Inspector Bruce James Marshall v United Resource Management Pty Ltd. [2005] NSWIRComm 27

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector Bruce James Marshall v United Resource Management Pty Ltd. [2005] NSWIRComm 27

PROSECUTOR: Inspector Bruce James Marshall PARTIES: DEFENDANT: United Resource Management Pty Ltd

FILE NUMBER(S): IRC 1837, 1838 and 1839 of 2000

CORAM: Haylen J

HEARING DATES: 02/02/2005 EXTEMPORE JUDGMENT DATE: 02/02/2005

PROSECUTOR: Ms M McDonald of counsel SOLICITORS: Phillips Fox

LEGAL REPRESENTATIVES:

DEFENDANT: Mr D Priestley of counsel SOLICITORS: Back Schwartz Vaughan

JUDGMENT:

- 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 2 February 2005

Matter No IRC 1837 of 2000 INSPECTOR BRUCE JAMES MARSHALL v UNITED RESOURCE MANAGEMENT PTY LTD Prosecution under s.15(1) of the Occupational Health & Safety Act 1983 Matter No IRC 1838 of 2000 INSPECTOR BRUCE JAMES MARSHALL v UNITED RESOURCE MANAGEMENT PTY LTD Prosecution under s.15(1) of the Occupational Health & Safety Act 1983 Matter No IRC0 1839 of 2000 INSPECTOR BRUCE JAMES MARSHALL v UNITED RESOURCE MANAGEMENT PTY LTD Prosecution under s.15(1) of the Occupational Health & Safety Act 1983

EX TEMPORE JUDGMENT

In relation to Matter 1839 of 2000, I propose to deliver judgment now. On the 27 April 1998 in Belrose, Mr Grant Mitchell, an employee of the defendant, United Resource Management Pty Ltd, was fatally injured in the course of his employment. At the time of the accident the defendant was engaged in waste collection under a contract with Warringah Council and it was part of the duties of the deceased employee to assist the driver in the collection of waste. Three proceedings for alleged breaches of the Occupational Health & Safety Act 1983 were then commenced.

There is a long history associated with this matter and it has been canvassed to some extent during today's proceedings. It is sufficient to note at this point that an arrangement has been reached, of which the court was informed today, whereby this matter would proceed and the other two matters would be withdrawn with no order as to costs at the conclusion of this case. That has occurred. At the commencement of today's proceedings an amended application for order was filed in court and the Prosecution proceeded on that amended application for order. Essentially, the particulars of the charge are that the defendant failed to ensure that adequate instructions were provided in the communication system between drivers and runners whilst undertaking waste collection duties. As a result of those failures there existed a risk to the safety of employees of the defendant and in particular to Mr Mitchell.

There was tendered an agreed statement of facts. I do not intend to incorporate all of those agreed facts in this judgment but it is sufficient to note the following matters.

It appears that at all material times, and on the evidence which I will refer to shortly, the defendant employed approximately 35 staff which includes 7 waste collection drivers and 14 waste collection loaders/runners and 4 transfer station drivers.

Mr Mitchell was 27 years old. He was employed as a waste collection loader/runner and had been employed as a casual for approximately 8 weeks prior to the accident. There was some gap in the performance of duties during that period which is not relevant for me to recount here but I note it. It is said in the agreed statement of facts that an investigation of the accident revealed that Mr Mitchell commenced casual employment with the defendant on the 27 February 1998. He had returned to work after approximately 28 days absence from unrelated injuries and commenced what was regarded as suitable duties on the 7 April 1998 and recommenced pre-injury duties on the 17 April, approximately 10 days prior to this fatal accident.

The method of work for this crew is briefly set out. There was a driver and two runners. The driver was Mr Terry Kelly who had commenced casual employment with the defendant on the 2 April 1998, and another loader/runner, Mr Michael Quirk, who had commenced casual employment some 6 weeks prior to this accident but on the evidence appeared to have prior experience with this type of work. Exactly what occurred is not abundantly clear to me nor is it set out precisely in the agreed statement of facts, but during the course of collecting waste, there was a discussion about which direction should be taken, the driver being new and not familiar with the usual route to be taken on the route they were working upon that day. After that had been decided after a discussion with Mr Mitchell who was then standing beside the driver's door, the waste collection truck commenced to turn and Mr Mitchell, was run over and received fatal injuries. It is said that the front wheel of the waste collection truck came to rest on Mr Mitchell's lower chest.

This vehicle was not fitted with two-way communication facilities. That necessitated Mr Kelly running to nearby residents homes to raise assistance and to call an ambulance, and there was some difficulty initially in finding someone at home amongst the residents. It is said that investigations reveal that all training and instruction provided to employees of the defendant company based at the Belrose Management Service were verbal with no documentation provided. Training and instruction involved riding on a platform and communication between drivers and runners but no documentation was provided.

Mr Quirk said that he had been employed by the defendant as a runner and had been working from the Belrose site for 5 to 6 weeks. In relation to instructions and training received prior to this accident, Mr Quirk said on his first time out he went with someone who was not identified; that person showed him what to do. He was just a truck driver on the job more or less telling you what you were not allowed to do. He was shown how to operate the tail gate and blade. Most of that came from the driver. At the time of the accident Mr Quirk was at the rear of the truck, he was loading paper refuse. He witnessed the vehicle moving forward, stop and then reverse. He was unaware of the injury to Mr Mitchell until informed of that occurrence by Mr Kelly.

Mr Kelly commenced employment with the defendant as a casual driver approximately 3 weeks prior to the date of the accident. His supervisor was Mr Tony Jones. Instruction, training and assessment was verbally provided on the first day of Mr Kelly's employment with the defendant. He received 20 minutes verbal training from his supervisor. He was physically shown how to check the oil and he was watched in performing that task. He was shown how to use the compactor inside the cabin of the truck. He was watched while he performed that task. Mr Jones instructed Mr Kelly to be aware of the presence of runners at all times.

Mr Jones had been employed by the defendant since the 1 July 1997. He had three years prior experience with Johnston Waste Pty Ltd. He commenced employment as a loader/runner and said he worked his way up to driver and then collection supervisor. He held the position of collection supervisor since the end of March 1998. His responsibilities was the allocation of the run and the crew in which Mr Grant Mitchell was working.

Mr Jones stated he did not know what type of instruction had been provided to Mr Mitchell upon his commencement of employment. On the date of the accident, that is, 27 April 1998, that was the second time he had supervised Mr Mitchell. He said that he had provided some verbal instruction to Mr Mitchell on that date. Since Mr Jones had been appointed as collection supervisor he said that training he provided to employees was basically what he was told when he started as a runner, the do's and don'ts were told to him verbally and by demonstration. There were no records kept of the training given to waste collection staff prior to the accident on 27 April 1998. Mr Jones stated that of the nine vehicles he was responsible for in relation to the Warringah Council contract, only six had two-way communication facilities.

The prosecution case was completed by the tendering of a number of photographs which gave general background information or assistance to enable an understanding of the circumstances surrounding this accident. There was also a record of interview which I don't need to deal with separately, and a certificate of prior convictions which demonstrated that the defendant had no prior convictions, being a company that seemed to have commenced operation in July 1997.

In relation to the defendant, affidavit and oral evidence was given by Anthony Charles Johnston who at all relevant times was the Managing Director of the defendant. Again I don't wish to include in this judgment the whole of Mr Johnston's affidavit evidence but I emphasise these matters. He stated that prior to Mr Mitchell's accident, neither Johnston Waste, the earlier contractor, nor the defendant had been prosecuted for any breach of any Occupational Health & Safety legislation arising from an injury by being struck or run over by a waste collection vehicle. To his knowledge, up until the time of the accident, all new employees of the defendant who were to assist drivers or loaders on waste collection were to receive basic training and safety training upon induction from one of the managers. The managers were all experienced in those tasks. There was also instruction at the same time with regard to the duties entailed in the job including specific instructions to the driver to be aware of the whereabouts of the runners during the course of a collection run.

There is a reference to two documents, both in existence at the time but as the agreed statement of fact makes clear, not directly used in the training of the employees involved in the run such as Mr Mitchell. The first is the Safety Environmental and Quality Management Manual. I note that in that document there is an Occupational Health & Safety policy which sets out that policy in very general terms but does not descend into specifics by way of direction to employees. It does contain this statement. "Observed failure to comply with any part of this policy will be brought to the attention of management by appropriate action". That document also contained a section dealing with the functions of the Occupational Health & Safety Committee but the evidence establishes that the Committee, if at all operational, certainly was not effectively operational until after the accident. The other document that was in existence was a document entitled United Resource Management Equipment Operating Procedures. Operator instructions were contained in that document, and there is a section dealing with travelling to and from collection runs and depots. That document states all employees must only ride behind the vehicle in seats provided for the purpose. The driver was to ensure the two-way radio or mobile phone supplied was switched to the on position at all times when the vehicle was away from the depot. It made reference to the volume of the two-way radio. The document further provided that drivers should remain in the cab of the truck whilst the collection service is being conducted and be aware of the location of offsiders at all times. New off-siders were to work on the left hand side of the vehicle until they were confident they knew the system of garbage collection. All crew had to work from the kerb side or in designated streets where it was agreed to load from both sides. Offsiders were not to go in front of the vehicle and were to follow standard road safety rules when working. They were instructed to be always alert to approaching traffic and keep in full view of the driver. There were instructions given to loaders as to when they may ride other than in the cabin in the collection work.

It might be said those instructions, although having some specificity, are nevertheless fairly general. For instance the instruction to the new offsiders left it to the offsiders to assess when that person knew the system of garbage collection would permit that person to work other than on the left hand side. As to some other matters, such as it being agreed to load from both sides of the street, it does not say who has to agree or in what circumstances. I just draw attention to those matters to indicate that firstly while there was something made of this, there was a documented system, there were inadequacies in that documented system and on the agreed statement of facts the documented system was not made available to this particular work crew.

Following the accident, a number of steps have been taken by the defendant and they have been dealt with in Mr Johnston's affidavit. He says that after the accident he caused a review of the training procedures to be undertaken with the assistance of Mr Venn who had been appointed as a manager for the defendant in August 1997. Mr Venn's qualifications are referred to, I do not need to detail them here, and there was an external consultant engaged to assist with Occupational Health & Safety systems.

In late September 1998 a new code of conduct was issued by the defendant. An induction check list was introduced shortly after the accident to enable checking so that with new employees it could be established that they had been trained in all aspects of the job including safe signalling between drivers and loaders and there was also in 1998 a new document entitled Quality Assurance Procedures Manual. Mr Johnston continues that he was disturbed by Mr Mitchell's death. All of this new documentation reflected what he described as the renewed attention which Mr Venn and Mr Johnston had undertaken to ensure the company addressed workplace safety. He said that since those documents had been introduced they were subject to regular review. He also made these points: prior to the accident the defendant had been in meeting with councils to bring in an automated bin collection, in his view ,removing risk to loaders. That had since been implemented with most councils where the defendants are contracted and the Warringah Council adopted that approach in August 1998 in response to submissions made by the defendant. Also in November 2000 the defendant company was certified under an international standard of quality systems in the industry which includes workplace safety and had maintained that certification each following year - a certification that was audited bi-annually.

In his affidavit, Mr Johnston also acknowledges that the driver and Mr Mitchell at the time of this accident were relatively new employees and he accepted some responsibility on behalf of the defendant for the accident having acknowledged if training, in relation to communication, between drivers had been more comprehensive, the risk to Mr Mitchell may have been reduced.

In addition there were a number of references gathered by Mr Johnston at an earlier date for the purpose nevertheless of these proceedings and they were tendered on behalf of the defendant. I have read those documents and I think it is fair to say that they speak well of the corporate culture of the defendant; some of the personal attributes of Mr Johnston as the principal officer of the defendant; the participation of the defendant and Mr Johnston in industry associations; and not only the promotion of industry awareness matters but awareness of Occupational Health & Safety. There is also a reference from Employers Mutual Indemnity Workers' Compensation Ltd which referred to pro-active efforts made by the company in the rehabilitation of injured workers and the maintenance of a safe working environment resulting in an excellent claims record in comparison with other companies operating in the same industry.

There was also a reference earlier to a reduction in the number of recorded workplace injuries amongst the defendants work force following the accident and the implementation of further measures to address Occupational Health and Safety. In light of that evidence, I now come to consider the appropriate penalty to be imposed in this matter.

The first task is to assess the objective seriousness of this offence. I accept the defendants submission that this is not a case where there was an absence of a system of work, and I also accept their acknowledgement of the gaps and omissions in that system. In particular the system did not address the issue of communication which is at the heart of the particulars of this charge. Two of the three crew on the day of this accident were quite new employees. It seems from the evidence that they were given some verbal direction, although the extent of that is not clear. It is not usually sufficient to tell employees simply to observe rules incorporated somewhere else, such as here: just observe the usual road rules. It is to be accepted that the task was not complex. The machinery used in the task, however, was large. The team of employees were working on the road. It was undoubtedly a potentially dangerous workplace.

As it turns out, Mr Mitchell was not working on the left side of the vehicle as the defendant's document suggested or directed should occur. It is unknown whether somebody else concluded he was now familiar enough with the task to abandon that approach. It is clear, as the Prosecutor has submitted, that the written system of work or its direction contemplated the dangers and the foreseeability of danger to the loaders running alongside a collection truck. To that extent this type of accident was foreseeable. There were quite simple and straightforward steps which could have been undertaken to address that risk and as it appears from the evidence those steps now have been taken and there is an emphasis on communication, signalling and the like. It is accepted that in assessing the objective seriousness of the offence it is often a mistake to simply work on the basis of the injury received in a particular incident. This charge is framed by reference to a failure of the system and it is evidence of the seriousness of the offence that Mr Mitchell was not only injured but was fatally injured. The court can do no other than acknowledge that this was a serious offence.

I then come to consider the issue of general and specific deterrence. There was no suggestion and no basis for not taking into account aspects related to general deterrence. In relation to specific deterrence, the Prosecutor points out that the defendant continues to employ a significant number of people in this industry and the role for specific deterrence therefore is real and continuing. For the defendant, firstly, it was submitted that it is now some years since this incident and there has been no further breach of this nature or any other breach apparently of the Occupational Health & Safety legislation. Secondly, the steps taken by the defendant demonstrate that the defendant has applied its mind to safe systems and has effectively introduced safe systems that lead to its favourable status as noted by Employers Mutual and some of the other documents in the references handed up. I accept the effect of those matters as submitted by the defendant but I am unable to conclude that specific deterrence should have no role to play in the sentencing assessment. I do accept that in light of those matters referred to by the defendant, it has a modified role and I will proceed upon that basis. I then move to consider subjective factors. I accept here that there was an early plea. There was an amended application which was formally dealt with by the court today although undoubtedly the subject of some discussion for some considerable time between the parties. Immediately that document was permitted to be substituted as the amended charge, a plea of guilty was entered. It is also relevant that, as submitted on behalf of the defendant, from the very earliest time these matters were mentioned when they were three in number, rather than one offence being pursued, the defendant having entered pleas of guilty, contested a number of the facts upon which the Prosecutor appeared to be proceeding upon. In the event, I conclude that the defendant is entitled to the usual and maximum discount for an early plea and I allow a discount of 25 percent in relation to that matter.

In relation to other subjective factors, there are a number to be considered. Seven years down the path this defendant now has a good record in terms of Occupational Health and Safety. The references speak of the good citizenship of the defendant; its industry participation; its urging of new and safer systems of collection. There is evidence as to the fall in the frequency of accidents. There is also evidence of co-operation with the WorkCover investigation; there is also evidence of contrition. I think in all those circumstances it is appropriate to grant a further discount of 10 percent - bringing the total discount to 35 percent.

An issue arose as to costs with the defendant arguing that there should be no order as to costs. It was pointed out for the defendant that at the very beginning of these matters when there were three prosecutions, the defendant was anxious to firstly concede that there were omissions in the system and gaps in the system and was anxious to accept responsibility for the risks that were evident on the day of this accident but was determined to contest the basis upon which at least some of the particulars proceeded. I do not state the nature of that contest but it is said that once it was understood that as a result of the arrangement reached between the parties this matter, which concentrated on and particularised communication, supervision and instruction rather than other aspects of the system, it might be an open and fair inference that Mr Johnston's complaints and issues raised by him had not only merit but merit recognised by the Prosecutor. I am not in any position to know what operated on the Prosecutor's mind in agreeing to the course it has adopted. I accept that undoubtedly there were costs, and considerable costs, involved in the early part of preparing these cases before they got to this point. It seems to me, however, all of those matters are appropriate to be taken into account as to the quantum of the costs and it would not be appropriate that there be no order as to costs in this matter.

I therefore reject the defendants submission but I would urge the parties in light of the order I am about to make that they approach with a sense of realism and an appreciation of the variety of matters that have added to the costs of all of these matters when they come to their discussions about costs. Having regard to all of those matters, I make the following orders:

1. The defendant is convicted of a breach of section 15 (1) of the Occupational Health & Safety Act 1983 as particularised in the amended application in Matter IRC1839 of 2000 to which it has pleaded guilty. 2. The defendant is fined the sum of $130,000 with moiety to the Prosecutor. 3. The defendant is to pay the costs of the Prosecutor in a sum as agreed or in the absence of agreement as determined by the court. 4. The Notices of Motion and Summons for production filed in this proceeding are dismissed with no order as to the costs associated with them. Is there any other matter I need to attend to?

PRIESTLEY: Just in terms of the fine, time to pay - I have been instructed to make an application to your Honour about that.

McDONALD: If I can assist, it is covered by the Fines Act; your Honour has no power - it is more an administrative matter.

HIS HONOUR: That is an extraordinary position; I don't know why you would construe the legislation to deprive the primary implementer of the fine of a power and discretion how it might be paid. The better view is it doesn't detract from the courts power at all but gives an administrative avenue as well to address the issue. I think what I to do is Mr Priestley give you leave to raise the issue of time to pay in the absence of some arrangement that can be reached with the Prosecutor and the Registrar.

PRIESTLEY: Yes your Honour.

HIS HONOUR: Hopefully that will not be necessary but it might cover the point.

On that basis, the Commission adjourns.

ooO0oo

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