green v The Crown in the Right of the State of New South Wales (Department of Commerce, formerly the Department of Public Works and Services) [2004] NSWIRComm 64 Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 Page v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102 Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 WorkCover (NSW) v Warman International Ltd (2001) 105 IR 236 HEARING DATES: 11/25/2004 DATE OF JUDGMENT: 12/10/2004

PROSECUTOR Mr A T Britt of counsel Solicitor: Ms A Hecimovic Dibbs Barker Gosling LEGAL REPRESENTATIVES: DEFENDANT Mr J V Agius (SC) Solicitor: Ms L Aitken Minter Ellison

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J

Friday 10 December 2004

Matter No IRC 1954 of 2004

INSPECTOR CRAIG PRZIBILLA v HYNE & SON PTY LTD

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

JUDGMENT [2004] NSWIRComm 384

1 Hyne & Son Pty Ltd ("the defendant") owned and operated a timber mill business at Tumbarumba in the State. On 27 July 2002, Mitchell Anthony Hulm, a casual tradesman's assistant employed by Hindmarsh & Roddy Engineering Pty Ltd, was performing work in relation to the maintenance and relocation of hobs and rails at the defendant's mill. Whilst performing the work, Mr Hulm was struck by a Traverser and suffered serious injuries to his right leg.

2 The defendant was subsequently prosecuted by Inspector Craig Przibilla of the WorkCover Authority of New South Wales for breach of s 8(2) of the Occupational Health and Safety Act 2000. Section 8(2) provides: 2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

3 In the application for order it was alleged that the defendant failed to: Ensure that people (other than employees of the Defendant) in particular, Mr Mitchell Anthony Hulm ("Mr Hulm"), were not exposed to risks to their health or safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work, contrary to section 8(2) of the Occupational Health and Safety Act 2000.

4 The particulars of the charge were that on 27 July 2002, at the said site, the defendant failed: 1 to ensure that systems of work for the maintenance and relocation of hobs and rails, and the working environment, were safe and without risks to health; 2 to provide adequate instruction and supervision in relation to the maintenance and relocation of hobs and rails, that was necessary to ensure the health and safety of people other than the employees of the Defendant, in particular, Mr Hulm. The defendant pleaded guilty to the charge. It is to be noted that Mr Hulm's employer also pleaded guilty to a charge under s 8(1) of the Act and was fined an amount of $110,500: Inspector Craig Przibilla v Hindmarsh & Roddy Engineering Pty Limited [2004] NSWIRComm 383.

The evidence

5 In the sentencing hearing an agreed statement of facts was tendered into evidence together with colour photographs of the site where the incident occurred and of aspects of the incident. A certificate of prior convictions indicated that the defendant had one prior conviction under s 8(2) of the Act that was dealt with in the Chief Industrial Magistrate's Court.

6 For the defendant an affidavit of David Lightbody was read. Mr Lightbody is the Corporate Operational Risk Manager for the defendant. 7 The evidence from the agreed statement of facts was that on the day of the accident, Mr Hulm was aged 20 years. Before commencing with Roddy & Hindmarsh, Mr Hulm worked as a tradesman's assistant for about 15 months with another employer. He had basic knowledge of metal work, including welding, measuring, cutting using oxy-acetylene equipment, and general tradesperson work. The work Mr Hulm was to undertake included the realignment of railway tracks within the Cooling Shed so as the railway tracks therein would align with the railway tracks within the Kiln Area. This involved Mr Hulm welding cleats used to fix the rails into position following the re-alignment of the railway tracks.

8 The Cooling Shed was opposite the Kiln Area. The Cooling Shed was separated from the Kiln by a rail track that ran within a recessed traverser bay. A Traverser ran east-west upon the rail track within the Traverser Bay. Mounted on the Traverser, on fixed rail tracks, was an electric powered trolley. Following heat treatment in the Kilns, the timber was transported by trolley, to the Cooling Shed. The Traverser measured approximately 7 metres in length x 3.1 metres wide x 2.8 metres high. The trolley measured approximately 5 metres in length x 1.2 metres wide x 500 millimetres high. The Traverser Bay measured approximately 60 metres in length x 7 metres wide and 450 millimetres below the platform heights of both the Cooling Shed and the Kilns. Prior to 27 July 2002, the Traverser did not have any warning beepers or flashing lights fitted to or functioning on it. However, the Traverser did have a housing mechanism for such devices fixed in the centre and above the operating platform of the Traverser.

9 Under the Heading 'Supervision' the agreed statement of facts conveyed the following information: 35 The work commenced at the site on or about 25 July 2002 (" commencement date "). Mr Hulm reported for work at the site on the commencement date. Mr Smith [a casual tradesman employed by Roddy and Hindmarsh] reported for work at the site on 27 July 2002. 36 Mr Hobson [the defendant's Dry Operations Manager] had commenced employment with the Defendant on or about 26 June 2002, approximately one month prior to the day of the accident. 37 The Defendant had a requirement whereby all tradespersons and contractors were to undertake a general site induction and an area specific induction prior to commencing work at the site. 38 The general induction training provided by the Defendant at the time of the accident, among other things: (a) included information on site isolation and provided that no work was to be carried out unless relevant area/plant is effectively isolated; and (b) stated that a worker must personally isolate and tag all energy sources before any work, enter any machinery, or perform maintenance tasks. 39 Following the induction, the Defendant provides a questionnaire that all persons must answer correctly. If the questionnaire is not answered correctly, remedial training is given prior to commencing on site. 40 At all material times, it was Mr Hobson's responsibility, on behalf of the Defendant, to conduct the area specific induction for Hindmarsh's [Roddy and Hindmarsh] employees including Mr Hulm. 41 At all material times, it was Mr Hobson's responsibility, on behalf of the Defendant, to ensure occupational health and safety within the Kiln Area at the site. 42 At all material times, Mr Hobson had not been advised by the Defendant that he was responsible for conducting area specific induction to persons prior to them commencing work at the site. 43 On or about 15 June 2002, Mr Bruce Wilesmith presented the Defendant's general site induction at the site to Mr Hulm. Mr Hulm successfully completed the general site induction by completing all answers to the questionnaire correctly. 44 On or about 29 June 2002, Ms Christine Johnstone presented the Defendant's general site induction at the site to Mr Smith. Mr Smith successfully completed the general site induction by completing all answers to the questionnaire correctly. 45 At all material times Mr Hulm did not undergo a specific Kiln Area induction. 46 On the commencement date, Mr Roddy [Francis Clark Roddy was a director of Roddy and Hindmarsh] verbally instructed Mr Hulm as to the work that he was to undertake in the Kiln Area. Throughout that day, Mr Roddy worked with Mr Hulm providing supervision and on-the-job training to Mr Hulm as he undertook the work. 47 On 26 July 2002, Mr Roddy did not attend the site. Mr Hulm performed the work at the site unsupervised. 48 On 27 July 2002, the day of the accident, Mr Smith and Mr Hulm were undertaking the work at the site however, Mr Smith did not supervise Mr Hulm, nor was he directed to do so by Mr Roddy. 49 At all material times, Mr Hobson, on behalf of the Defendant, did not supervise Mr Roddy, Mr Hulm or Mr Smith while they undertook the work near to the Traverser while it was operating. 50 At all material times, the Defendant thought Hindmarsh was providing supervision to Mr Hulm, and its other employees, 51 The supervision of the Traverser operators was the responsibility of Mr Hobson. On the day of the accident, 27 July 2002, Mr Hobson was not present at the site as it was a Saturday and Mr Hobson did not work on weekends. 52 At all material times on the day of the accident, the Defendant did not supervise its Traverser operators being Mr Tuominen [Kiln Attendant employed by the defendant] and Mr Peel [forklift driver employed by the defendant]. The Defendant considered Mr Tuominen to be an experienced Traverser operator who required minimal supervision when operating the Traverser.

10 Under the heading 'System of Work' the agreed statement of facts stated: 53 The Agreement between Mr Roddy and the Defendant did not include a risk assessment, a Safe Work Method Statement or a discussion on how to safely perform the work. 54 At all material times, full and normal Kiln production and operations continued including, the operation of the Traverser and its trolley. 55 At all material times, the operation of the Traverser and the on-going operation in the Kiln Area was not identified as a risk in relation to the undertaking of the work by Mr Hulm, by either Mr Hobson, on behalf of the Defendant, or Mr Roddy. 56 At all material times the Defendant did not put in place any controls to separate the work from operation of the Traverser or normal Kiln production and operations. However, the Defendant provided generic information about safety issues, including isolation of equipment, in its General Site Induction training given to employees and contractors as discussed at paragraph 38 above. 57 Mr Roddy and Tim Smith, an employee of Hindmarsh, carried isolation tags when working on the site, they were aware they could isolate plant and equipment at the site and had done so before. Mr Smith was working on the site on the day of the accident. Mr Roddy was not working on the site on the day of the accident. 58 In Mr Smith's Witness Statement dated 23 September 2002, Mr Smith was asked questions in relation to isolation of the Traverser and provided the following answers to those questions: "Q53: Why was the Traverser operating when you were undertaking maintenance work? A: They got to keep the Traverser going to keep the Mill going. We didn't ask them to stop the Traverser, they never offered either. Hindmarsh and Roddy have isolation tags to isolate plant at the Mill when they need to. Q54: Could you have isolated the Traverser? A: Yes, I suppose I could of. Q55: What was the procedure for you to isolate the Traverser if you chose to? A: I don't know what the procedure actually is. I would have found the isolation switch for the motor and tagged it out using an Isolation/Danger tag. I always try to have isolation tags with me. I would have had them in my toolbox or in the glove box to the ute." 59 At all material times, the Defendant assumed that Hindmarsh would have implemented controls to separate the work from the operation of the Traverser if it considered it necessary to the health and safety of its employees while working in the Kiln Area and near the Traverser Bay. 60 Mr Roddy has isolated plant or equipment at the site previously and acknowledges that the general induction training authorises him, and other persons who have been inducted to the site, to do so if needed. 61 Neither the Defendant nor Hindmarsh isolated the Traverser prior to commencing the hob and rail relocation work in the Kiln Area because it did not seem a significant risk. Hindmarsh did not consider there was a need to isolate the Traverser as it did not think it was necessary to step into the pit to do the welding.

11 Under the heading 'The Accident' the agreed statement of facts described how Mr Hulm came to be injured: 62 On 27 July 2002, the day of the accident, Mr Hulm was working at the end of the Cooling Shed, within the Kiln Area and near to the Traverser Bay. Mr Hulm was squatting down, with his welding helmet down, welding cleats to fix rails into position. 63 Mr Tuominen was operating the Traverser from the primary operator's controls. Mr Peel was standing on the Traverser platform, a few feet from Mr Tuominen. The Traverser was travelling forward in a westerly direction, laden with timber that was being transported from the Cooling Shed to one of the Kilns for heat treatment. 64 With the Traverser laden with the timber, Mr Tuominen could not see what was in front of the Traverser as it travelled forward. 65 Mr Hulm was struck by the Traverser as it travelled forward. As a result his right leg became pinned and trapped by the Traverser. Upon hearing Mr Hulm's screams, Mr Tuominen released the Traverser's travel lever and hit the emergency stop button. 66 Mr Hulm was cut free from the Traverser using oxy-acetylene cutting equipment. Mr Hulm was transported by ambulance to a nearby playing field and thereafter transported by helicopter to Canberra Hospital for treatment. 67 Mr Hulm sustained injuries to his right knee and multiple fractures to his right leg. Flesh and muscle was torn from above and below his knee. Donor skin was taken from Mr Hulm's left thigh for grafts. Mr Hulm has since undergone surgery and received physiotherapy treatment.

12 The agreed statement of facts also described what steps to defendant took after the accident to upgrade its safety systems in the mill and avoid a re-occurrence of the risk that gave rise to the charge against it: 68 Since the accident, the Defendant has jointly prepared, with Hindmarsh, a Safe Work Method Statement to identify hazards and assess risks associated with hob and rail relocation work and Kiln Area operations. 69 Also following the accident, the Defendant has undertaken the following changes to the Kiln Area: (a) Yellow painted restricted area fence with gate placed at each end of the Kiln Area; (b) Signage noting no unauthorised access; (c) Signage directing people where to contact Kiln Area personnel; (d) Implementation of FM radios and communication procedures; (e) Upgrade of personal protective equipment to include provision of radios; (f) Restricted Area Procedure developed and implemented; (g) Training and assessment of staff in relation to Restricted Area Procedure; (h) Restricted Area Procedure adopted into site induction procedures; (i) Non-operational zone implemented approximately 1.5 metres either side of the Traverser Pit; (j) Non-operational zone highlighted by yellow road marking paint; (k) Permit to Work System, in place at the Defendant's Tuan Mill in Queensland, adopted for control of contractors at the site. 70 Also following the accident, the Defendant has undertaken the following changes in relation to the Traverser: (a) Modifications to improve safety including: (i) electronic trip bar fitted to the leading edge; (ii) flashing warning light fitted; (iii) repositioning of primary operator controls; (iv) installation of new safety railing; and (v) development of training module and competency assessment for all Traverser operators.

Consideration

13 The primary consideration in determining an appropriate sentence is the objective seriousness of the offence charged. As Mr A Britt of counsel for the prosecutor submitted, in undertaking that consideration there are a number of relevant factors and they are: (1) The maximum penalty prescribed for the offence;

(2) The nature of the offence in that it involved obvious or foreseeable risks to health and safety; (3) The nature of the offence in that there were simple steps available to remedy the failures;

(4) The nature of the offence in that the failures had every prospect of serious consequences; (5) The need for general deterrence;

(6) The need for specific deterrence.

14 In this case the maximum penalty, in light of the previous conviction of the defendant for an offence under the Act, is $825,000. This penalty reflects the public expression by Parliament of the seriousness of a breach of this section of the Act: See Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; Page v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at [23].

15 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 at [81]; Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27.

16 The risk that a person working in close proximity to the Traverser might be injured was both obvious and foreseeable. This was so for the following reasons: (a) The Traverser did not have any warning beepers or flashing lights fitted. (b) The defendant did not supervise Hulm or Smith on 26 and 27 July 2002. (c) The defendant did not supervise its Traverser operators on the day of the accident and they were not supervised by Hindmarsh & Roddy Engineering Pty Ltd. (d) Whilst work was being carried out by Smith and Hulm the full and normal kiln production and operations were continued by the Defendant including, the operation of the Traverser and its trolley. (e) The operation of the Traverser and the on-going operation in the Kiln Area were not identified as a risk in relation to the undertaking of the work by Hulm. (f) The defendant did not put in place any controls to separate the work being performed by Hulm from the operation of the Traverser or normal kiln production and operations. (g) The defendant did not isolate the Traverser prior to commencing the hob and rail relocation work in the Kiln Area by Hulm and Smith because it did not seem a significant risk. (h) With the Traverser laden with the timber, Mr Tuominen (the operator) could not see what was in front of the Traverser as it travelled forward. 17 It would appear from the agreed statement of facts that there was a lack of communication between Roddy & Hindmarsh and the defendant as to who would be supervising the work of Mr Hulm on the day of the incident, a Saturday, when neither Mr Hobson nor Mr Roddy was present. Mr Dobson apparently thought Mr Hulm's employer had arranged for supervision. The defendant also appears to have assumed that if it became necessary, Mr Roddy or Mr Smith would isolate the Traverser because they had been provided with isolation tags. In this respect, it was an agreed fact that: [T]he Defendant assumed that Hindmarsh would have implemented controls to separate the work from the operation of the Traverser if it considered it necessary to the health and safety of its employees while working in the Kiln Area and near the Traverser Bay.

18 Thus, although the risk to safety could not be described as anything other than both obvious and foreseeable, the defendant assumed that as it had not been requested to take any responsibility for Mr Hulm, Roddy & Hindmarsh was undertaking that role. However, it is to be observed that Mr Dobson undertook no supervision of the Traverser operators and there is nothing in the agreed facts to indicate the Traverser operators were advised of the need to exercise care because of the maintenance work that was being undertaken in close proximity to where the Traverser travelled on its rails. Indeed, as the agreed facts reveal: [T]he operation of the Traverser and the on-going operation in the Kiln Area was not identified as a risk in relation to the undertaking of the work by Mr Hulm, by either Mr Hobson, on behalf of the Defendant, or Mr Roddy.

19 How the Traverser could not, in the circumstances, be regarded as a risk in relation to the work being undertaken by Mr Hulm is impossible to fathom. The Traverser was allowed to continue to operate normally in the absence of any system of work to notify a person of when it was in operation and in the absence of any supervision of Mr Hulm.

20 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant to assessing the seriousness of the offence in this case: Kembla Coal & Coke at 36. It would not have been at all difficult for the defendant to put in place measures that would have avoided the risk to safety. As Mr Britt submitted, it was open to the defendant at any time prior to the offence to do all or any of the following: i) erect a barrier or fence to prevent employees from being struck by the Traverser; ii) develop and implement a Restricted Area Procedure; iii) develop and implement a non operational zone either side of the Traverser pit; iv) modify the Traverser as set out in the Agreed Statement of Facts at paragraph 70; and v) ensure employees were not working in close proximity to the Traverser when the Traverser was in operation.

21 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case Mr Hulm suffered serious injuries to his right leg and it is not beyond the realm of possibility that Mr Hulm could have been fatally injured.

22 I consider that I should give weight to the need for general deterrence in fixing any penalty. As the Full Bench observed in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71] it would be rare to impose a sentence under the Occupational Health and Safety Act that did not include an element for general deterrence. Timber mills can be dangerous places of work and require a comprehensive system of safe working and strict observance of that system.

23 As for specific deterrence the relevant consideration is the likelihood of the defendant re-offending. As I observed in Inspector Ritchie Green v The Crown in the Right of the State of New South Wales (Department of Commerce, formerly the Department of Public Works and Services) [2004] NSWIRComm 64 at [26] some of the relevant considerations include the defendant's attitude to questions of workplace safety and what steps were taken to improve safety following an accident; what are the defendant's antecedents; what can be said about its corporate character; what is the nature of the defendant's enterprise and does the industry in which it operates involve inherent risks to safety.

24 In considering the need for specific deterrence the prosecutor submitted the Court might wish to consider the defendant's one prior conviction for an offence under s 8(2) of the Act following an incident at the same workplace on 27 July 2002 involving a 16-year-old apprentice. On the other hand, it is relevant I also take into account the defendant's strong commitment to occupational health and safety both before and after the incident. I accept the submission by Mr J Agius of senior counsel for the defendant that: This material demonstrates a real commitment to O H & S as a fundament to the business of the defendant rather than something which is an add on and which survives in paper form on the shelf of an office of a "O H & S manager". … The systems policies and training regime that Hyne had in place at the time of the incident were extensive and if properly applied would have sufficed to address the causes of the breach, which is admitted in the plea. The difficulty here was one of enforcement. Whilst this cannot be excused in any way it is relevant to observe that on the day in question, a Saturday, a supervisor who might otherwise have been expected to be on site was absent.

25 Mr Agius submitted the defendant had "purchased a business with an extremely poor health and safety culture". It was submitted: This was inimical to Hyne's attitude to health and safety. Hyne had taken the precaution of conducting a pre-purchase review of O H & S at the site and had put in place a prioritised program for upgrading O H & S at the site. Hyne was aware of the absence of an audible warning device on the traverser trolley, however it had considered that another control measure was sufficient in the short term to deal with the risk whilst other safety measures were dealt with. There was a question of balancing priorities. The risk with the greater potential to harm the greatest number of people was dealt with in priority to the fitting of the warning device. This is regretted. It is no excuse. It is offered as an explanation. It has significance as it distinguishes this matter from one where the risk was not recognised through inadvertence or inattention. There was a plan in place to deal with the risk.

26 The defendant acted promptly after the incident. Immediately following the incident Hyne stopped the operation of the Traverser and had its HR Risk Manager at the site conduct an investigation of the cause of the incident and prepare a safety report. The measures taken by the defendant to avoid a re-occurrence of the incident are detailed earlier in this judgment.

27 I do not propose to include in the penalty a significant amount for specific deterrence.

28 The foregoing considerations that go to the objective seriousness of the offence point to a relatively serious contravention. There are, however, a number of subjective factors to be taken into account in mitigation. I accept that the defendant's guilty plea was made early and, therefore, any penalty should be discounted for the utilitarian value of the early plea. I also accept the defendant's submission that it cooperated fully with the WorkCover Authority in its investigation of the offence. 29 The defendant has demonstrated contrition and remorse by its early plea of guilty and its continuing inquiries after the accident of Mr Hulm's condition. This can be seen as genuine concern demonstrated for the injured worker who was not an employee of the defendant. I also take into account the defendant's obvious and commendable commitment to health and safety in the workplace. As Mr Agius submitted: The Defendant had operated for 120 years (as at the date of the incident) in an industry where the opportunity for serious injury is ample. Yet its record of industrial citizenship would indicate that it has always maintained a priority for safety matters.

30 Mr Agius further submitted I should take into account the defendant's size and diverse nature: WorkCover (NSW) v Warman International Ltd (2001) 105 IR 236 at 257. In this respect Mr Lightbody deposed that Hyne was one of Australia's largest privately owned timber companies employing approximately 900 employees. It has operations extending from Cairns in Queensland, through New South Wales and the Australian Capital Territory to Melbourne in Victoria. Hyne has 25 sites in total, of these 12 are wholesale operations; 5 are hardwood sawmills; 1 is a timber treatment plant; 4 are manufacturing plants and 3 are softwood sawmills, including the operation at the Tumbarumba Mill. I have had regard to the defendant's size and diverse nature.

31 The defendant has a prior conviction arising out of an incident involving an apprentice. I do not regard that offence and the one I am here dealing with as an indication of a propensity to re-offend but rather as aberrations in what is, over a long period of time, a good record. Nevertheless, the Act requires me to consider what penalty should apply in the range of zero to $825,000 in circumstances where the defendant in Inspector Craig Przibilla v Hindmarsh & Roddy Engineering Pty Limited was prosecuted in relation to the same incident but where the maximum penalty was $550,000.

32 I do not consider the offence committed by the defendant is as objectively serious as that committed by the defendant in Inspector Craig Przibilla v Hindmarsh & Roddy Engineering Pty Limited. In that case the failures related to the system of work and supervision. In the present case the failures related to the system of work and supervision and instruction. The difference in the failures charged is not significant. The defendant in Roddy & Hindmarsh, however, was the employer of Mr Hulm and had an immediate and direct responsibility to ensure Mr Hulm's safety. Moreover, the employer failed to take adequate steps to ensure the proper supervision of Mr Hulm in the absence of Mr Roddy on the day of the incident and to set up work arrangements with Hyne relating to the operation of the Traverser to ensure Mr Hulm would not be placed at risk. In my opinion, the contribution by the defendant in Roddy & Hindmarsh to the risk was greater than that of Hyne.

33 The maximum penalty in the case of Hyne is $825,000 whereas in the case of the defendant in Roddy & Hindmarsh it was $550,000. Having regard to the different contributions to the risk I do not propose to fix the level of penalty for Hyne significantly higher than that imposed on the defendant in Roddy & Hindmarsh notwithstanding the higher maximum penalty applicable to Hyne. I consider this approach is consistent with that taken by the Full Bench in P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102. However, what also must be taken into account is the fact that a lower penalty than otherwise would be the case was imposed on the defendant in Roddy & Hindmarsh having regard to considerations arising under s 6 of the Fines Act 1996.

34 The penalty I impose on the defendant is $180,000. This amount is to be discounted by 25 percent for the utilitarian value of the early guilty plea. The penalty is to be discounted by a further 10 per cent for the other subjective factors I have referred to. That leaves a fine of $117,000.

Orders

35 The Court makes the following orders:

1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $117,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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