Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Andrew Rowe v Roads and Maritime Services of New South Wales [2012] NSWIRComm 43
• Hearing dates: 8 February 2012; Written submissions - 16, 23 March 2012; 10 May 2012
• Decision date: 25 May 2012
• Before: Kavanagh J

Decision

The Court makes the following orders:

1. In Matter No IRC186 of 2011, I find the defendant guilty of the offence as charged.

2. The defendant is fined in the sum of $150,000 with a moiety to WorkCover Authority of New South Wales.

3. The defendant shall pay the costs of the Prosecutor. 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.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecutions under s 8(2) of the Occupational Health and Safety Act 2000 - RTA (now RMS) site - maintenance and road works being performed late at night - failure to recognise need for risk assessment and safe work method to protect person on foot at worksite given the movement of vehicles within the site - defendant responsible for OHS on site - multiple contractors on site - no communication system in place between the parties on worksite - failure to ensure each contractor's safe work method recognised the risk from the movement of vehicles within a worksite when employees were also on site on foot - foreseeability - no recognition of risk - gravity of offence - general and specific deterrence - early plea - co-operation with WorkCover - parity - victim impact statements - subjective elements - consideration as to whether prior convictions of prior corporation carried over to new corporation - whether previous offender with prior convictions for purpose of penalty effect ss 120, 121, 123 of the Occupational Health and Safety Act and Transport Administration Act 1988, cl 183 of Schedule 7 and Schedule 4 (as amended by Transport Legislation Amendment Act 2011) - penalty
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Criminal Procedure Act 1986; Health Services Act 1997; Interpretation Act 1987; Occupational Health and Safety Act 2000; Transport Administration Act 1988; Transport Legislation Amendment Act 2011
• Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; Country Energy v Malone [2005] NSWIRComm 78; (2005) 138 IR 221; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 432; Fisher v Samaras Industries Pty Limited (1996) 82 IR 384; Insp Rowe v Eagle Eye Traffic Services [2010] NSWIRComm 31; Inspector Glass v Foamex Polystyrene Pty Limited [2004] NSWIRComm 100; Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; Inspector Lancaster v Rail Corporation of New South Wales [2008] NSWIRComm 189; Inspector Morgenthal v Houghton [2010] NSWIRComm 192; Inspector Olive v Transfield Pty Ltd [2001] NSWIRComm 295; James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997); Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee 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 Mansour [1999] NSWCCA 180; R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104; R v Wickham [2004] NSWCCA 193; Tyler v Sydney Electricity (1999) 47 IR 1; Veen v The Queen (No 2) (1988) 164 CLR 465; 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 New South Wales (Inspector Gilbert) v Energy Australia (formerly Sydney Electricity) (1981) 85 IR 99; WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported decision of Hill J dated 2 April 1997)
• Category: Principal judgment
• Parties: Inspector Andrew Rowe (Prosecutor); Roads and Maritime Services of New South Wales (Defendant)
• Representation: Mr B G Docking (Prosecutor); Ms P E McDonald SC (Defendant); WorkCover Authority of New South Wales (Prosecutor); Sparke Helmore, Solicitors (Defendant)
• File Number(s): IRC 186 of 2011

Judgment

1 Pursuant to s 120(2) of the Occupational Health and Safety Act 2000 ("the Act") and/or ss 16(2), 20 and 21 of the Criminal Procedure Act 1986, the name of the defendant should be changed from the Roads and Traffic Authority of New South Wales (RTA) to the Roads and Maritime Services of New South Wales (RMS). However, most of the documentation tendered refers to the RTA as it was and in the body of this judgment the defendant will be referred to by its title at the time of the offence, namely, the RTA.

2 This prosecution is brought by Inspector Rowe of the WorkCover Authority of New South Wales against the Roads and Maritime Services of New South Wales ("the defendant") under s 8(2) of the Occupational Health and Safety Act 2000 ("the Act") by way of a further Amended Application for Order.

3 It is alleged the defendant on 2-3 February 2006 at Alfords Point Road, Alfords Point contravened s 8(2) of the Act in that it failed to:

ensure that persons other than its employees, and in particular, Bradley John Morris, were not exposed to risks to their health and 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.

In particular:

(a)The 'risk' was the risk of non-employees being struck by mobile plant and vehicles ('plant') within the site.

Particulars of the work, undertaking and place of work:

(b)The 'work' involved road resurfacing work that included but was not limited to the supply and laying of asphalt ('the work').

(c)The defendant's 'undertaking' was to manage and oversee the works at the site, monitor the work at the site in terms of progress, quality controls, environmental checks and occupational health and safety, and ensure that contractors were running the job in a safe manner ('the defendant's undertaking').

(d)The site was the defendant's 'place of work', including all areas of the site where people performed road resurfacing work ('place of work').

Particulars of the defendant's omissions:

(e)The defendant failed to ensure that prior to any work commencing on the site on 2-3 February 2006:

i.A risk assessment was undertaken that specifically identified the risk arising from the fact that people working on foot would be working in the vicinity of plant operating within the site.

ii.The content of the plan (referred to in particular (f) below) was promulgated and enforced on the site.

(f)The defendant failed to ensure that it, or any of its contractors on site, had implemented a plan which identified and required that:

i)The movements of plant that was to be operated in the vicinity of people working on foot within the site were planned and coordinated so as to eliminate or control the risk.

ii)A safe distance or clearance (for example, 3 metres or greater) was to be maintained at all times between people and plant within the site.

iii)Plant was not to be reversed within the site unless a spotter, safety observer or reversing camera was used at all times when plant was being reversed.

iv)A designated 'safety lane' was to be used by people travelling on foot within the site and plant was not to be operated or parked within the designated safety lane.

v)A designated area was to be used when turning or changing the directions of travel of plant within the site.

vi)A dedicated communication system was to be used by all people working at the site to communicate about the work and, in particular, about the movements of people and plant within the site.

4 The defendant pleads guilty to the charge.

5 Mr B G Docking of counsel appeared for the prosecutor and Ms P E McDonald, SC appeared for the defendant. The prosecutor relied upon an amended Application for Order, an agreed Statement of Facts, Factual Inspection Report of Inspector Derek Pryor (29 May 2006), WorkCover Photographs, WorkCover Code of Practice "Moving Plant on Construction Sites" 2004, WorkCover Safety Alert titled "Moving Plant on Construction Sites", Boral Asphalt (NSW) Safety initiative on reversing sensor and camera trial, Australian Standard AS 1742.3 - 2002 Manual of Uniform Traffic Control Devices, Part 3, RTA Traffic Control at Work Sites Manual Version 3.1 (April 2006); Nace Civil Engineering Pty Ltd Safe Work Procedure - Truck Spotting Operation dated September 1999; Nace Civil Engineering Pty Ltd Job Safety Analysis (January 2002); Borthwick & Pengilly Safe Work Plan (Asphalt) dated 22 April 2005; Borthwick & Pengilly Asphalt Pty Ltd Worksite Risk Assessment, Probability Risk Score Calculator (2 February 2006) and JSA Safe Work Method Statement (revised 3 March 2006), Eagle Eye Traffic Control Plans A1, A2, A and B (26 April 2005), Hand drawn diagram of incident site, correspondence, RTA Tip Sheet 'Working on Foot In Proximity to Plant- T002' (March 2006) and a Prior Conviction Report.

6 The defendant relied upon an Affidavit of Shailendra Tripathi sworn 2 December 2011 and attached documentation.

7 There was an Agreed Statement of Facts which relevantly reads:

2.At all material times the Roads and Traffic Authority of New South Wales ('RTA') was a body corporate constituted pursuant to section 46 of the Transport Administration Act 1988.

3.At all material times the RTA had the capacity to approve and assign to external contractors work to be carried out on public roads within the State of New South Wales.

4.Nace Civil Engineering Pty Limited (ACN 065 010 291) ('Nace') were civil engineering contractors who, at all relevant times, were part of a panel of contractors and were assigned work by the RTA.

5.Borthwick & Pengilly Asphalts Pty Limited (ACN 054 599 389) ('Borthwick & Pengilly') were an asphalting company who also were on a panel entitling them to be assigned work on roads in New South Wales.

6.Eagle Eye Traffic Services Australia Pty limited (ACN 113 397 934) ('Eagle Eye') provided traffic control services.

7.At all material times the RTA contracted Nace to undertake road resurfacing work (the 'work') on Alford's Point Road, Alford's Point in the State of New South Wales ('the site'). The RTA appointed Nace as the Principal Contractor of the site in accordance with the Act. The RTA's undertaking was to manage and oversee the work at the site, monitor the work at the site in terms of progress, quality controls, environmental checks and occupational health and safety, and ensure that the Principal Contractor and other contractors were running the job in a safe manner.

8.At all material times Nace sub-contracted the road resurfacing work to Borthwick & Pengilly.

9.At all material times State Asphalts Services (ACN 095 663 648) contracted Eagle Eye to design, implement and perform 'night work' traffic control services on Alford's Point Road, Alford's Point in the State of New South Wales, with respect to control of public road traffic passing the site within which Borthwick & Pengilly was performing resurfacing work on the road surface.

10.At all material times the RTA employed Ric Patterson (Surveillance Officer- Utilities) and Anoop Khubchandani (Works Supervisor- Civil Operations)). Messrs Patterson and Anoop were present on the site on 2-3 February 2006 and were present at the site on a regular basis. Mr Patterson's role pertained only to the quality of the product being produced by the contractors.

11.Mr Khubchandani was responsible for reviewing the quality of the work and occupational health and safety at the site. Mr Khubchandani had the power to demand that safety matters be attended to and to dismiss non-compliant workers/entities from the site.

12.At all material times, Nace engaged Antonus Akerboom (Project Manager).

13.As principal contractor, Nace had responsibility to ensure that all sub-contractors had safe work method statements and that these were implemented and adhered to on the site.

14.On 2-3 February 2006 Mr Akerboom was not present on the site. Employees of Nace had been present late into the night of 2 February 2006 conducting coring work but were not present at the time the incident.

15.At all material times Borthwick & Pengilly employed Nathan John Williamson (Truck driver) Sean Patrick Williamson (Labourer) Ronald Andrew Lee (Roller Operator) and Daryl Edmond Hulm (Site Supervisor).

16.At all material times Mr Hulm's normal duties included assigning work to and supervising the labourers and drivers at the site. On 2-3 February 2006, Mr Hulm was responsible for supervising the site, and he was present at the site at the time of the incident.

17.At all material times Eagle Eye employed the following persons to undertake traffic control at the site: Albert Viera (Ganger/Site Supervisor), the deceased, Bradley John Morris (Traffic Controller), a female known as Hoana Tiori (Red Ticket Holder), Martin Garvey (Traffic Controller) and Craig Billinge (Traffic Controller/Truck Driver). All these employees of Eagle Eye were present at the site on the evening of 2-3 February 2006.

18.At all material times Mr Viera's normal duties included assigning work to and supervising the traffic controllers at the site, and he was present at the site at the time of the incident.

19.At all material times Mr Morris was assigned to the performance of tasks in relation to traffic control work associated with the road resurfacing work being undertaken at the site. Mr Morris' normal duties included placing signs and "witches hats" on the side of the road and performing traffic control duties. Mr Morris had a current traffic 'ticket' which permitted him to undertake work in and around traffic.

Background to the work being performed on the night of the incident

20.The work at the site was divided into two stages. The first stage was undertaken in May 2005. The second stage commenced in January 2006.

21.Prior to the commencement of work in stage 1, a site meeting was held on 4 May 2005 which was attended by Mr Khubchandani (RTA), Tom Ackerboom (Nace), Brian Borthwick (Borthwicks), Darryl Hulm (Borthwicks) and Gary Poland (Director of Eagle Eye). The site meeting was held to discuss all details of what was entailed in the work at the site. No one at this meeting identified the need for a safety plan in relation to vehicle/mobile plant and pedestrian movements within the site.

22.By 2 February 2006 the second stage of the work was well underway. On the night of 2-3 February 2006 night work involving asphalt resurfacing was scheduled to occur at the site. The northbound dual carriage lanes had already been resurfaced as part of stage 2.

The system of work prior to the incident

23.The 'RTA Traffic Control at Work Sites' manual, Issue 1, dated September 2003, provided guidance for the implementation of safe working practices and traffic control measures with respect to traffic movement around work sites and entering/leaving work sites, prior to the incident.

24.Section 2.3, headed 'Definitions', defined a vehicle movement plan as:

"A diagram showing the preferred travel paths for vehicles associated with a work site entering, leaving or crossing through the traffic stream." "A vehicle movement plan should also show travel paths for trucks at key points on routes remote from the work site such as places to turn around, accesses, ramps and side roads."

25.Section 3.6, headed 'Safe Clearances between workers and through traffic', provided guidance for the implementation of safe working practices to prevent injury to workers due to hazards within work sites, the protection of workers from oncoming or passing traffic and the protection of road users from hazards within work sites. This section did not provide guidance for the implementation of safe work clearances between workers and mobile plant within work sites.

26.Section 7.1 was headed 'Responsibilities of Drivers'. Within it, it was noted that drivers bore the responsibility of driving safely and in accordance with both the road rules and any existent movement plan ("VMP").

It was further noted within Section 7.1 that care was necessary when entering and leaving traffic streams and turning in conjunction with work on roads.

Next, within Section 7.1, it was noted that vehicles should have reversing alarms and reversing lights. It was also noted that some vehicles, not fitted with reversing alarms, may deliver material to work sites and consequently present a hazard when reversing. In relation to that context it was specifically stated:

"Procedures should be put into place to warn all workers of the potential hazard and to establish appropriate on site traffic control procedures. Such procedures could include the requirement for truck drivers to report to a suitably signposted area on the worksite and for a designated worker to walk beside the reversing truck to act as an observer to ensure all workers are clear of the reversing vehicle".

27.Section 7.3 provided that "vehicles reversing in the work area are subject to the condition outlined in section 7.1" and that "there is to be no reversing in lanes carrying traffic unless traffic is being controlled by Traffic Controller".

28.Section 7.4 provided that "when planning road works, attention shall be given to ensuring that traffic associated with the works can safely manoeuvre to and from traffic streams, turn at work areas, depots etc and turn around". "This includes gang trucks, trucks carrying materials works supervisor's trucks etc." This section did not provide for the safe manoeuvre within work sites of mobile plant or traffic associated with road works.

29.At no stage prior to the incident did any of the parties involved at the site develop a site safety plan for the movement of vehicles/mobile plant and workers within the site.

30.Eagle Eye had responsibility to provide a Traffic Control Plan for the site. Nace, Borthwick and the RTA had responsibility to approve the Traffic Control Plan provided by Eagle Eye.

31.The Traffic Control Plan provided by Eagle Eye with respect to the site made no provision with respect to vehicle/mobile plant or worker movements within the site.

32.The Traffic Control Plan did not provide any vehicle movement procedures, including but not limited to the reversing of any such vehicles and/or mobile plant.

33.There were no turning areas designated within the site so as to enable vehicles to turn to travel in a forward direction.

34.There was no safe system of communication in place at the site between the employees and supervisors of the RTA, Nace, Borthwick & Pengilly and Eagle Eye. As a result, employees and supervisors were unable to consistently and adequately inform each other of worker and vehicle/mobile plant movements within the site.

35.At the site, Eagle Eye employees communicated through a portable hand held two-way radio system. Traffic controllers from Eagle Eye could communicate to truck drivers arriving at site through channel 26 on their radios, however no other workers or supervisors at the site had their own two-way radio or access to Eagle Eye's two-way radio.

36.Albert Viera and Darryl Hulm communicated with each other verbally at the site.

37. 'Day maker' lights were used at the site during night work. On the night of the incident the positioning of the day makers meant that there was an area under the Brushwood Drive bridge and beyond in a southerly direction that was in darkness.

38.The reflective protective garment worn by Mr Morris (and others at the site) required light to reflect. The reflective wand carried by Mr Morris did not require an external source of light.

The incident involving Mr Morris

39.Borthwick & Pengilly conducted a site specific risk assessment on the evening of 2 February 2006. The risk assessment bears signatures of persons on site including the deceased, Bradley Morris. The risk assessment identified traffic moving around the site as a hazard but did not identify vehicle/mobile plant movements within the site as a hazard.

40.None of the parties had in place a site specific risk assessment which identified vehicle/mobile plant movements within the site as a hazard.

41.The two southbound lanes were closed off to traffic using witches hats and traffic control signs in accordance with Eagle Eye's traffic control plan. Work was scheduled between 20:00 hrs and 05:00 to minimise the disruption to traffic.

42.The speed limit applicable to Alfords Point Road in and about the area in which the subject work was being performed was 40 kilometres per hour and the work area was approximately 3.6 metres away from operational road traffic. The road surface was made of unbroken bitumen. The weather was described as clear and fine.

43.At approximately 00:20 am on 3 February 2006, Bradley Morris was instructed by his supervisor, Alberto Viera, to review the placement of cones (or 'witches hats') being used for traffic management.

44.Mr Morris commenced walking away from Mr Viera to check the cones. He was wearing his reflective clothing and carrying his wand and a two way radio.

45.At approximately the same time, Darrel Hulm, supervisor with Borthwick & Pengilly, instructed Sean Williamson and Nathan Williamson to drive the Ford Twin Cab Utility truck back to the top of the job in order to commence spraying the surface of a section of the road.

46.Nathan Williamson offered to give Ronald Lee a lift back up to his roller at the same time. Nathan Williamson, Sean Williamson and Ronald Lee all entered the Ford Twin Cab Utility truck.

47.Borthwick & Pengilly owned and provided for use on the site the Ford Twin Cab Utility truck, NSW registered number QSH 919. The truck was fitted with a cabin for crew, located behind the driver's cabin of the vehicle. The Truck was also fitted with an audible reversing alarm and an orange flashing light attached to the top of the drivers cabin.

48.The crew cabin restricted the driver's vision in the direction of travel when the vehicle was being operated in reverse in that the driver could only effectively use the side vision mirrors and not the rear view mirror resulting in a significant 'blind spot'.

49.At all material times, Mr Nathan Williamson was authorised by his employer, Borthwick & Pengilly to drive vehicle NSW registration number QSH 919.

50.Mr Williamson was instructed by Mr Hulm to drive the truck back down to the area of the site that required spraying. Mr Hulm elected to drive in reverse rather than travelling forward. There was no designated area within the site in which drivers could turn vehicles so as to travel in a forward direction. No reversing camera was installed in the Borthwick vehicle and no spotter was provided by any of the entities on site.

51.After reversing approximately 70 metres, Mr Williamson felt a bump. He stated that he thought he had hit a witches hat. Ronald Lee exited the truck and realised they had hit a person, later identified as Bradley Morris. Emergency Services were contacted and the rest of the worksite informed of the incident. As a result of the Ford Twin Cab Utility truck striking him, Mr Morris sustained fatal injuries.

52.In terms of noise levels, there was no aircraft noise and the site was not busy around the time the incident occurred. However, at the time of the incident, plant was idling and public road traffic was passing by the site.

Foreseeability

53.The WorkCover Code of Practice "Moving Plant on Construction Sites" ('the Code of Practice') came into effect on 16 January 2004. The Code of Practice was in operation as at the date of the incident and the Code of Practice applied to the movement of both mobile plant and road vehicles, within the site.

Chapter 1, Section 1.2 and 1.3 of the Code of Practice state, in part, that:

"1.2Purpose:

This code of practice provides practical guidance to prevent injury to people where moving plant is used at construction sites.

1.3Scope

This code of practice applies to the use of moving plant at all construction site places of work in NSW, except mines."

54.Chapter 3, Section 3.2 of the Code of Practice states, in part, that:

"Vehicle movement procedures should be developed based on the risk assessment and should be updated each time the conditions on the site change in a way that may affect the health and safety of persons at the workplace. It should also include an assessment of the visibility of plant and traffic from all areas of the work site".

"The use of specific measures to eliminate or control identified risks should be done on the basis of the risk assessment. In particular, consider the following:

isolating vehicles and plant used in or around the site and work area from persons on the site or work area. For example, vehicles or persons may be guided around or past the work area:

implementing safe work distances;

identifying designated delivery and turning areas

planning the direction that plant moves, so the visibility of operators is not restricted;

using spotters/safety observers to control traffic movement".

55.At Chapter 3.3 'controls' for the safe operation of plant were listed and included:

"Vehicle movement procedures for positioning and repositioning of plant -these procedures should include specific procedures when plant is operated near persons, near underground or above ground services, moving plant onto a public road from site or reversing plant;

Instruction and information about hazards;

All persons who perform work using (or on) powered mobile plants must be adequately instructed in the hazards associated with the plant and carrying out the work on site and the control measures for safe work".

56.At Chapter 3.3.3 'controls' for pedestrians near moving plant referred to the need for a spotter and the need to ensure that no persons are at risk before reversing. It was specifically noted a spotter should always be in the sight of the plant operator.

57.Part 5 of Nace's Occupational Health Safety Environment and Rehabilitation Manual required that all hazards and risks be identified and safe work procedures be developed. Furthermore, section 5.3 of the manual required the health, safety environment and rehabilitation manager to assist the workplace manager in the formulation of safe work procedures and to ensure that these procedures are reviewed regularly by workplace inspection, risk analysis reassessment and at committee meetings.

58.Borthwick and Pengilly's safe work plan for asphalting required that Borthwick and Pengilly plan work activities to eliminate or control foreseeable hazards or risks.

59.Prior to the incident Eagle Eye did not have any manual in place in relation to occupational health and safety. Whilst Nace had not put in place a safe work method statement dealing specifically with the relevant task it did have in place, as at September 1999, a truck spotting operation relevant to carting material to and from construction sites which included the need to employ a 'spotter' in relevant circumstances.

The investigation of the incident

60.On 3 February 2006, Inspector Derek Pryor attended the site and made observations contained in a Factual Inspection Report dated 29 May 2006.

61.On 3 February 2006 Inspector Derek Pryor took a number of photographs of the site.

62.On 3 February 2006 Inspector Derek Pryor issued Borthwick & Pengilly with Prohibition Notice No. 147454 due to the risk of injury created by restricted vision of the Ford Twin Cab Utility truck.

63.The Inspector did not issue any prohibition or improvement notice to RTA.

64.After the incident WorkCover issued an industry Safety Alert titled 'Moving Plant on Construction Sites' (undated).

Changes to systems of work after the incident

65.In March 2006, following the incident, the RTA created a two-page Tip Sheet titled 'Working on foot in proximity to moving plant- T002' and revised the 'Traffic Control at Work Site Manual'.

66.Section 9.26 of the manual dealt specifically with safety within work sites, noting in relation to VMPs:

"Of equal importance is the safety of personnel working within the work site close to mobile plant or vehicles and remote from other road users vehicles. The principles outlined in this section will provide guidance on the implementation of safe working practices within work sites".

67.Within section 9.26 a number of risks were specified as likely to exist at work sites. Relevantly, these included:

The proximity of people to mobile plant (workers are not to work within 3 metres of moving plant);

Plant being operated in reverse;

Noisy work locations masking the sound of approaching plant;

Working at night;

Limited sight distances;

Working beneath overhead activities such as bridges and steel erections;

Workers, other than operators of plant, riding on plant; and

Intensity, speed and acceptable clearance to any adjacent traffic.

68.It was also noted within section 9.26 that a site VMP should be prepared for vehicle movements within work sites where:

There are repetitive movements of plant greater than 20 per day; or

Plant on site is travelling faster than 40kph; or

Plant is reversing long distances (greater than 100 metres); or

There are other specific hazards to pedestrians on site from plant carrying out the work.

69.Section 9.26 referred to specific tasks. Where reversing plant was identified as an issue the following points were made:

Ensure plant items are fitted with an automatically activated, clearly audible and working reversing alarm and lights;

Do not have workers working within 3 metres of moving plant such as rollers, graders, water carts etc;

Use a spotter when plant is reversing near workers.

70.After the incident Eagle Eye made changes to its occupational health and safety system with respect to the control of plant and vehicle movements in and about sites at which it provides traffic control services and, in particular, with respect to reversing plant and reversing vehicles. For example, it instructed supervisors and staff that there should not be any reversing on a job site without a spotter.

71.After the incident Nace reviewed its occupational health and safety system with respect to the circumstances of this incident. Nace now requires that vehicles on work sites are fitted with reversing cameras, lights and beepers and that the reversing of vehicles on work sites is minimised and monitored.

72.After the incident Borthwick & Pengilly made changes to its occupational health and safety system with respect to the control of plant and vehicle movements in and about work sites, including:

Fitting a rear view camera to the vehicle with a screen in the cabin for the driver;

Installing an additional rear spot light so that when the vehicle reverses it provides additional lighting to the area immediately behind the vehicle;

Avoiding reversing where possible; and

Use of a spotter when plant is reversing near workers.

70.As a result of the defendant's failures people other than its employees, in particular, Bradley John Morris, were exposed to the risk. The death of Bradley John Morris was a manifestation of the risk.

Relevant Principles

8 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(2) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 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).

9 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]).

10 Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]:

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

11 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]).

12 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. In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, Staff J observed at [9]:

In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ... are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]:

'[i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.'

13 Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia:

. . .

(2)Aggravating factors

. . .

(d)the offender has a record of previous convictions,

...

(g)the injury, emotional harm, loss or damage caused by the offence was substantial,

. . .

(3)Mitigating factors

. . .

(e) the offender does not have any record (or an significant record) of previous convictions,

...

(g)the offender is unlikely to re-offend,

...

(k)a plea of guilty by the offender (as provided by section 22)

(l)the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m)assistance by the offender to law enforcement authorities (as provided by section 23)

. . .

Consideration

14 In a consideration as to penalty, the Court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474):

... in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. 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 ...

15 The defendant, Roads and Maritime Services (RMS), is the successor to the Roads and Traffic Authority of New South Wales. The proceedings arise from an incident which occurred on 2 - 3 February 2006, when an employee of Eagle Eye Traffic Services (which was providing traffic control services at a road re-surfacing site at Alfords Point Road, Alfords Point) was hit by a reversing truck and suffered fatal injuries on the construction site.

16 In assessing the gravity of the offence, the prosecutor presses the RMS had primary responsibility for occupational, health and safety at the site. At issue is whether under the existing site safety plan the responsibility for RMS was one of "monitoring" the worksite (such as assessing progress on site; ensuring adherence to quality controls; conducting environmental checks; ensuring occupational, health and safety standards). The defendant contends in assessing the objective seriousness of the offence that its employees were supervisors on site and therefore not fully responsible or liable for occupational, health and safety breaches. The defendant contends its role was, in accordance with the safe work procedures in place, a "monitory" role and therefore it carries a lesser burden of liability than those contractors on site who, under the existing on-site agreements, carried responsibility for safe working.

17 At the heart of the dispute is the various contractual arrangements which allowed the RTA to not have a full-time presence on the site. Evidence satisfies a surveillance officer and a works supervisor of the RTA attended the site only on occasions. The RTA had expressly appointed NACE to the position of principal contractor. The primary controller of the site therefore, it is contended by the RTA, was NACE. The principal contractor and other subcontractors had a presence with full-time employees on site and the defendant contends they each had responsibility to formulate the safe working procedures to be followed after undertaking the appropriate risk assessments. Each had satisfied the RTA that they had the requirements and qualifications to design and implement adequate occupational health and safety skills. Each had the Traffic Control at Worksites Manual. All were accredited. Each had access to the RTA for guidance.

18 Generally, the defendant submitted, the principal contractor, Nace, had the responsibility to ensure that all sub-contractors had safe work method statements and, under the NACE system, to ensure these were implemented and adhered to at the site.

19 On the charge date at the worksite some safety measures were in place. The deceased was wearing reflective protective garment; the truck had an operating and audible reversing alarm; and an orange flashing light was located on the top of the truck driver's cabin. However, the positioning of the "day maker lights" meant that there was an area in darkness and there was poor visibility.

20 Further, the RTA manual at 8.3.6. addressed safe working procedures and the need for a "spotter" to assist and direct incoming traffic to the site. Whilst there was communication between the employees of each contractor, there was no co-ordination of contractor's activities through communication between the employees of each contractor. The defendant revealed it had a UHF radio system available for contact between it and the sub-contractors on site but there was no evidence such a system was in use to assist with the safe departure of vehicles. It appears it was used to direct the driver onto the worksite but not used for their departure. There was no system on site interconnecting the sub-contractors or co-ordinating internal foot and traffic movement.

21 There was no spotter to organise traffic movement within the worksite or to assist vehicles leaving the site. There was no specific acknowledgement of necessary procedures to be designed for traffic control within the site in the RTA manual.

22 In any of the safe work method statements, there was no recognition of the need for a defined safe distance deemed necessary between employees on foot on site and the movement of working vehicles within the site.

23 The Court accepts from an examination of all the evidence the defendant had an overriding responsibility for OHS at this place of work. The Works Supervisor - Civil Operations, had OHS responsibilities at the site; he regularly visited the site; the responsibility for safety was accepted by the defendant in its "Traffic Control at Work Sites" manual; the manual at the work site was the key document, not only for the defendant but also its contractors; the RTA had approved all principal and sub-contractors' safe working plans and, because of the limitation in the RTA model, there was a failure to address procedures for on-site traffic movement. That, however, does not exonerate the other contractors who all had an obligation to risk assess and design a safe work method for vehicle movement within the site (Inspector Rowe v Eagle Eye Traffic Services [2010] NSWIRComm 31).

24 In the circumstance the Court accepts the risk, if not obvious, was foreseeable. The foreseeable element to the offence makes it more serious. Whilst the reasonable forseeability of an incident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 432 (at 452)), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700; James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported decision of Hill J, Matter No. CT 1280 of 1995, 2 April 1997 (at 16)).

25 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 (Schmidt J, 25 February 1994, unreported)). There were known steps that could have been taken which, either singly or in combination, would have eliminated or reduced the risk. These steps have now been implemented by the defendant. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practicable.

26 There is a need to consider the element of deterrence in the consideration as to penalty. The Full Bench encapsulated the approach to deterrence in the following passages in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 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 Limited (No. 2) [2000] NSWIRComm 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.

The Full Bench also affirmed what was said by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 (at 388):

the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.

and in Capral at [76] stated:

... the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence ...

and further at [76]:

. . . The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. . . .

27 The attitude of a defendant to questions of workplace safety and any steps taken to improve safety following the breach can be relevant to specific deterrence. Subsequent to the incident occurring, the RTA has initiated a number of measures to minimise/eliminate the risks associated with the interaction between moving vehicles and workers on site including: the issuing of the "Working on Foot in Proximity to Plant" advisory sheet; amendment to the manual to include a section 9.26 direction re work on foot near plant; the development of the "Ensite" system which requires direct involvement by the RTA in risk assessment procedure; RTA development of Leadership on Worksites Training which includes a focus on the OHS issues such as working on foot in proximity to moving plant.

28 The post incident activities of the RTA are given consideration, however, the defendant continues to perform road and bridge construction and maintenance work and, therefore, remains involved in a dangerous industry. It is the defendant that sets the standards/guidelines for all companies that do work on their road sites. Therefore, an element of specific deterrence is factored into penalty.

29 As to general deterrence, there must be a reminder to all contractors who work on such a dangerous task as road building and road maintenance that each must address work safety on site and each has individual responsibility for its work practices. Here, the RTA's manual failed to identify the need for a risk assessment of on-site traffic movement and no relevant individual contractor independently identified the risk. An element of general deterrence is necessary to remind all occupiers on a multi-contractual site of their individual OHS responsibilities. All such contractors, be they principal contractors, sub-contractors or owners of the site carry the same obligation to ensure safe working. There is a further obligation where there are a number of contractors to ensure the co-ordination of all movement on site of persons on foot when there is traffic movement within the worksite.

30 As the Court held in Inspector Rowe v Eagle Eye Traffic Services Aust Pty Ltd [2010] NSWIRComm 31 at [27]:

As to general deterrence, there must be an element in each penalty to be determined. All the steps taken by each defendant after the incident were simple and straightforward and could have been taken prior to the incident. Roadwork is an inherently dangerous task and sites must be rigorously risk assessed. This did not occur on this site. Co-ordination must be a priority on sites with multi sub-contractors. I accept, in accordance with modern industrial practice, it may be a sensible industrial decision for an authority like the RTA to contract out the upgrade and maintenance of its roads to specialist sub-contractors with specific skills. Hence, on this site, we had the Planner, the Asphalter and the Road Traffic Controller. Such contracting out, however, must ensure there is a rigorous planning instruction and training of all employees brought onto a multi-disciplinary worksite. Job specifications must be clear and each defendant must ensure there is, on the worksite, full compliance with its safety obligations. In this circumstance, while each party could present safe work models and plans and there were site safety meetings, there was a failure to co-ordinate each sub-contractor's operation. That failure was a communication failure on site and, as a result, the Asphalter's truck caused the death of a Traffic Controller.

31 As said in Eagle Eye, the failure to both co-ordinate and provide basic site safety features (identification of the risk, radios, a spotter, safe work distances identified) led to the real risk which eventuated with the death of Bradley John Morris.

32 In this circumstance, the words of Hill J in Tyler v Sydney Electricity (1999) 47 IR 1 at [5] are most apposite:

The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant . . .

The incident demonstrates the gravity of the risk to employees, each of whom are performing particular tasks for different employers on the same work site, but who work in isolation, without the necessary safety procedures being in place and where there is no communication between the parties. The risk in such a circumstance is reflected in a serious breach of the Act. In this circumstance the risk became a reality. This was a serious offence.

33 I accept the RTA has treated the incident and responded to the incident with concern and formally expressed its concern and remorse. I accept a demonstration of that concern was represented by management's presence before the Court. Its contrition is further demonstrated by the early indication of a plea of guilty.

34 Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 provides for mitigating factors to be taken into account in determining the appropriate sentence. I accept there are subjective elements which must be given consideration in the assessment of penalty.

35 There was an occupational health and safety system in operation at the time of the incident. I accept it was a comprehensive system as detailed in the affidavit of Mr Shailendra Tripathi, Acting General Manager (OHS) at the RTA. The work safe system in place for maintenance road work has been significantly further refined and is a living document which is continually re-assessed.

36 I accept the corporate reputation and personal reputation of the directors and management of the RTA has probative force which allows a measure of mitigation of penalty (Inspector Olive v Transfield Pty Ltd [2001] NSWIRComm 295 at [23]). The RTA/RMS is a good community citizen, as demonstrated by its financial and non-financial contributions to various community groups and its commitment and support of various charities as outlined in the evidence.

37 The RTA provided full co-operation with the prosecutor during its investigation.

38 In determining the penalty to be imposed on RTA/RMS, the contribution of other entities to the risk may be considered in mitigation (Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 at [241] - [242]). The contributions to the risk by contractors such as NACE, Borthwicks and Eagle Eye Traffic Control, has been considered previously by this Court in Eagle Eye. Each were found equally liable for the risk. However, the prosecutor submits this offence by the RTA is more serious than that of the other contractors on site because of its overall control of the site. The defendant contends "it was the most furthest removed" from the incident than were the contractors who were present and had daily control of the site. Given the manual's description of responsibility and the particular recorded obligations on the RTA Works Supervisor and as it was the defendant's undertaking and place of work, I am satisfied this defendant carries greater liability for the breach.

39 In R v Wickham [2004] NSWCCA 193, the Court referred to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act and adopted the principle expressed in Veen v The Queen (No 2) (1988) 164 CLR 465 (at 477) that a prior record is also relevant:

... to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.

40 Consistent with the principle set out in Veen No 2 the defendant submitted the previous convictions of the RTA do not require a more severe sentence to be imposed in this matter.

41 I accept the defendant in its planning for the task and in its procedure manual, attempted to traverse all the necessary requirements that needed to be met to ensure safety by its contractors, including the head contractor, NACE. However, the defendant retained overall responsibility for OHS standards on site. It also provided the guidelines for other contractors in their design of safe working procedures and it did not identify the risk provided to persons on foot by moving vehicles inside the site. Consequently, notwithstanding other risk assessments, this neglect became mirrored in all other relevant safe work method statements.

42 An issue arose as to the maximum penalty for the offence and the impact on the maximum penalty under the statute given the change to the defendant's character/title. The RMS, as a new corporation, has no offences recorded against it. The prosecution submitted that the maximum available penalty for this offence is $825,000 because the defendant is a "previous offender" under the Act and, further, that the Court should consider the nature of the prior breaches of the Act by the RTA. The prosecutor tendered WorkCover's print out recording the RTA's prior conviction record and WorkCover's print out recording the Crown in the Right of the State of New South Wales prior convictions record. The prosecutor also provided the judgments given in the Court's previous sentencing of the RTA for prior offences.

43 Under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, if the offender has a record of previous convictions, that can be an aggravating factor in the consideration as to penalty under the Act:

21A Aggravating, mitigating and other factors in sentencing

...

(2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

...

(d) the offender has a record of previous convictions ...

The prosecution presses consideration of the prior offences of the RTA as an aggravating factor in the Court's consideration as to penalty.

44 In support of this proposition, reliance is placed upon the fact the RTA was a corporation and, for the purposes of any Act, it was a statutory body representing the Crown (s 46 of the Transport Administration Act 1988 historical version). An agency of the Crown may be a corporation (s 120(4) and (5) of the OHS Act). The OHS Act bound the RTA (as a statutory body representing the Crown) (s 118 of the OHS Act). The s 8(2) contravention was committed by an agency of the Crown that was a corporation, namely, the RTA (s 119(1), (3)(a) and (4) of the OHS Act).

45 The RTA, however, has since been abolished or, in other words, "dissolved" and its "successor" is the Roads and Maritime Services (Schedule 7, cl 183 of the Transport Administration Act 1988, as amended by the Transport Legislation Amendment Act 2011).

46 The RMS is a corporation and it is also a NSW Government agency (s 45 of the Transport Administration Act 1988). As a NSW Government agency, the RMS is a body that has the status, privileges and immunities of the Crown (s 13A of the Interpretation Act 1987).

47 The defendant conceded the maximum penalty was $825,000 for the offence but this was not because it concedes it is "a previous offender" but because "specifically" under the Act the circumstances where there is a change of name of the corporation is addressed in s 121 of the Occupational Health and Safety Act 2000:

121 Penalties in respect of proceedings against the Crown

(1) In this section, penalty means:

...

(c) the amount payable under an order made under Division 2.

(2) The penalty in respect of proceedings against the Crown is the penalty applicable in respect of offences committed by a corporation.

(3) If that penalty differs for previous offenders, the Crown is a previous offender in relation to particular proceedings against the Crown only if the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown (or any predecessor of that agency).

48 Relevantly, under s 121(3) therefore the defendant concedes the Crown (here the RMS) is a previous offender because the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown or any predecessor of that agency (here the RTA).

49 However, Ms McDonald for the RMS, relies upon the reasoning of Hungerford J in WorkCover Authority of New South Wales (Inspector Gilbert) v Energy Australia (formerly Sydney Electricity) (1981) 85 IR 99 to submit the offender is not a "previous offender". His Honour in that matter was considering (given Energy Australia was the amalgamation of several different entities and there was not merely a name change) whether the ordinary rule, that on the dissolution of a statutory corporation any criminal charge lapses, was applicable. Where the legislature creates a successor statutory corporation, as in the Energy Australia Case, while "the assets, rights and liabilities" were transferred under the legislation, Hungerford J held there was only a transfer of "civil" liabilities. For there to be a transfer of the "criminal" liability, his Honour held the relevant legislation had to specifically so state.

50 There are two legislative provisions to consider as to the intention of the legislature and what liabilities are carried by the new corporation. Of relevant firstly is cl 183 of Schedule 7 of the Transport Administration Act 1988 wherein it states:

183 Abolition of Roads and Traffic Authority

(1) The Roads and Traffic Authority of New South Wales is abolished.

(2) The assets, rights and liabilities of the Roads and Traffic Authority are, on the abolition of that Authority, transferred to Roads and Maritime Services.

(3) Schedule 4 applies to the transfer of the assets, rights and liabilities of the Roads and Traffic Authority by the operation of this clause and so applies as if this clause were an order to which that Schedule applies when this clause takes effect.

(4) A reference in any Act (other than this Act), in any instrument made under any Act or in any document of any kind to the Roads and Traffic Authority is to be construed as a reference to Roads and Maritime Services.

(5) The Roads and Maritime Services Fund is a continuation of the Roads and Traffic Authority Fund.

and the relevant sections of Schedule 4 of that Act states:

Schedule 4 Transfer of assets, rights and liabilities

1Definitions

In this Schedule:

...

liabilities means any liabilities, debts or obligations (whether present or future and whether vested or contingent and whether personal or assignable).

...

3Vesting of undertaking in transferee

When any assets, rights or liabilities are transferred by an order to which this Schedule applies, the following provisions have effect (subject to the order):

(a) those assets of the transferor vest in the transferee by virtue of this Schedule and without the need for any conveyance, transfer, assignment or assurance,

(b) those rights and liabilities of the transferor become by virtue of this Schedule the rights and liabilities of the transferee,

(c) all proceedings relating to those assets, rights or liabilities commenced before the transfer by or against the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,

(d) any act, matter or thing done or omitted to be done in relation to those assets, rights or liabilities before the transfer by, to or in respect of the transferor is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee,

(d1) the transferee has all the entitlements and obligations of the transferor in relation to those assets, rights and liabilities that the transferor would have had but for the order, whether or not those entitlements and obligations were actual or potential at the time the order took effect,

(e) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent that it relates to those assets, rights or liabilities but subject to regulations or other provisions under Schedule 7), to be read as, or as including, a reference to the transferee.

51 On a reading together of these legislative provisions, this was not simply a transfer of "assets, rights or liabilities" (Schedule 7, cl 183 of the Transport Administration Act 1988). By Schedule 4 of the Transport Administration Act 1988, "liabilities" are defined as "obligations" vested or contingent (Schedule 4,1); all "proceedings" pending or begun are transferred (Schedule 4, 3c); "any act in relation to a liability" is transferred (Schedule 4, 3(d)); the transferee has all the entitlements and "obligations" of the transferor in relation to those potential liabilities (Schedule 4, 3(d1)).

52 There is, in a reading of all these provisions, a clear intention on the part of the legislator to transfer all liabilities (read obligations) under the Act.

53 The Full Bench considered some relevant provisions under the Occupational Health and Safety Act 2000, which related to a different set of provisions in a transfer of energy entities, and held in Country Energy v Malone [2005] NSWIRComm 78; (2005) 138 IR 221 at [51] to [53]:

51 The Occupational Health and Safety Act 2000 dealt with the issue in ss 118 to 123. Sections 118 and 119 provided that the Act binds the Crown and that the Crown in any capacity may be prosecuted for an offence against the Act or Regulations. Further, that in respect of an offence against the Act committed or alleged to have been committed by an agency of the Crown that is a corporation, the corporation itself and not the Crown is to be prosecuted for the offence.

52 Section 123 deals with proceedings against successors of government corporations and s 123(1)(b) provides that for the purposes of the section the expression "government corporation includes a State owned corporation" and s 123(2) and (3) are to be read in the light of that definition. Those provisions are in the following terms:

(2) Proceedings for an offence against this Act or the regulations that were instituted against a government corporation before its dissolution, or that could have been instituted against a government corporation but for its dissolution, may be continued or instituted against its successor if the successor is a government corporation.

(3) Subsection (2) extends to proceedings that could have been instituted against a government corporation because of the operation of that subsection.

53 The legislature in enacting these provisions, particularly s 123, appears to have accepted the approach of Hungerford J in the 1998 judgment in Energy Australia that if it was intended to transfer criminal liability from one statutory corporation to another or to equate a defunct body and its successor for such purposes it could be expected that the words used by the legislature would clearly state the requisite intention. We do not consider that the provisions considered in these proceedings do that.

54 Relevantly, s 123 of the Occupational Health and Safety Act 2000 states:

123 Proceedings against successors of government corporations

(1) In this section, government corporation means:

(a) a corporation that is an agent of the Crown, or

(b) a State owned corporation, or

(c) a corporation that is a local health district or statutory health corporation within the meaning of the Health Services Act 1997, or

(d) a local council or county council, or

(e) a public or local authority that is declared by the regulations to be a government corporation for the purposes of this section.

(2) Proceedings for an offence against this Act or the regulations that were instituted against a government corporation before its dissolution, or that could have been instituted against a government corporation but for its dissolution, may be continued or instituted against its successor if the successor is a government corporation.

(3) Subsection (2) extends to proceedings that could have been instituted against a government corporation because of the operation of that subsection.

(4) A penalty notice served on a government corporation for an offence against this Act or the regulations or any penalty paid by a government corporation in respect of such a penalty notice:

(a) is taken to be a penalty notice served on its successor if the successor is a government corporation, or

(b) is taken to be a penalty paid by any such successor,

as the case requires.

55 I distinguish the authority of Country Energy v Malone. There was no consideration in the reasoning directed to the effect of s 121(3). The Full Bench, in the circumstances, was only required to consider s 123. Relevantly, s 121(3) states:

121 Penalties in respect of proceedings against the Crown

...

(3) If that penalty differs for previous offenders, the Crown is a previous offender in relation to particular proceedings against the Crown only if the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown (or any predecessor of that agency).

...

56 In Inspector Ian Lancaster v Rail Corporation of New South Wales, [2008] NSWIRComm 189, Haylen J followed the reasoning in Energy Australia to hold a new entity, Rail Corp, was a first offender. His Honour was satisfied in that matter that there was a sale to a statutorily approved purchaser but with no transfer of assets or liabilities to any other statutory or State corporation. There was therefore no statutory successor so no transitional provision re liabilities was effective.

57 However, his Honour, Haylen J also reasoned as to liability at [43]:

43 The interaction of the provisions of Part 7, Division 3 of the 2000 Act need to be considered against the history of the operation of the 1983 Act and the difficulties thrown up when statutory corporations were restructured within government agencies or were dissolved and the functions handed to new entities, including government agencies. This history was briefly, but specifically, alluded to in the Attorney General's Second Reading Speech when he stated that the new provisions "arose in the context of proceedings taken against government agencies". It has long been accepted that it may be possible to discern the intention of the legislature not only by inference after an examination of the legislation as a whole and that sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted (see Saraswati v The Queen (1990) 172 CLR 1 per McHugh J at 21; see also Shorten v David Hurst Constructions Pty ltd [2008] NSWCA 134).

Therefore the legislature enacted s 123 to address the legal difficulties of liability met when governments recreated and/or dissolved government agencies and transferred functions.

58 His Honour also stated at [52] - [53]:

52It appears that the clarification being introduced by the enactment of Part 7, Division 3 of the 2000 Act was that, where a statutory corporation was the successor to another statutory corporation, there would no longer be a need to scrutinise transitional and other provisions to see if there was a clearly expressed intention to transfer the criminal liability from the previous corporation to the successor Crown corporation. Once there was successorship and the prior agency ceased to exist, s 120 operated so that the responsible agency for the purpose of proceedings against the Crown was the successor agent of the Crown and it was to be the responsible agency for purposes of prosecutions under the 2000 Act. ...53 To bring about this result, Part 7, Division 3 of the 2000 Act commences with s 118 repeating the previous provision of the 1983 Act namely, that the Occupational Health and Safety Act binds the Crown in Right of New South Wales. The Division then addresses what agency will be responsible for penalties and what agencies may be proceeded against for breaches of the Act. The Division proceeds upon the basis of identified responsible agencies (being the agencies actually responsible for the breach) rather than looking to the Crown generally and in particular, looking at the breach history of the responsible agency rather than the Crown generally: this approach reverses the view expressed in WorkCover Authority of New South Wales (Inspector Tuckley v The Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 and later, with respect to Hungerford J, wrongly continued in Inspector Keelty v Crown in Right of the State of New South Wales (Police Service of NSW) (No 3) (2002) 112 IR 144 where it was held that the Court was concerned not only with the convictions of the identified responsible Department but for the purposes of sentencing, all prior convictions of the Crown were relevant. Importantly, Division 3 makes these provisions by looking at responsible agencies and successor/predecessor agencies.

His Honour then went on as to penalty:

54Section 121 deals with penalties with respect to proceedings against the Crown. By s 121(2), the penalty in respect of proceedings against the Crown is designated to be the penalty applicable in respect of offences committed by a corporation. Such a corporation is an agency of the Crown that is a corporation under s 119. Section 121(3) then operates such that if the penalty differs for previous offenders, the Crown is a previous offender in relation to particular proceedings against the Crown, only if the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown. In this way, the 2000 Act makes it clear that a Crown agency with a clear record will not be a prior offender under the Act merely because some other agency of the Crown is a prior offender: the specific agency must be the prior offender when subsequently charged under the 2000 Act and only its record, not that of the Crown generally, is relevant for sentencing purposes. It is in this context that a savings provision is inserted so that a Crown agency will be a prior offender where it has no prior offences but where the predecessor agency did have a criminal record. The reference to "predecessor" in s 121(3) is to be read in the context of the operation of the whole of Part 7, Division 3: that Division focuses upon successors such that a predecessor Crown agency has that status where the existing Crown agency is the successor of that previous, dissolved, Crown agency. The word "predecessor" appearing as it does as a saving provision in s 121(3) does not alter the nature of Part 7, Division 3 of the 2000 Act dealing with successorship. (emphasis added)

55The operation of s 121 in Part 7, Division 3, therefore, is concerned with Crown agencies that are dissolved and replaced by successor Crown agencies. ... For the operation of Division 3 the question will be whether or not, after dissolution of the previous agency, the newly created Crown agency was intended by the legislature to be the successor of the dissolved agency. This is not an unusual approach: it will be recalled that in Energy Australia, Hungerford J held that there was no successor (and for the purposes of this case, therefore no "predecessor") where the previous Crown agency continued to exist and where there had been no more than a transfer of staff and assets from the previous agency to the newly created agency. This is an apt description of the operation of the Amendment Act creating RailCorp.

59 I adopt the reasoning of Haylen J.

60 In this matter, the RTA has been abolished. All its functions have been combined with Maritime Services and all the liabilities (that is, the obligations) of the RTA have been transferred to the RMS. Since the judgment of Hungerford J, the OHS Act 2000 has been proclaimed. Part 7, Division 3, has the effect the RMS, as the newly created agency, was intended by the legislature to be the same responsible agency as the RTA. It absorbed all its functions and its assets and liabilities/obligations. The fact that the new agency absorbed another function (the Maritime Services) does not distract from the fact the RMS absorbed all the functions of the RTA as its successor. The RTA was therefore the RMS's predecessor.

61 Further, the legislative provision in s 121 details the acts and omissions of any predecessor agency - namely, the RTA, are relevant as made clear in the definition of "penalty" under s 121 and the provision in the schedules. Therefore, the facts as to the prior breaches of the Act by the RTA come before the Court.

62 The Court therefore takes into consideration the judgments placed before it of the prior convictions of the RTA. However, the Court's attention has not been directed to any particular prosecution as being of a similar nature to this incident. The Court notes some of the prior offences reveal serious breaches of the Act. Those prosecutions and convictions are of such a significant nature that they reflected in serious penalties under the maximum penalty of $825,000.

63 The RMS acknowledge fault as per the charge. It acknowledged it performs the RTA functions that forms part of the charge.

64 Importantly, it recognises that some RTA prior convictions were from the same undertaking that it currently performs.

65 I accept the RTA record of convictions is such as to provide an aggravating force in the Court's consideration of penalty.

66 A Victim Impact Statement has been received from both the mother and the father of the deceased pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999. As Spigelman CJ said in R v Mansour [1999] NSWCCA 180 at [7]:

It is entirely appropriate that trial judges acknowledge the impact of crime on victims and their families in this public way. The purposes of the criminal justice system are well served by such public recognition of the grief imposed on families of victims.

67 In Inspector Glass v Foamex Polystyrene Pty Limited [2004] NSWIRComm 100, Boland J (as he then was) said at [43]:

. . . 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.

68 The Victim Impact Statements of both the mother and the father reveal the horror and suffering of parents who have lost a son. A most poignant comment was made by the father who spoke of sending a son off to work and he just does not return home that evening. The Court expresses its sympathy to all the family.

69 As the law currently stands, the Victim Impact Statement will not, of itself, attract any increase in the penalty imposed. However, the Court takes into consideration the unspeakable grief suffered by the parents in the loss of their loving son. He was a young man just starting out in his work life and after leaving for work one day he did not return home. It is a suffering to which no family should be exposed.

70 The risk to safety here included a risk to life and it is for its actions and inactions, as particularised, in causing that risk that the defendant is to be punished.

Orders

71 The Court makes the following orders:

1.In Matter No IRC186 of 2011, I find the defendant guilty of the offence as charged.

2.The defendant is fined in the sum of $150,000 with a moiety to WorkCover Authority of New South Wales.

3.The defendant shall pay the costs of the Prosecutor. 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.

Decision last updated: 25 May 2012