Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Halcroft v Hardy Bros Mining and Constructions Pty Ltd [2012] NSWIRComm 140
• Hearing dates: 12 & 13 June, 2012 (Mr Robert Hardy); 14 September 2012 (WesTrac); 19 November 2012 (all defendants)
• Decision date: 04 December 2012
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

(a) the defendant, WesTrac Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter IRC 803 of 2011 to which it entered a plea of guilty;

(b) the defendant is fined the sum of $150,000 with half that sum to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

(a) the defendant, Hardy Bros Mining and Constructions Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter IRC 802 of 2011 to which it entered a plea of guilty;

(b) the defendant is fined the sum of $105,000 with half that sum to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

(a) the defendant, Robert Leslie Hardy, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26 as particularised in the further Amended Application for Order in Matter IRC 804 of 2011 to which he entered a plea of guilty;

(b) the defendant is fined the sum of $11,250 with half that sum to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) s 8(2) s 26(1) - construction of dam on mine site - sub-contractor using leased dozer - need to repair ripper tine - repairs the responsibility of company leasing dozer to sub-contractor - lack of appropriate lifting gear at site - repairs attempted in field - heavy tine falls during lift - leasing company employee suffers loss of leg in accident - serious risk foreseeable - leasing company bears most responsibility for accident - defects in systems used by all defendants - general and specific deterrence - subjective factors considered - contrition and remorse demonstrated - application under s 10 (Crimes) Sentencing Procedure) Act - application refused - penalties imposed
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Occupational Health and Safety Act 2000
• Cases Cited: Inspector McGrath v Edmen Recruitment Pty Ltd [2012] NSWIRComm 108; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312
• Category: Principal judgment
• Parties: Inspector Bronwen Halcroft (Prosecutor); Hardy Bros Mining & Construction (Defendant in 11/802); WesTrac Pty Ltd (Defendant in 11/803); Robert Leslie Hardy (Defendant in 11/804)
• Representation: M Moir of counsel (Prosecutor); Mrs W Thompson of counsel (Defendants in 11/802 and 11/804); B Hodgkinson SC (Defendant in 11/803); Criminal Law Practice, Legal Group; WorkCover Authority of NSW (Prosecutor); Carrol & O'Dea Lawyers (Defendants in IRC 11/802 & IRC 11/804); Middletons (Defendant in 11/803)
• File Number(s): IRC 802 of 2011; IRC 803 of 2011; IRC 804 of 2011

Judgment

BACKGROUND

1 The three defendants before the Court have entered pleas of guilty in prosecutions brought pursuant to the provisions of the Occupational Health and Safety Act 2000 ("the Act"). Hardy Bros Mining and Constructions Pty Ltd ("Hardy Bros ") and its director, Robert Leslie Hardy ("Mr Hardy"), have pleaded guilty to a breach of s 8(2) of the Act, with Mr Hardy's breach arising by operation of s 26(1) of the Act. WesTrac Pty Ltd ("WesTrac") has entered its plea of guilty in relation to a breach of s 8 (1) of the Act.

2 All breaches arise out of a workplace accident that occurred at the Eraring Power Station ("Eraring"), Rocky Point Road, Eraring on 2 July 2009. The work at Eraring involved the construction of an attemperating (cooling water storage) reservoir at the site. The principal contractor was Haslin Constructions Pty Ltd ("Haslin"). Hardy Bros were in the business of earthmoving, mining and civil construction and had been contracted by Haslin to work at the site. WesTrac was in the business of renting Caterpillar heavy machinery to the construction and mining industry and also provided maintenance on machinery that was not undertaken by the lessee. In May 2009 WesTrac leased a D11R heavy track-type tractor to Hardy Bros for use on the site on a "dry hire" basis (being without an operator). The D11R dozer was the only machine that WesTrac had on site.

3 On 2 July 2009 the D11R tractor was in need of repair due to a damaged ripper tine. Mr Stephen Race, employed as a field service plant mechanic by WesTrac, was instructed to attend the Eraring site and inspect the damaged ripper tine, take measurements for its replacement and to ensure that a correct tine was obtained. Mr Race's normal vehicle was not available that day and he was provided with a temporary vehicle that did not have the same equipment that he would usually take on such an inspection. Mr Race took measurements of the tine and returned to a nearby WesTrac branch and sourced a replacement. He then travelled to Mt Thorley to pick up the replacement tine, weighing approximately 1352 kilos, and transported it in his temporary vehicle to the Eraring site.

4 After arriving back at the Eraring site with the replacement tine Mr Race made enquiries of Mr Dennis Dean, the Maintenance Supervisor employed by Hardy Bros, who was responsible for supervision of works in that area of the site. Mr Race asked Mr Dean how the tine was to be lifted and was told that such lifts were usually performed by using the palette forks on a telehandler. Mr Race asked Mr Dean if there was a lifting attachment for the telehandler, such as a jib, but no jib attachment was available.

5 Mr Nathan Bowerman, a second-year apprentice mechanic employed by Australian Group Training NSW but hosted by Hardy Bros, was working at the site and offered to operate the telehandler to remove the tine from Mr Race's vehicle. Mr Dean permitted this assistance to be given by Mr Bowerman. Mr Bowerman and Mr Dean obtained lifting equipment from the Hardy Bros' workshop container, using a flat webbing synthetic sling approximately 3 metres long, a piece of chain approximately 800mm long with a "grab hook" on one end and a 12mm bolt on the other end. They were unable to find a shackle. Mr Race inspected the sling to attach the lifting equipment to the tine. Mr Bowerman operated the telehandler and lifted the tine (with the load slung from the lifting fork of the telehandler) from the utility vehicle and placed it on the ground.

6 During this process Mr William Hasthorpe, employed by Hardy Bros as a plant operator, was operating a dozer. Mr Race and Mr Bowerman directed Mr Hasthorpe to reverse the dozer and lower the damaged tine to its fullest extremity and to embed it in the dirt to approximately two-thirds of the tine length. When this task was completed Mr Bowerman returned to the telehandler. Mr Dean in the meantime had been called away. Mr Race in due course directed Mr Bowerman and Mr Hasthorpe, by using hand signals, to place the ripper box and tine in position.

7 The tine was suspended when it was discovered that the tine was facing backward. While the tine was suspended, Mr Bowerman got out of the telehandler and together with Mr Race manually rotated the tine to face the correct way. Mr Bowerman returned to the telehandler and lifted the tine into place below the ripper box but the ripper box was incorrectly aligned and the tine could not be fitted into the ripper box. Mr Race stood in close proximity to the dozer to inspect the alignment of the tine and the ripper box. While the tine was still suspended Mr Race instructed Mr Hasthorpe to tilt the ripper box in order to adjust the alignment and during this process the tine was dislodged and moved, the boot of the ripper touched the ground and took the load off the telehandler. In turn this allowed the grab hook to disengage from the chain lengths and the sling. The tine fell striking Mr Race in the back then fell across his right leg fracturing it and then fell onto his left foot trapping his boot beneath it. In this accident Mr Race sustained a crush injury to his lower right leg which was later surgically amputated below the knee. Mr Race now has a prosthetic leg and has ongoing physiotherapy and rehabilitation.

8 Having regard to the legislative provisions, the particulars of the breach alleged against Hardy Bros and originally alleged against Mr Hardy as a director were in almost identical terms. For present purposes it is sufficient to record the particulars of the alleged breach of Hardy Bros under s 8(2) of the Act charging that the corporation had failed to ensure that persons not in its employment (and in particular Stephen Race and Nathan Bowerman) were not exposed to risk to their health and safety arising from the conduct of the defendant's undertaking or at the defendant's place of work. The particulars of that charge were as follows:

(a) the risk was the risk of a ripper tine falling in an uncontrolled manner whilst it was being replaced and thereby striking or crushing people;

(b) the defendant failed to ensure there was a safe system of work in place for the task of replacing the ripper tine on a D11R track-type tractor serial No 7PZ00429 ("the dozer") in that:

(i) it failed to prevent Nathan James Bowerman who was not trained in the task and not certified to use the lifting equipment required for the task to assist with the task;

(ii) it failed to prevent the work of replacing the ripper tine commencing until suitable lifting equipment was provided by WesTrac to undertake the task, in particular, a Franna crane or other lifting equipment, slings and shackles;

(iii) it failed to prevent the use of unsuitable lifting equipment for the task of replacing the ripper tine, in particular:

A. the chain used to lift the ripper tine was not fit for the task;

B. no shackle was attached to the synthetic sling and the lifting lug of the ripper tine;

C. a grab hook was used as a lifting hook instead of using shackles and other suitable lifting equipment.

(iv) it failed to ensure persons were not in the vicinity of the ripper tine whilst it was suspended;

(v) it failed to ensure a documented or verbal safe work procedure to address the risks of slinging and lifting the ripper tine, including the risks associated with using a lifting device provided by WesTrac;

(c) the defendant failed to ensure the task of replacing the ripper line was conducted by at least one person who held a certificate of competency in dogging work;

(d) the defendant failed to ensure that Stephen James Race received the site induction from Haslin before allowing him to undertake work at the site.

As a result of the defendant's failure Stephen James Race and Nathan James Bowerman who were not employees of the defendant who were working at the premises on 2 July 2009 were placed a risk of injury.

9 In relation to WesTrac the alleged breach under s 8(1) of the Act was framed as a failure by the corporation to ensure the health, safety and welfare at work of its employees and in particular, Stephen Race. The particulars of that amended charge were as follows:

(a) the risk was the risk of a ripper tine falling in an uncontrolled manner whilst it was being replaced and thereby striking or crushing people;

(b) the defendant failed to ensure that its employee, Stephen James Race, was provided with suitable lifting equipment for the task of replacing a ripper tine on a D11R track-type tractor serial No 7PZZ00439 ("the dozer") in the field, in particular he was not provided with slings and shackles;

(c) the defendant failed to ensure its employees, in particular Stephen Race, were provided with a safe system of work for the task of changing a ripper tine in the field, in particular:

(i) the system of work utilised did not ensure persons were not in the vicinity of the ripper tine whilst it was suspended;

(ii) the system of work utilised allowed equipment which was not suitable for the task to be used to lift and suspend the tine, including a damaged sling and a grab hook;

(iii) the defendant's documented safe work method procedure did not provide instruction for undertaking the task in the field, including instruction that persons were not to place themselves in the vicinity of the suspended ripper tine;

(iv) the defendant's documented safe work method procedure did not address site specific hazards for undertaking the task in the field, including the unavailability of suitable lifting equipment required for the task or the absence of a qualified dogman to conduct the task;

(v) the defendant's documented safe work method procedure did not address the risks of slinging and lifting the tine in the field, including the risks associated with using a lifting device such as a crane or telehandler;

(vi) the system of work utilised allowed the task to be performed without the assistance or guidance of a person who held a certificate of competency in dogging work.

(d) The defendant failed to provide its employees, in particular Stephen Race, with such training as was necessary to safely undertake the task of changing a ripper tine in the field, in particular the defendant did not provide Stephen Race with such training in:

(i) the selection of suitable lifting equipment required to safely undertake the task in the field;

(ii) the application of appropriate slinging techniques required to safely undertake the task in the field;

(iii) the method of inspecting and checking the condition of slinging gear required to safely undertake the task in the field.

(e) The defendant failed to provide its employees with such information as was necessary to safely undertake the task of changing a ripper tine in the field, in particular:

(i) the defendant did not provide its employees, in particular Stephen Race, with a documented or verbal safe work method for changing the tine in the field;

(ii) the defendant did not provide Stephen Race with the correct weight of the tine he was to lift and replace.

(f) The defendant failed to ensure the task of changing a ripper tine in the field was supervised by a person who held a certificate of competency in dogging work.

As a result of the defendant's failures, Stephen James Race who was an employee of the defendant who was working at the premises on 2 July 2009 was placed at risk of injury.

THE EVIDENCE

10 In relation to Hardy Bros, the prosecution's evidence comprised of an Agreed Statement of Facts and the following documents:

(a) a factual inspection report of Inspector Halcroft;

(b) 13 captioned photographs of the incident taken by Inspector Halcroft;

(c) a map depicting the aerial view of the site and its layout;

(d) three diagrams provided by Inspector Halcroft of the D 11R dozer;

(e) an expert report of Barry Haynes of B D Crane and Rigging Services;

(f) training documents relating to Nathan Bowerman;

(g) a Hardy Bros Mining and Constructions Pty Ltd document relating to the fitting of a new ripper tine to a D11 dozer;

(h) Hardy Bros Mining and Constructions Pty Ltd sub-contractor management documents, including sub-contractor assessment forms, sub-contractor information letter, and an example statement of competency;

(i) a prior convictions record for Mr Robert Hardy for Hardy Bros Mining and Constructions Pty Ltd certifying that neither defendant had a prior record.

11 In relation to the prosecution's evidence relating to Mr Hardy, apart from the certificates regarding prior convictions, all the evidence relating to Hardy Bros was tendered together with the following material:

(a) a company search relating to Hardy Bros and Mr Robert Hardy;

(b) A WesTrac work procedure - ripper shank remove and install";

(c) site safety management plan for Hardy Bros at the Eraring Energy Attemperating Reservoir construction;

(d) site induction records for Hardy Bros prior to 2 July 2009;

(e) qualification and training records of Stephen Race;

(f) copy of an improvement notice issued to Hardy Bros dated 3 July 2009;

(g) operational and functional inspection report by BT Equipment dated 17 July 2009;

(h) witness statement taken by Hardy Bros from Bill Hasthorpe dated 2 July 2011;

(i) COPS report Event No E37502937;

(j) toolbox talks and sign on sheets for Haslin Constructions and Hardy Bros dated 3 July 2009;

(k) site induction records for Haslin;

(l) non-conformance report raised by Haslin against Hardy Bros on 10 July 2009, including email from Chris Janetzki to Inspector Halcroft dated 19 August 2009;

(m) Hardy Bros lifting and towing loads standard;

(n) Hardy Bros operator log book;

(o) sub-contractor management documents, including sub-contractor list, training needs analysis and AS4901-1998 revised 22 July 2009;

(p) Hardy Bros company induction manual, including health and safety policy, rehabilitation policy, drug and alcohol policy, consultation policy, environmental policy, quality assurance policy, equal employment opportunity policy, privacy policy and organisational chart;

(q) Hardy Bros operation log book extract, sub-contractor assessment form and sub-contractor information letter;

(r) s 62 notices issued on 22 June 2010 and 5 July 2010 and letters from Hardy Bros dated 29 June 2010 and Middletons dated 12 July 2010;

(s) WorkCover Dogging guide 2003 - 6th edition.

12 In relation to WesTrac, the prosecutor's evidence included an Agreed Statement of Facts, the factual inspection report, 13 captioned photographs, the aerial view of the site, diagrams of the dozer prepared by Inspector Halcroft, an expert report from B D Crane and Rigging Service being documents also tendered in the Hardy Bros and Mr Hardy prosecutions. In addition, the prosecutor tendered: certificates of qualification of Stephen Race; a WesTrac work procedure "Ripper Shank - Remove and Install" document; improvement notice 7-209012 issued on 3 August 2010 by Inspector Halcroft and WesTrac documents, including safe work procedure "Ripper Shank Install and Remove in a Field Service Application using a pit or trench"; an email dated August 2010 and the attached Ripper Shank Remove and Install in a Field Service Application using a crane and appropriate lifting device; and, a prior convictions record certifying that WesTrac had no prior convictions.

The Statement of Agreed Facts in the Hardy Bros prosecution is attached as representative of the relevant matters.

13 The evidence for the defendants Hardy Bros and Mr Hardy was constituted substantially by an affidavit sworn by Mr Bradley Hardy. Mr Hardy was the general manager of Hardy Bros having been appointed to the position in February 2012. His responsibilities included the review and approval of the company's health safety environmental and quality management systems, as well as strategic planning for the company and reviewing and approving of upcoming projects for tendering purposes. At the date of the accident he was an employee of Hardy Bros, holding the position of projects manager for the Eraring Energy site. He had been employed in that role for approximately seven years but for different projects. Mr Hardy held certificates for dogging and C6 cranes as well as licenses to operate a backhoe and an excavator. He said he had 11 years' experience in the mining and construction industries and had attended line manager and supervisor safety courses that were completed in approximately 2005. He had attended various risk management seminars and had recently obtained partial completion in the open cut examiner's certificate. He stated that, in his position as projects manager at Eraring, he was responsible for the overall co-ordination of the works carried out by Hardy Bros, including production, safety and environmental quality compliance. Haslin Ltd was the principal contractor for the Eraring site.

14 The business on which Hardy Bros was founded commenced 75 years ago in Young. The business specialised in civil construction, earthmoving and mining operations and was described as a "family company" that had expanded over time to enable it to carry out substantial engineering projects. The company was involved in mining infrastructure and projects, sub-divisions, bulk water storage dams, road works and rehabilitation of disused and completed mines. The defendant company owned and leased a fleet of heavy machinery, including various types of dozers, scrapers, excavators, graders, loaders, rollers, water carts, backhoes, compactors, road registered dump trucks and other mobile plant. On the day of the accident the defendant company owned and operated a Manitou telehandler that was purchased in 2008. The telehandler did not have a jib attachment when purchased. Mr Hardy set out a complete list of the additional machinery owned and operated at the site.

15 At the time of the accident the defendant company leased a D11 dozer from WesTrac at this site. At the time the dozer was the only equipment leased by the defendant from WesTrac. The defendant also leased another D11 dozer and a 35 tonne excavator and two loaders from another company, a different company again leased to the defendant 4 articulated trucks, a 15 tonne excavator and one of the soil compactors used at the site. Haslin had engaged a 5 tonne excavator. Prior to the accident the leasing company for the other D11 dozer carried out repairs by sending a crane and two representatives when attention was required.

16 Mr Hardy dealt with the management structure of Hardy Bros. At the time of the accident there were two working directors, Mr Robert Hardy and Mr Danny Hardy. Both directors possessed over 40 years' experience in the earthmoving, construction and mining industry. The defendant, Mr Robert Hardy, is Mr Bradley Hardy's father. The company also employed his brother, Matthew Hardy. At the time of the accident, in addition to the two directors, the company had a comprehensive management structure; a company profile was provided as an attachment to the affidavit. At the Eraring site there was an engineering manager, a projects manager, an operations manager, a maintenance manager, a systems manager (including occupational health and safety systems) and a project engineer. They were all based at the project site. The defendant company further employed project engineers, leading hands, production supervisors, systems co-ordinators, float operators and surveyors for its various projects. Tradesmen such as fitters, boilermakers and labourers were employed as required at the different project sites. At the time of the accident the company had 47 full-time employees and 2 apprentices but did not have any part-time employees.

17 The training needs of employees were identified and monitored and the company had carried out a training needs analysis. The skills of its employees were said to be "broadly based." Supervisors were trained in Certificate IV Frontline Management and operators were trained in Certificate III qualifications in both surface coal mining and civil construction. Individuals were also allowed to select "elective" qualifications. The defendant company engaged several contractors at its sites. There was a list of preferred contractors that recognised companies that had previously worked for the defendant that had demonstrated compliance with the company's safety policies. On the day of the accident there were owner/operators of plant engaged by the defendant as contractors. The number of employees and contractors engaged by the defendant at the site ranged between 25 and 35 but at the date of the accident there were 25 employees and contractors at the site.

18 The defendant, Mr Hardy, attended the Eraring site on a regular basis to check on the progress of the work and how it was being carried out but he was not based at the site and did not make day-to-day decisions. Mr Bradley Hardy made the day-to-day decisions, together with the other managers working on the project. There were regular fortnightly management meetings held at the site and all managers, including the defendant, Robert Hardy, would attend. Minutes were kept.

19 Prior to the accident in July 2009, the defendant company had "comprehensive" occupational health and safety policies. Those documents were in evidence before the Court. The key health and safety document was entitled "Business Management Systems manual" and a copy was placed in evidence. In December 2008 the company was certified under AS4801: 2001 "Occupational Health and Safety Management Systems - Specifications with guidance for use." The defendant company had provided a safety management plan to Haslin dealing with the construction of the attemperating reservoir at the site. As part of its safety management the company required employees and contractors to be inducted at each site. As the principal contractor at the Eraring site, Haslin controlled all the site inductions. The defendant's systems manager assisted Haslin in the preparation and delivery of onsite inductions. Although the defendant had requested they conduct their own inductions for their employees and contractors, Haslin refused to allow this to occur. The defendant company was allowed to provide an induction to visitors to the Hardy Bros stand area and kept a visitor induction registrar at the site.

20 After the accident the defendant company had an induction manual in operation. That document identified different types of induction to be given prior to the commencement of work. Employees and contractors were trained in the manual and extracts of that document were placed before the Court. Prior to the accident the company had policies for operation of plant and training of operators. The operator log book was used to document the initial safety training provided to an operator of a piece of plant and to record the ongoing training provided to the operator. The logbook contained instructions for the different types of inspections to be conducted on the plant by the plant operator. The defendant kept a record of all maintenance and repairs carried out on plant operated by them. JSEAs were carried out for specific tasks. Pre-start meetings were held each day on the site and were attended by employees and contractors. Contractors were provided with a "subbies pack." Contractors were required to provide safe work method statements ("SWMS") for the defendant company to review and the work performed by contractors was checked and monitored.

21 In relation to training the defendant had engaged an independent training organisation for operators, including Mr Nathan Bowerman. There was an analysis of Mr Bowerman's training needs and that identified a requirement for him to be trained in correct lifting techniques with mechanical devices. A crane qualification and a dogging qualification were identified as being appropriate and training was provided by the external training organisation. At the time of the accident, although Mr Bowerman did not hold the necessary qualifications to operate the telehandler unsupervised by a competent operator, he had demonstrated in his training an aptitude for the operation of the plant and in dogging. Mr Bowerman ultimately obtained his dogging qualification at the end of July 2009.

22 On behalf of the directors, Mr Bradley Hardy expressed the company's "sincere regret and remorse" regarding the occurrence and circumstances of the accident. He spoke of being shaken by the accident and the injuries sustained by Mr Race stating that they would stay with him for the rest of his life. He constantly thought about how a series of poor decisions had so significantly altered another person's life. It was regrettable that such an accident had occurred and he had personally driven the company in a direction that would provide more adequate training and supervision of its employees and contractors on site to ensure that accidents like this one did not occur again. In that approach he was fully supported by both the directors, Mr Robert Hardy and Mr Danny Hardy.

23 A number of actions were taken after the accident and were set out in the Agreed Statement of Facts. The sub-contractor assessment form was developed and implemented to further improve the management of sub-contractors. A full audit was carried out on all sub-contractors engaged by Hardy Bros to identify any short falls in the documented systems and any deficiencies identified by the audit were corrected. An external consultant was engaged to conduct a company-wide risk assessment, including the revamping of the plant maintenance standard. The telehandler was replaced with a more recent model that had a jib that allowed for lifting and slinging of loads with a load chart provided in the cabin for the operator. A task analysis was carried out for the replacement of dozer tines and the SWMS developed for the fitting of a ripper tine to a D11 dozer. All apprentices had direct supervision while operating machinery. The defendant now conducted random audits on the job.

24 The defendant company spoke of supporting several community groups, not only in the company's hometown of Young but at various townships where the company was engaged in projects. Mr Bradley Hardy identified a number of recent corporate sponsorships and charity works. Mr Hardy was not required for cross-examination.

25 The defendant, Mr Robert Hardy, also prepared a short affidavit. He stated that he and his brother, Mr Danny Hardy, were directors and shareholders of the defendant company. He commenced employment with the defendant in approximately 1970 as an apprenticed diesel fitter and was qualified as a diesel fitter sometime in 1974. In approximately 1980, with his brother, Danny, he took over the everyday running of the business and in 1991 the two became shareholders in the defendant company. Currently, there were no other shareholders. Since that time the business had grown to the extent that it had expanded from rural farm constructions into civil and mining construction.

26 In early February 2012, his son, Bradley Hardy, was appointed general manager of the defendant company and took over the everyday running of the business. Since that time Mr Robert Hardy had reduced his responsibilities within the company and they had been transferred to the general manager and the operations manager (Mr Matthew Hardy).

27 As a working director, Mr Robert Hardy had taken and continued to take all necessary steps to ensure compliance with safety legislation. At the time of the accident a dedicated safety manager, Mr Matthew Galvin, was employed together with other managers holding appropriate qualifications and experience. Mr Robert Hardy received regular reports and took advice from the management team at the Eraring site regarding staff and resources required to safely carry out the defendant's operations. He participated in fortnightly meetings held by the management team and monitored the work progress. As a director he also ensured the company took its role seriously as a corporate citizen and the company supported several community groups not only in the family's home town of Young but in various townships where the company was engaged on projects.

28 Mr Robert Hardy expressed his sincere regret and remorse regarding the occurrence and circumstances of this accident. He said that it had not only deeply affected the life of Mr Race but also his own life and had affected the management team and the employees of the defendant company. For the rest of his life he would remember the injuries sustained by Mr Race and deeply regretted that an accident of this nature had occurred. In relation to his personal circumstances he said that, two years ago, he was treated for a heart condition and was currently receiving medical treatment for a related medical problem.

29 Personal references provided by Mr Bonnell and Mr Tiriana were attached to Mr Hardy's affidavit. Mr Bonnell was a solicitor and Mr Robert Hardy was a client whom he had known for a number of years both personally and professionally. Mr Bonnell believed that he had, by this association, come to know Mr Hardy well and spoke of him building up his business from humble beginnings to being a major mining construction firm. From his own experience he knew that Mr Hardy had achieved this as a result of hard work, integrity and attention to things that matter on a worksite, including safety. Although now conducting a major company employing a large staff, Mr Hardy was described as maintaining a down-to-earth manner, being extremely approachable and personable. He was "deeply caring" of the welfare of all those around him, including workers and sub-contractors. He had never heard a bad word said about Mr Hardy. From discussions he knew that Mr Hardy was greatly upset at the injury suffered in this accident and was keen to ensure that such an event did not occur again. Mr Hardy took his role seriously as an employer and paid close attention to proper corporate governance, disclosure of issues, compliance with regulatory laws and generally doing the right thing.

30 Mr Tiriana had know Mr Robert Hardy for a number of years, initially as a client but with time had become a close personal friend of Mr Hardy and his family. His view was that the company had been "very pro-active" in their focus to provide a better workplace, continuing improvements and investment in processes and personal development. These factors were said to be "standout commitments" that Mr Tiriana took into consideration before joining Mr Robert Hardy and his team. He undertook to assist Mr Hardy and the current management structure to implement changes required to continually improve the company. There was a genuine commitment and understanding of the importance of providing a safe and effective working environment displayed in Mr Hardy's personal and hands on approach in his management style. He spoke of Mr Hardy taking a serious and personal view of the current matter before the Court and the very serious impact on the workers involved and the cascading effect of the accident on his current staff and sub-contractors. Mr Hardy had used this as an opportunity to reinforce a clear and positive safety message across the entire company with a zero tolerance approach for non-compliance or unsafe activities.

31 A further affidavit was read concerning Mr Robert Hardy's inability to attend the sentencing hearing. Mr Dane Twohill, a solicitor engaged by the firm appearing for Mr Robert Hardy in these proceedings, stated that a week before the hearing he had been notified by Mr Bradley Hardy that Mr Robert Hardy had been suffering from an illness in the nature of a heart condition and that contact might be made with Mr Robert Hardy's wife. On that day, Mr Twohill spoke to Mrs Lynne Hardy who told him that her husband had undergone significant heart surgery in 2008 and they were concerned for his health as similar symptoms had returned and that he was frequently dizzy and light headed. The family were worried about the effects of the proceedings on Mr Hardy's health and he is currently being treated by his general practitioner and was to be referred to a cardiologist.

32 On 14 November 2012, Mr Twohill requested Mr Robert Hardy to attend his general practitioner to obtain a medical certificate in relation to his present condition and his fitness to attend Court on the allotted hearing date. Mr Twohill was subsequently notified that Mr Hardy's general practitioner did not have time to provide a medical certificate and despite Mr Twohill's efforts on the following day to have such a certificate provided, he was informed that the general practitioner had no time to do so. On 15 November 2012, Mr Hardy informed Mr Twohill that he was currently feeling frequently dizzy and light headed and did not feel healthy enough to attend Court four days later. Mr Hardy did say that if his condition improved over the weekend he would be able to attend the hearing.

33 The evidence for WesTrac was provided by Mr Darren Tasker the chief operating officer of the defendant in New South Wales and the ACT. Mr Tasker was a mechanical engineer who commenced employment with WesTrac in 1997 in the Western Australia office and then held successive management roles in the defendant's business before moving to New South Wales in 2003 when promoted to the role of general manager of construction for New South Wales. He was appointed chief operating officer in December 2008. In his current role he was responsible for all WesTrac's operations in New South Wales and the ACT. He was "the operational head" of this territory and in that position was actively involved and worked closely with operational management in the safety department in managing and ensuring that the defendant's safety processes were followed and that new processes were progressively implemented throughout the business. He reported to Mr Jim Walker the Chief Executive Officer of WesTrac and in turn Mr Walker reported to the Board of Directors. A number of general managers reported directly to Mr Tasker and also reported to him on the safety performance of their departments and any specific safety or hazard concerns.

34 Previously, Mr Tasker had been employed by Gough and Gilmour, the dealer in New South Wales authorised to sell heavy machinery manufactured by Caterpillar Inc prior to WesTrac taking over that dealership territory in late 2003. This gave Mr Tasker over 22 years' experience with Caterpillar dealers, equipment and heavy equipment management.

35 WesTrac was the authorised distributor in Western Australia, New South Wales, the ACT and north east China handling a broad product line of heavy equipment manufactured by Caterpillar. Mr Tasker described the core business as involving the supply and rental of Caterpillar heavy equipment, parts and components to a number of industries, including building and construction, forestry, local Government, marine, mining, highway trucks and quarry/aggregates. The company also provided customers with extensive after-sales maintenance repair and equipment management services.

36 Mr Tasker described the company structure and branch operations and it was noted that the defendant had 27 branch offices in Australia. At the time of giving evidence, the defendant company employed approximately 3900 persons with approximately 1500 of those people based in New South Wales and the ACT.

37 At the time of the accident the defendant employed approximately 2500 people in total and approximately 1000 of them were employed in New South Wales and the ACT. The company was a registered training organisation and its apprentice programme was described as being one of the largest in Australia. The company was currently training more than 500 of its own apprentices and in addition had over 100 customer apprentices enrolled in its training institute. There were a number of long-term employees who had commenced employment with the defendant as apprentices and remained employed for their entire career. In Mr Tasker's experience that was unusual in this industry.

38 Mr Tasker expressed the view that the defendant's ability to retain employees was assisted by its commitment to the health and wellbeing of its people. Apart from its safety policies and procedures, the defendant company had a "Wellness" Committee consisting of employees across all levels of the business and operating with a rotating chair. The committee discussed, in an open forum, all issues regarding the defendant's employees and their families' wellness. The defendant had an extensive occupational health and safety policy and had established a vision and core values document emphasising ethics and integrity, excellence and equity. Safety performance was reported monthly to all levels of management and the Board and a safety management plan, revised as at March 2012, set out the methodology for providing a safe working environment. That plan was "aligned" with the principles of AS4801 regarding occupational health and safety management systems.

39 Prior to the accident involving Mr Race, the same safety management plan was in operation with the objective of all the defendant's sites achieving a "five-star safety rating." Mr Tasker gave details of the various aspects of the safety management plan, including training, induction, accessibility to safety information, safety audits and procedures. The induction involved face-to-face training in the company's safety system and there was also a specific business induction conducted by a supervisor and tailored to the employees' role. Re-induction was mandatory every two years of employment and site access was removed when the induction was overdue. Safety committees, hazard reports, area meetings, pre-start meetings, safe act observations, alerts. inspections and safe work procedures were all used as part of the system of communication and consultation. Explanations were given of hazard identification and risk assessment as well as auditing of the safety processes by way of internal audits, the five-star safety audit process and monthly workplace inspections.

40 Mr Tasker explained the many ways in which the defendant demonstrated commitment to safety in the period prior to the accident. The safety management plan was constantly evolving to meet new standards and to reflect best industry practice. In approximately 2005 the defendant introduced a "Road to Zero Harm" initiative where no injury was acceptable to the defendant. The focus on this initiative was to undertake continuous improvements to reduce and ultimately eliminate all injuries in the workplace. These goals were sought to be achieved through a variety of approaches, including "Take 5" so that prior to every job an assessment of all the risks was taken as well as the controls that were required to be put into operation. JSEAs and SWPs were part of this approach. Explanations were also provided of the vast safety audit process and the adoption of the Caterpillar production system that introduced standard work practices taking into account the safest possible method of completing a task. This resulted in the defendant introducing an even larger library of safe work procedures and they were made available to employees in various ways, including via laptops carried with them in their work vehicles.

41 After the accident the defendant company recognised that there were improvements to be made in its safety management plan and in particular in relation to risk assessments and SWPs. While there was an SWP for changing a ripper tine it was accepted that it did not contain a procedure for performing the task in the field. After the accident the SWP was revised with this task to be performed only in the workshop environment and not in the field. The defendant received an improvement notice from WorkCover and the SWP was revised and significantly improved. Technicians undertaking the task where now to have a dogging qualification. All relevant field staff were trained in the new SWP and it had since been further reviewed. There were now clearer instructions involving the steps, equipment and training required for the task. It also appeared to the defendant that its existing Take 5 and other risk assessment processes had not been undertaken prior to commencement of work and therefore the defendant reinforced those existing policies. A risk assessment that could not adequately meet the situation through Take 5 required a JSA to be prepared that acted as a task specific SWP. Where a risk could not be adequately controlled, staff were instructed not to complete the task.

42 More generally, Mr Tasker discussed the role of supervisors and managers in relation to safety and the active encouragement of the workforce to identify and report hazards through the online hazard and incident reporting system. The defendant had increased its dedicated safety resources and since the accident the safety team had grown in both number and expertise. The group now consisted of 27 staff nationally and was responsible for implementing safety initiatives, auditing compliance with the defendant's 5 Star safety audit system, developing corrective actions as required, reviewing and improving the safety system and project managing health and safety initiatives. There were now six advisers and a State manager based in New South Wales. The defendant's already sizeable budget for safety and training had been increased with $18 to $22 million being spent annually on safety. WesTrac employed qualified trainers to conduct internal training on technical and safety aspects and external trainers were engaged where there was no qualified in-house trainer. In the previous year the defendant had invested approximately $6 million in training and a significant proportion of that amount had been spent on safety related training. The defendant was said to have a good working relationship with Government authorities and had provided training to the Fire and Emergency Service of Western Australia and the WorkCover Authority of New South Wales regarding the safe use of Caterpillar equipment. The 5 Star audit system had been continually improved. External consultants were used to assess the defendant's safety management system and safety culture.

43 Mr Tasker examined the training and qualifications held by Mr Race. Mr Race had commenced employment with the defendant in 2004 as a workshop-based plant mechanic and in 2007 moved to the field service team. In 2009 he was promoted to plant mechanic field service, a role that involved Mr Race predominantly working on repairs to the defendant's rental fleet and that included performing repairs at customer sites. After the accident and on his return to work, Mr Race continued to work for the defendant as a rental maintenance co-ordinator. He remained a respected employee and was also considered to be a safe and competent employee with over 12 years' experience with heavy machinery. Mr Tasker spoke about Mr Race's participation in the defendant's induction workplace orientation and plant familiarisation process and being trained in the 5 Star safety audit system. Prior to the accident Mr Race had successfully completed a number of safety related courses, including a course dealing with slinging and lifting (a course that did not, however, qualify him as a dogman). There were a number of competency training modules that Mr Race had completed. He was provided with a company vehicle and basic tools. Vehicles generally were equipped with chains and lifting devices as was Mr Race's vehicle. It was usual practice for the customer to provide all other equipment, for example, cranes, as they would be available on site. Normally, the customer only required the field service mechanic to conduct the actual repair.

44 In relation to the injuries suffered by Mr Race, Mr Tasker said he was made aware of them within hours of the accident. He had become actively involved in all aspects of its aftermath, including all areas of the defendant's response to the incident and close personal involvement with Mr Race during his recovery, return to work and future career planning. The defendant provided support for Mr Race, his family and also his workmates. Professional counselling services were immediately made available for everyone involved in the accident and others who required it. Arrangements were made to ensure that Mr Race and his family were provided with all necessary assistance. Mr Tasker visited Mr Race in hospital and also visited his parents when Mr Race was discharged from hospital. A number of other people from the defendant company also visited Mr Race and his family.

45 A number of other arrangements were made by the defendant to address Mr Race's needs. His wife was provided with accommodation in Westmead so she could be close to her husband while at Westmead Private Hospital. Arrangements were made for a single private room to be made available to him and Mr Race's home was assessed by two separate occupational therapists, a home modification builder and an architect to determine the modifications required upon his return home. Because of the steep incline on which the home was built, plans were required to be architecturally drawn and submissions made to Council before modifications could be made. The defendant worked closely with the workers compensation insurer to ensure that those modifications were completed. Financial assistance was provided by way of paying incidental costs such as taxis, chemists and medical bills and for Mr and Mrs Race to receive treatment from a psychologist. Hire car services were made available to transport Mr Race and his wife to appointments and social occasions until Mr Race was able to drive a car.

46 A number of other steps were taken to relieve Mr Race and his family of the usual burdens associated with workers compensation claims, hospital admission and rehabilitation and the defendant negotiated with its insurer to continue to pay makeup pay without Mr Race being required to tender his payslips. The defendant continued to pay Mr Race's at his pre-injury level (beyond statutory insurance payments) and there was regular contact during Mr Race's convalescence and rehabilitation. Home maintenance including mowing and gardening were provided and a builder was engaged by the defendant to remove any blockages on the paving at Mr Race's home. Arrangements were made and paid for to allow Mr Race to attend medical appointments, including exercise therapy. Assistance was also arranged through the provision of a corporate credit card and the defendant purchasing a leg weight that the insurer had refused to cover regarding a particular prosthetic leg that Mr Race wished to use.

47 When Mr Race was ready to return to work the defendant arranged for a laptop and internet connection at his home thus allowing him to initially work one to two hours per day for approximately two days per week. This work was assisting the field service co-ordinators. Mr Race then later asked for work to be made available from the defendant's office for two hours per day, two days per work. An employee of the defendant company drove him to and from work at his local branch. Mr Race continued to work on an ad hoc basis for approximately 12 months before returning to full-time employment. As part of his rehabilitation programme, he was retrained and appointed maintenance co-ordinator for rental equipment in New South Wales. This was a position created for Mr Race and allowed him to retain the same salary he had received as field service mechanic. Mr Race had attended the defendant's skills supervisor programme dealing with the management of people and getting the work done in an efficient and effective manner. This first level training for supervisors and managers enabled them to move from the workshop programme into the internal operations of the defendant's business. Over the past two years Mr Tasker had met Mr Race approximately four times to discuss his career development and he remained personally involved in keeping Mr Race's career on track. The defendant would continue to work and support Mr Race and his family and ensure that any assistance or medical needs were maintained, approved and received in a timely manner.

48 In relation to the accident, the defendant company had fully co-operated and assisted with WorkCover's investigation. The defendant required all its employees to make themselves available and paid for them to be available to WorkCover. All documents required by WorkCover were provided in a timely manner.

49 Mr Tasker stated that the Board of Directors, management and employees of the defendant were deeply shocked and disturbed by this accident. He was authorised by the Board of Directors to express the company's sincere remorse that the incident occurred and that Mr Race was injured and also that the defendant had breached the Act. Although the defendant had always tried and continued to have a genuine commitment to safety, an injury of any description was absolutely unacceptable. Here, the nature of the injury to such a well respected and competent employee was especially hard to comprehend. The company was deeply saddened at the impact the accident had on Mr Race and his family. The accident re-enforced to Mr Tasker and the defendant the need to be ever vigilant and pro-active with safety in the workplace.

50 The defendant had supported a number of local community and social clubs in Western Australia, New South Wales and the ACT. Donations and other support was made available to charity organisations within the communities where the defendant had a branch and where its employees and their families were involved. The defendant had a policy of not engaging with sponsorships associated with alcohol and would only enter partnerships with organisations that shared the defendant's values of community and social responsibility. Mr Tasker was able to give details of a number of areas where the defendant had provided such support.

DELIBERATION

51 In addressing the objective seriousness of the offence in each case, the prosecutor drew attention to the life-changing injuries suffered by Mr Race as indicative of the seriousness of the risk of injury arising from the flawed system of work in operation on the day of the accident. In taking that approach the prosecutor readily conceded that the focus of the Court in carrying out this sentencing exercise is to assess the nature of the risk rather than concentrating upon a particular accident or injury: nevertheless, having regard to the nature of the work being performed in the field, there was an obvious and foreseeable risk of very serious injury arising from the work method adopted. Attention was drawn to the numerous factors that demonstrated the serious flaws in that work system. WestTrac had sent Mr Race to the site to change the tine on a very large piece of mining equipment and because the normal vehicle with its usual tools and equipment was not available he was provided with another vehicle that lacked the necessary equipment, including lifting equipment, required for this obviously dangerous task. While WesTrac had a well-developed safety system generally, there was no system developed for changing a heavy piece of equipment such as a tine in the field. Mr Race therefore attended this site to perform work without the assistance of such a developed safe work method and did so in circumstances where he was directed by his supervisor to bypass the otherwise mandatory requirement of the head contractor, Haslin, that all persons attending the site must participate in an induction.

52 These deficiencies were compounded by the fact that neither Mr Race nor Mr Bowerman held a certificate of competency for slinging and lifting loads. Hardy Bros maintenance supervisor, Mr Dean, allowed this lifting operation to take place in the circumstances outlined above and using a telehandler that did not have a jib and utilising lifting equipment and chains that were ill matched and retrieved from a Hardy Bros work shed. In the performance of this task, to use the words of Mr Bradley Hardy, there were a series of poor decisions made by otherwise well-trained and competent persons that had a devastating and life-changing effect on Mr Race. On any analysis each offence represents a serious breach of the Act.

53 It was accepted by the Hardy Bros defendants that, despite its supervisory structure and training, on this occasions Mr Dean did not fulfill his role as a supervisor. He permitted Mr Bowerman to operate the telehandler to remove the tine from Mr Race's vehicle and was aware that Mr Bowerman did not have the necessary qualifications to operate the telehandler or sling loads without supervision. Mr Dean did not stop Mr Bowerman assisting in the retrieval of lifting equipment from the Hardy's store and in fact left the area to attend another job without arranging for some further supervision to be provided in circumstances that must have suggested the dangers of changing the tine in the manner proposed.

54 In considering the seriousness of the breach, senior counsel for WesTrac submitted that the variety of particulars to which it had pleaded should not disguise the fact that there was a significant overlap in the nature of those particulars and the seriousness of the breach also had to be considered in the context of the evidence demonstrating WesTrac's significant investment in safety in the operation of its business and well developed safety practices. Essentially, this accident demonstrated a gap in that system concerning the laying down of appropriate safe work practices for undertaking repairs in the field. Those matters may be accepted.

55 Counsel for the Hardy Bros interests argued that the nature of the offences had to be considered in the context in which they occurred. In relation to Mr Bowerman, while he was not fully qualified and required supervision, the defendants had a sound supervisory structure. In relation to this work that level of supervision was intended to be provided by Mr Dean, the maintenance manager, a position that was considered to be a senior role within the company. Mr Dean was responsible for supervising Mr Bowerman at the time of the accident. Mr Dean had arranged for WesTrac to attend to replace the ripper tine and was present when Mr Race attended the site and discussed with him how the tine was to be lifted. Mr Dean informed Mr Race that lifting tasks (but not the replacement of a ripper tine) were normally done by using the telehandler with pallet forks. Mr Dean informed Mr Race that no jib was available for the telehandler.

56 Mr Dean permitted Mr Bowerman to assist by operating the telehandler in removing the tine from Mr Race's vehicle and was aware that Mr Bowerman did not have the necessary qualifications to operate the telehandler or sling loads without supervision. In these various ways it was submitted that Mr Dean did not fulfill his role as a supervisor. After the various chains and slings were sourced from Hardy Bros, Mr Dean observed Mr Race and Mr Bowerman using the equipment to remove the ripper tine but Mr Dean did not prohibit Mr Bowerman from assisting in this task. Mr Dean then left the area asking Mr Bowerman and Mr Race if they needed assistance but he did not take any steps to provide any further supervision. Mr Dean had not informed anyone within the defendant of these actions. It was submitted that these failures by Mr Dean could not have been foreseen by the defendants or reasonably contemplated by the defendant company. There was nothing about Mr Dean's previous work performance that would indicate that he would take this approach. Further, the defendants had previously used another company for maintenance tasks on its earthmoving equipment where a crane and two employees had been provided: it was suggested that it was reasonable for the defendants to expect a similar level of support when WesTrac was engaged to perform a similar task.

57 It is difficult to accept the full force of this submission on behalf of the Hardy Bros defendants. The obligation on the defendants was to be diligent, not only in promulgating safe systems of work but ensuring that those safety systems were complied with in the performance of the work. That responsibility does not result in a requirement for an endless line of supervisors to be present but it does require systems to be adopted that identify circumstances where the safety rules laid down by the company are not being followed. Random safety audits is one such method. It is of some significance for this submission that the corporate defendant provided no evidence of steps taken to specifically bring home to Mr Dean the variety of poor decisions that had been made in his role as a maintenance supervisor on this day, or any warning being issued in relation to the continuation of such supervisory deficiencies. Further, Mr Dean had not been directed to require WesTrac to supply a crane for this field service task.

58 Counsel for the prosecutor further submitted that the culpability of WesTrac should be assessed towards the upper end of the scale in relation to its relative contribution to the risk exposed by this incident. This approach was said to be warranted by the fact that it had direct involvement in the particular task undertaken on the site. Under the arrangements for the supply of the D11 dozer, WesTrac also undertook to service the earthmoving equipment as required and thus assumed a primary responsibility for ensuring that any maintenance task was carried out safely and without harm to any of its employees. WesTrac's conduct, however, had contributed significantly to the relevant risk.

59 It was submitted that Hardy Bros' role as a sub-contractor required the company to take responsibility for ensuring that proper safety standards were implemented and maintained at the site. Part of that responsibility included direct responsibility for checking the qualifications and competencies of other sub-contractors at the site. In performing that role, Hardy Bros failed to take appropriate steps to address the foreseeable risk to which Mr Race and Mr Bowerman were exposed. At the time of the accident Mr Robert Hardy was the most senior person with authority working at the site for the corporate defendant. It was submitted that, in this way, the conduct of Hardy Bros and Mr Hardy materially contributed to the relevant risk. These defendants had regular operational involvement in the activities undertaken at the site. The risk was readily foreseeable. Having regard to these matters it was submitted that Hardy Bros and Mr Hardy's degree of culpability should be assessed towards the middle of the scale of relative contribution to the risk given that these defendants did not have primary responsibility for the task of replacing the ripper tine in the field.

60 Senior counsel for WesTrac did not challenge these submissions as to relative culpability and foreseeability. Counsel for the Hardy interests accepted the prosecutor's submission as to the primary responsibility and primary culpability resting with WesTrac but queried whether the risk was as clearly foreseeable as suggested by the prosecutor. It was accepted that the risk of a ripper tine falling in an uncontrolled manner while being replaced was foreseeable but the circumstances in which that occurred on the day in question were said to be "considerably less foreseeable by Hardy Bros." It was submitted that the telehandler had not been purchased to perform this type of work as indicated by the absence of a jib. Reliance was then placed on the various WesTrac failures as already identified and the failure of the defendants' Mr Dean to properly undertake his supervisory role. That submission, however, for the Hardy Bros defendants cannot be accepted. From the time that Mr Race appeared without his normal equipment it had to be plain to anyone performing this type of work that the cobbling together of bits and pieces of equipment from the site was fraught with difficulty and risk.

61 In relation to all defendants, the Court concludes that the breach is serious. The Court accepts the submission for the prosecutor that WesTrac's culpability is greater than that of the Hard Bros defendants.

62 All defendants accepted that general deterrence should play a significant role in the setting of an appropriate penalty. For WesTrac it was argued that, in light of its extensive operations and the significant number of persons employed and having regard to its extensive existing safety procedures and the steps taken to address the gap in that system following this accident resulted in there being little or no role for specific deterrence in setting a penalty. The reality is that, despite the matters raised on behalf of WesTrac, it continues to be a very large operator in this field with its inherent dangers. It is to be noted that, despite its extensive safety programmes, there remained a significant gap in the company's safety processes relating to repairs in the field. The need for WesTrac to be encouraged to be diligent in examining and re-examining its safety processes for their relevance and appropriateness to the work at hand means that specific deterrence shall play a role but a reduced role in the setting of the penalty. The Hardy Bros' interests accepted that both general and specific deterrence were usual and significant elements of an appropriate penalty but in relation to specific deterrence, pointed to the numerous steps taken following the accident to address the risk that was exposed. It is also appropriate to note that the Hardy Bros' interests had in operation an extensive safety system prior to the accident. Having regard to those considerations, while specific deterrence will have a role to play in the setting of a penalty, it will also be a reduced role in relation to these defendants.

63 A further issue was raised in relation to Mr Robert Hardy with counsel arguing that Mr Hardy's level of culpability was less than that of the Hardy corporate defendant. It was pointed out that, at the time of the accident, Mr Robert Hardy was a working director of the company and managing director and was engaged as a production supervisor for the Eraring site, responsible for the overall co-ordination of the works carried out by the defendant company, including safety compliance. It was submitted that the day-to-day decisions were not taken by Mr Robert Hardy but were taken by Mr Bradley Hardy. The submissions pointed out that, as a director, Mr Robert Hardy had ensured that appropriate equipment and plant had been used at the site and that numerous steps had been taken to ensure safe working practices at the site and they had been taken under Mr Hardy's direction. It was further submitted that it was surprising that no director of WesTrac had been proceeded against and that fact had led to Mr Robert Hardy having a justifiable sense of grievance resulting, apparently, in a reduction in penalty.

64 In response to these submissions counsel for the prosecutor submitted that Mr Robert Hardy could not have any justifiable sense of grievance arising from the lack of prosecutions against the directors of WesTrac. It was pointed out that Mr Hardy had exercised a different level of control in that he had direct and regular operational involvement in the activities performed by the corporate defendant at the Eraring site. Mr Robert Hardy attended the monthly management meetings at the site. This level of control was further evidenced by the fact that Mr Robert Hardy also held the position of managing director and so was instrumental in ensuring that there were proper sub-contractor management systems in place as he had control of the site where the work was performed. There was nothing to suggest that directors of WesTrac had this level of responsibility within the corporation and also had hands-on managerial and operational responsibility at the site such as was exercised by Mr Robert Hardy. The Court concludes this is not a case where there is evidence of a level of involvement of other entities such as would call into operation the principle discussed by the Full Bench of the Commission in Court Session in Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312.

65 In relation to subjective considerations, there was some debate as to the timing of the pleas entered by the various defendants. All prosecutions were commenced on 3 June 2011. In the case of WesTrac the matter was mentioned on three occasions and on the fourth occasion, 20 December 2011, a plea of guilty was entered to an Amended Application for Order. When the matter came before the Court in February 2012 it was stood over generally until Mr Hardy's matter was concluded. In the Hardy Bros Mining and Constructions Pty Ltd matter, on the second occasion it was listed before the Registrar the parties sought an adjournment in order to finalise particulars prior to entering a plea. There was a further mention and then on the fourth occasion before the Registrar a plea of guilty was entered to an Amended Application for Order. On 8 February 2012 the matter was stood over generally until the matter of Mr Robert Hardy had been finalised. Mr Hardy's matter was listed before the Registrar on three occasions and on the fourth occasion, being late December 2011, a plea of not guilty was entered to an Amended Application for Order. On 8 February 2012 the Court listed the matter for hearing for a period of five days commencing on 12 June 2012. The case proceeded on the first day when the evidence of Inspector Halcroft and Mr Race was taken. At the commencement of the proceedings on the second day it was announced that the parties were in discussions and after a short adjournment, the prosecution filed a further Amended Application for Order. In response to the further Amended Application for Order counsel for Mr Hardy immediately entered a plea of guilty.

66 Having regard to these mattes, the prosecutor submitted that the guilty pleas entered by WesTrac and Hardy Bros were entered at a "relatively early stage" of the proceedings. Taking into account these matters the prosecutor submitted that a discount in the vicinity of 20 per cent was warranted in relation to the WesTrac and Hardy Bros matters but that a discount of 15 per cent was justified in relation to Mr Hardy given that his plea was not entered at the earliest opportunity but was entered during the course of the trial when a further Amended Application for Order was filed.

67 It is clear that the discounts made available for pleas of guilty and the additional consideration to be given to early pleas results from a policy to encourage the early determination of prosecutions. In relation to both WesTrac and Hardy Bros, the few occasions that those matters were before the Registrar prior to entering a plea of guilty were totally understandable and in the Hardy Bros' case was initially caused by the need for further particulars before it was appropriate to enter a plea. On the fourth occasion, when Amended Applications for Order were filed, a plea of guilty was entered. In view of that brief history those pleas entered by the corporate defendants should be regarded as early pleas and therefore warrant the granting of a discount of 25 per cent on the final penalty to be imposed.

68 In relation to Mr Hardy, the debate centered upon whether the amendments made in the further Amended Application for Order rose above the description "minor" as argued by the prosecutor or amounted to "substantial" amendments as argued by the defendant. It was a feature of all these cases that Amended Applications for Order were required and it is significant that a further amendment in Mr Hardy's case resulted in the entering of a guilty plea after the first hearing day and saving the costs of a further four hearing days and a separate possible hearing on penalty. Counsel for Mr Hardy examined the nature of the amendments made that led to the guilty plea and the Court is satisfied that those amendments were of sufficient importance to influence a change in plea. That course resulted in four additional hearing days becoming unnecessary with the undoubted saving of associated costs. In those circumstances, Mr Hardy should receive a discount of 20 per cent on the final penalty to be imposed.

69 In all cases there are a number of subjective factors to be considered. All defendants are first offenders and are entitled to the leniency attached to that status. In different ways they have participated in a heavy industry with its inherent dangers. While WesTrac has been a very large employer, Hardy Bros has been a significant employer: in both cases their previously clear record is unlikely to have occurred as a matter of chance and is more likely to have been the result of ongoing attention to safety over a considerable period of time. Their extensive safety systems have been subject to audit and review and when this accident occurred, exposing a gap in their safety systems, the defendants took action to comprehensively address the risks of making repairs in the field to heavy machinery. All defendants co-operated with the WorkCover investigation and that is a matter of some significance. The defendants provided evidence demonstrating their good industrial and community citizenship and they have been active in supporting communities related to their various activities. Similarly, all defendants have demonstrated their contrition and remorse in regard to the role they played leading to the very serious injuries received by Mr Race. The evidence demonstrates that they have taken responsibility, in different ways, for their acts and omissions in relation to by this accident. In particular, WesTrac has provided not only financial but support at many levels for Mr Race from the time of his hospitalisation through his rehabilitation and in securing a career for him within the company structure. All of these matters will be taken into account in mitigation of the penalty to be imposed.

70 One further matter was raised regarding Mr Robert Hardy. An application was made pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 that the Court order either that the charge be dismissed or, in the alternative, that Mr Hardy be discharged on condition that he enter into a good behaviour bond for a term not exceeding two years. The provisions of s 10 require the Court to have regard to a number of factors: the person's character, antecedents, age, health and mental condition; the trivial nature of the offence; the extenuating circumstances in which the offence was committed; and, any other matter that the Court thinks proper to consider.

71 It was not suggested on behalf of Mr Hardy that the offence was trivial and in terms no submission was made that there were extenuating circumstances surrounding the offence. Attention was drawn to the fact that the Hardy Bros' interests were not alone in their culpability in relation to the risks that led to this accident and the serious injuries sustained by Mr Race. These were circumstances in which, by the nature of the operation, WesTrac properly bore the major responsibility for the repair exercise and the way in which it was to be conducted. That situation, however, regularly occurs in industry where contractors are required to work together in situations that are inherently dangerous. Emphasis was placed upon the personal references attesting to Mr Hardy's good character, his prior clear safety record and the systems of safety that were in operation while he was a director and managing director of Hardy Bros. It was pointed out that Mr Hardy was 57 years old and had now handed over the day-to-day management of the company to Mr Bradley Hardy and that Mr Robert Hardy intended to retire in February 2014, subject to his health. Mr Hardy had ongoing health problems and had treatment for a previous heart condition and was currently experiencing symptoms relating to that condition. There was no medical evidence, however, linking any symptoms either to these proceedings, the consequence of these proceedings or how the resolution of these proceedings would impact upon Mr Hardy's ongoing health.

72 In response to this application counsel for the prosecutor again noted Mr Hardy's direct level of involvement in his position as a working director, managing director and on-site production supervisor attending the site on a regular basis. In these positions Mr Hardy had overall responsibility for safety compliance. He regularly attended the site although not based at the site. He checked work being carried out but did not make day-to-day decisions, those decisions being made by Mr Bradley Hardy.

73 It was further submitted that it was not difficult to identify the effective steps that could have prevented the risks occurring as they did in this case. This was demonstrated by the system adopted by the defendants following the accident. Their failures were to check three things prior to the commencement of work: firstly, the failure to check the qualifications of the sub-contractor; secondly, the failure to check its procedures; thirdly, the failure to check the equipment to be used by the sub-contractor. It was submitted that, having regard to the nature of the work, the corporate defendant, Hardy Bros, was really "the last line of defence." That is, it was incumbent upon Hardy Bros to ensure that if any of the failures committed by WesTrac were detected then Hardy Bros was required to act to ensure that the risks were addressed and prevented from causing injury. Mr Hardy stood at the apex of the Hardy Bros structure.

74 There is considerable force in these submissions for the prosecutor. This is not a case of the same nature as dealt with in the Court's decision in Inspector McGrath v Edmen Recruitment Pty Ltd [2012] NSWIRComm 108. In that case the specialist medical evidence was decisive and unchallenged. Having regard to all the circumstances this is not a case where the Court should exercise its discretion under s 10 of the Sentencing Procedure Act.

ORDERS

75 The Court makes the following orders:

In relation to WesTrac Pty Ltd:

(a) the defendant, WestTrac Pty Ltd, is found guilty of a breach of

s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter IRC 803 of 2011 to which it entered a plea of guilty;

(b) the defendant is fined the sum of $150,000 with half that sum to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

In relation to Hardy Bros Mining and Constructions Pty Ltd:

(a) the defendant, Hardy Bros Mining and Constructions Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter IRC 802 of 2011 to which it entered a plea of guilty;

(b) the defendant is fined the sum of $105,000 with half that sum to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

In relation to Robert Leslie Hardy:

(a) the defendant, Robert Leslie Hardy, is found guilty of a breach of

s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26 as particularised in the further Amended Application for Order in Matter IRC 804 of 2011 to which he entered a plea of guilty;

(b) the defendant is fined the sum of $11,250 with half that sum to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

ANNEXURE

AGREED STATEMENT OF FACTS

1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in these matters.

2. At all material times WesTrac Pty Ltd was a corporation whose registered office is situated at 128 Great Eastern Highway, South Guildford in the State of Western Australia.

3. At all material times Hardy Bros Mining & Constructions Pty Ltd) was a corporation whose registered office is situated at RSM Bird Cameron, 55 Berry Street, Wagga Wagga in the State of New South Wales.

4. At all material times Robert Leslie Hardy Wales was a director of Hardy Bros Mining & Constructions Pty Ltd.

Background

5. At all material times Eraring Energy owned a power station at Eraring, on Rocky Point Road, Eraring in the State of New South Wales ("the site"). Eraring Energy appointed Haslin Constructions Pty Ltd ("Haslin") as the principal contractor to construct an attemperating (cooling water storage) reservoir at the site.

6. At all material times Hardy Bros Mining & Constructions Pty Ltd ("Hardy Bros") conducted its business at premises located at Lot No. 1289, Spring Creek Road, Young, in the State of New South Wales and was an employer. Hardy Bros was a corporation which undertook the business of earth moving, mining and civil construction. Hardy Bros was incorporated on 19 February 2004.

7. Haslin contracted Hardy Bros to work at the site. The scope of works included clearing trees, stripping topsoil, excavating, removing and importing soil, fill and clay, importing and placement of aggregates and excavation, and installation of drainage lines. Hardy Bros commenced work at the site in July 2008.

8. At all material times Robert Leslie Hardy ("Mr Hardy") of 248 Kilaben Road, Kilaben in the State of New South Wales was a Director of Hardy Bros. Mr Hardy attended the site on numerous occasions as a production supervisor.

9. Mr Dennis John Dean ("Mr Dean") was employed by Hardy Bros since July 2008 and as a maintenance supervisor since May 2009. Mr Dean was responsible for supervision of works in the 'hardstand' area at the site.

10. Mr Nathan Bowerman ("Mr Bowerman") was a 19 year old employed by Australian Group Training NSW since March 2008, and hosted by Hardy Bros, as a second year apprentice mechanic.

11. Mr William Hasthorpe ("Mr Hasthorpe") was employed by Hardy Bros as a plant operator and had been working for Hardy Bros for approximately three months.

12. Hardy Bros owned a Manitou telehandler serial No. 130694 ("the telehandler") and it was used at the site. The telehandler is a form of mobile crane that can travel on uneven ground. It is similar in appearance and function to a forklift; however it has a single telescopic boom that can extend upward and forward from the vehicle to which different attachments can be fitted. The telehandler had pallet forks attached to the boom. There was no jib attachment available for the telehandler for use at the site.

13. At all material times WesTrac Pty Ltd ("WesTrac") conducted its business at premises located at 128 Great Eastern Highway, South Guildford in Western Australia and was an employer. WesTrac was a corporation that, amongst other things, rented Caterpillar heavy machinery to the construction and mining industry. It was the authorised dealer for Caterpillar in New South Wales. WesTrac provided field service for rented equipment, although servicing and minor maintenance was often undertaken by the lessee.

14. On or about 12 May 2009, WesTrac rented a D11 heavy track-type tractor to Hardy Bros for use at the site on a 'dry hire' basis, that is, without an operator. The rental agreement was dated 7 May 2009 and set out the terms and conditions of the hiring of the D11 dozer and the responsibilities of the hirer and WesTrac. The D11 dozer was the only machine being rented from WesTrac on site by Hardy Bros.

15. The D11R track-type tractor serial No. 7PZ00439 ("the dozer") had a dozer blade at the front, and a hydraulically controlled ripper at the rear, used to break up rock and earth. The ripper tine is secured into the ripper box by a locating pin through the top of the shank. There is a 'boot' on the end of the tine which is able to be replaced. Normally just the boot is replaced and this occurs frequently. Although the ripper tine is subject to high levels of wear during normal use, it is replaced on average every 12 months.

16. Stephen James Race ("Mr Race") was employed as a field service plant mechanic by WesTrac, and had been working for WesTrac since 2004 in that role.

17. Ross Newman ("Mr Newman") was employed by WesTrac as the Rental Maintenance Coordinator. Mr Newman was Mr Race's supervisor for this task.

Incident

18. The site was approximately 17 hectares, with the reservoir being approximately 13 hectares. The site was fenced with secure fencing and locked gates, with signage at the nominated entry points.

19. There were two access roads to the site. Rocky Point Road was adjacent to the site and had approximately six site entry gates. An unsealed road, Awaba Road led to the Hardy Bros 'hardstand'. Within the site Rocky Point Road joined Canal Road. Rocky Point Road was a public road and was also used by Eraring Energy for their own operations, so road blocks or barriers could not be installed at this section.

20. Hardy Bros had an area known as the 'hardstand', approximately 1km west of the Haslin site office at the site. The hardstand had a workshop area and on 2 July 2009 a windrow was located near the workshop. The hardstand also contained an amenities shed and an administration office. A windrow is an embankment of dirt which is the result of earthmoving activities.

21. Late in the afternoon of 1 July 2009 Mr Dean on behalf of Hardy Bros notified WesTrac by telephone that the ripper tine on the dozer had broken and Hardy Bros required replacement of the tine to be carried out by Westrac. A further telephone call was made by Mr Dean to WesTrac the following morning.

22. On the morning of 2 July 2009 Mr Newman instructed Mr Race to attend the Eraring power station to inspect a damaged ripper tine on the dozer and take measurements for a replacement tine so as to ensure the correct tine was obtained.

23. Mr Race's regular vehicle was not operational and WesTrac had provided Mr Race with a 1 tonne utility vehicle for the task. Mr Race's regular vehicle had lifting equipment that consisted of shackles, a set of chains, eyebolts and other tools; however the replacement vehicle did not have any lifting equipment. Mr Race states that he could not move his equipment to the replacement vehicle as there were no lockable toolboxes available.

24. Mr Race attended the site and reported directly to the Hardy Bros hardstand, bypassing the main site office in accordance with the instruction he had received from Mr Newman that no induction was required at the site.

25. Mr Race took the required measurements and returned to the WesTrac branch at Thornton to source a replacement tine at approximately 8:00am. Mr Race was then instructed to travel to the WesTrac branch at Mt Thorley to pick up the tine. There was no discussion between Mr Race and Mr Newman as to how the tine was to be transported, lifted and installed at the site. At the Mt Thorley branch, the tine weighing approximately 1352kg was loaded onto Mr Race's vehicle by crane. Mr Race asked the crane operator the weight of the tine so he could estimate if it was too heavy for his vehicle. The crane operator told him the tine weighed 'about 1 tonne'. The work instruction provided by WesTrac identified the weight of the tine as 1352 kilograms.

26. Mr Race travelled approximately 900 metres to the yard known as the 'RB Lindsay' yard in order to obtain further tie down straps to secure the load for the drive to Eraring Power Station.

27. At approximately 1:30pm on 2 July 2009 Mr Race arrived back at the Hardy Bros hardstand at the site with the replacement tine, again bypassing the main site office.

28. Mr Race had a discussion with Mr Dean as to how the tine was going to be lifted. Mr Dean said they usually performed lifting tasks with the telehandler, using the pallet forks on the telehandler. Mr Race asked Mr Dean if they had a lifting attachment for the telehandler, such as a jib, but no jib attachment was available at the site.

29. Mr Bowerman offered to operate the telehandler to remove the tine from Mr Race's vehicle and Mr Dean permitted this course of action. Mr Bowerman did not have qualifications to operate the telehandler or sling loads without supervision. According to the log book kept by Mr Bowerman, he had operated the telehandler on four previous occasions under the supervision of Mr Christopher Rose, an accredited trainer who provided training services to Hardy Bros.

30. Mr Bowerman and Mr Dean retrieved equipment from the Hardy Bros workshop container. The equipment they obtained consisted of a flat webbing synthetic sling approximately 3 metres long and rated to lift 3 tonne, a piece of chain approximately 200mm long consisting of 10mm links with an 8mm 'grab hook' on one end, and a 12mm bolt on the other end. Grab hooks are used for shortening chains and tie downs, and are not designed to be used for lifting. No D shackle was available.

31. Mr Race inspected the sling, chain and grab hook and determined they were suitable for the task. Mr Race then got into the back of his vehicle to attach the lifting equipment to the tine. Mr Race attached the sling to the lug at the top of the ripper tine by passing the length of chain through the lug and one eye of the sling, and hooked it back on itself with the grab hook. Mr Bowerman operated the telehandler and lifted the tine, with the load slung from the lifting fork of the telehandler, from the utility vehicle and placed it on the ground. The lifting equipment was removed from the tine.

32. Mr Race and Mr Bowerman directed Mr Hasthorpe the dozer operator, to reverse onto the windrow, just in front of the hardstand area, and lower the damaged tine to its full extremity, embedding it in the dirt approximately two thirds of the tine length. Mr Hasthorpe remained in the driver seat while Mr Race and Mr Bowerman removed the top pin and locator securing the damaged tine in the ripper box. Mr Hasthorpe then raised the ripper box, leaving the damaged tine embedded in the soil and disengaged from the dozer. Mr Bowerman returned to the telehandler.

33. Mr Dean had been called away to another job. As he was leaving the hardstand area he asked Mr Race and Mr Bowerman if they needed assistance, and Mr Race said they did not.

34. Mr Race passed the sling through the top of the ripper box and using the same manner as for lifting the tine out of his vehicle, reconnected the sling to the replacement tine. The other eye of the sling was passed over the lifting fork of the telehandler so that when the tine was lifted, it would be pulled into the ripper box in an upright position so it could be attached to the dozer.

35. Mr Race directed Mr Bowerman and Mr Hasthorpe via hand signals to get the ripper box and tine in position. The tine was suspended when they discovered the tine was backward. Whilst the load was suspended, Mr Bowerman got out of the telehandler and he and Mr Race manually rotated tine to face the correct way. Mr Bowerman used a shovel to move some of the dirt in the windrow that was stopping them from turning the tine all the way.

36. Mr Bowerman got back into the telehandler and lifted the tine into place below the ripper box, however the ripper box was incorrectly aligned and the tine could not be fitted into the ripper box. Mr Race stood in close proximity to the dozer to inspect the alignment of the tine and the ripper box. With the tine suspended, Mr Race used hand signals to instruct Mr Hasthorpe to tilt the ripper box in order to adjust the alignment slightly. The ripper box then moved just a little bit in the wrong direction from the direction of Mr Race's hand signals. During this process the tine was dislodged and moved, the boot of the ripper touched the ground and took the load off the telehandler. This allowed the grab hook to disengage from the chain links and the sling.

37. The tine fell, striking Mr Race in the back, then falling across his right leg, fracturing it, then onto his left foot, trapping his boot underneath it. Mr Hasthorpe radioed for an ambulance. Mr Bowerman, and other staff members who had come to assist, used the telehandler to lift the tine off Mr Race's leg to free him.

Injuries

38. Mr Race sustained a crush injury to his lower right leg, which was later surgically amputated below the knee. Mr Race has a prosthetic leg and has ongoing physiotherapy and rehabilitation. Mr Race returned to work in November 2009 on light duties from home, two hours per day.

39. In December 2009 Mr Race commenced working in the WesTrac Thornton branch and currently is working full time as a field services coordinator for New South Wales managing WesTrac's rental equipment. It is unknown if he will be able to return to his pre injury duties as a mechanic.

Systems of Work Prior to the Incident

40. If contractors wanted to engage subcontractors to work at the site they had to notify Haslin, advising the dates, scope of works, duration and expected number of personnel. An induction date would be agreed upon and the subcontractors were required to attend and provide safe work method statements, insurances and construction induction cards before the subcontractor was allowed to work on site. Contractors were not authorised to induct their own subcontractors.

41. Hardy Bros were the only contractor allowed to induct visitors to the site. Visitors were to attend the Hardy Bros hardstand where they would be inducted, and were restricted to accessing the hardstand and Hardy Bros operations. Visitors were persons such as sales representatives or people from Eraring Energy and were not at the site to perform any kind of work. Visitors had to remain in the company of a Hardy Bros representative whilst on site. Workers at the site could only be inducted by Haslin.

42. Mr Race on instruction from Mr Newman bypassed the main site office and consequently Mr Race did not sign into the site. The principal contractor, Haslin, was unaware of Mr Race's presence at the site. Hardy Bros did not ensure Mr Race, when he attended the hardstand to undertake the work, had been provided with a site induction by the principal contractor. Nor did Hardy Bros ensure that Mr Race had been given a documented system of work for carrying out the task of installing the ripper tine by his employer, WesTrac.

43. Hardy Bros did not have a SWP for changing a ripper tine, nor did they request one from WesTrac. Although Hardy Bros had a subcontractor management system, this system did not require an assessment of the subcontractor's qualifications and procedures for undertaking the work. Nor did this system prevent subcontractors from commencing work unless they held the necessary competencies, equipment and safe work procedures.

44. Hardy Bros allowed Mr Bowerman to operate the telehandler and sling loads without the required training or certification in dogging and crane lifting. Mr Bowerman states that he was on a log book for the operation of the telehandler, and at the date of the incident there were only four days experience on the telehandler entered into the book. Mr Bowerman thought the load was 'about a tonne' because he says Mr Race had told him it was about a tonne. The tine weighed approximately 1352kg.

45. The Hardy Bros telehandler was not equipped with a jib to lift a suspended load. The telehandler did not have a load chart. The load was slung off the forks of the telehandler.

46. Hardy Bros allowed a chain and grab hook to be used to sling the load that were not suitable for the job. The chain used was designed for 'lashing' use only and should not have been used for lifting applications. In addition, the chain consisted of 10mm links, whereas the grab hook consisted of an 8mm link size. These two differing sizes would not allow correct engagement between the chain links and the grab hook.

47. There was no supervision and little consultation between the parties involved in the task of changing the ripper tine. The Hardy Bros supervisor, Mr Dean, left the scene before the tine was fitted into the ripper box. Mr Dean did not check the lifting gear selected to lift the tine was suitable for the task.

48. WesTrac had a Safe Work Procedure ("SWP") for changing a ripper tine, however it did not deal with the procedure for changing a ripper tine in the field, nor did it refer to the risks associated with slinging or lifting the tine.

49. WesTrac did not ensure Mr Race had specific training in relation to the procedure for changing a ripper tine of a D11R in the field. A SWP was available via his laptop, but he was not inducted to the SWP or trained in the task. The SWP available on Mr Race's laptop did not address the slinging method for removing the tine from the vehicle or for installing the tine in the digger. The SWP dealt with the removal and installation of the tine in the field but did not address the risks of replacing the tine 'in the field' and had no application to the specific task Mr Race was assigned by Mr Newman.

50. WesTrac did not ensure that a risk assessment was carried out in relation to the task of slinging and lifting the tine, or changing the tine 'in the field'.

51. WesTrac systems did not require persons carrying out the task of replacing a ripper tine on a D11 in the field to have dogging qualifications. WesTrac allowed Mr Race to sling and lift loads, although he did not have any certificates of competency in relation to slinging or lifting loads. Mr Race had undertaken approximately 8 hours training on slinging and lifting techniques in May 2004. There was no assessment of the course content to demonstrate his competency.

52. On the day of the incident, WesTrac did not ensure Mr Race held and utilised the appropriate equipment required to carry out the task of changing a tine in a field environment. Mr Races' usual vehicle had some lifting equipment, however this vehicle was being repaired and the replacement vehicle did not carry the range of equipment his regular vehicle carried or have any lifting equipment.

Systems of Work Following the Incident

53. Immediately following the incident Haslin suspended work on the reservoir and conducted a site meeting to inform personnel about the incident and discuss safety issues as a result of the incident.

54. Haslin issued a non conformance notice to Hardy Bros detailing remedial action to be taken. All personnel were re-inducted into the site, and Haslin further monitored Hardy Bros systems to ensure they carried out the agreed corrective actions. Haslin provided an additional safety officer to assist in monitoring contractor compliance. Tighter site security was put in place to prevent unauthorised persons accessing the site. More signage was installed directing personnel to report to the site office, and traffic controllers positioned on the main access road.

55. All contractors were required to review and re-induct workers to the SWMS and Hardy Bros systems were monitored, and a spot audit was carried out by Haslin.

56. Hardy Bros prepared a procedure for replacing a ripper tine after the incident, undertook a planned task observation and reviewed the task again. An alternative procedure for replacing a ripper tine was developed that was distributed across all Hardy Bros sites. The procedure included the requirement that a qualified dogman was to control the task and warned that persons, including the dogman, must remain outside the "strike zone" of the ripper box.

57. Hardy Bros implemented training to track employee competencies and there is a documented system for training and assessment. Mr Bowerman was provided with additional training and obtained a dogging and C6 crane driver licence.

58. Hardy Bros replaced the Manitou telehandler with a new telehandler shortly after the incident. A maintenance system for plant and equipment has been implemented and a system was developed for keeping daily records of plant. A safe cage is now used to store all the lifting equipment.

59. Hardy Bros undertook an audit and review of its subcontractor management system, including its subcontractor assessment form. The assessment form was revised to include a checklist for all the requirements that a subcontractor must satisfy, such as relevant licences and tickets. The checklist was to be completed by both the subcontractor and the representative of Hardy Bros. In addition, the assessment form now included a "Hold Point" required to be signed by both the subcontractor and Hardy Bros' representative prior to the subcontractor commencing work. Without both signatures of the subcontractor and the Hardy Bros' representative, the subcontractor was not approved to commence any work.

60. A revised subcontractor information letter was also prepared by Hardy Bros which explained the "Hold Point" mechanism and assisted the subcontractor in completing the Hardy Bros subcontractor assessment process. This information letter included a sample "Statement of Competency" which subcontractors were required to provide Hardy Bros, in order to verify their competence to perform the work before commencing.

61. WesTrac reviewed the CAT service information system and initially did not make any changes to the procedure for changing a ripper tine. After an Improvement Notice was issued on 3 August 2010, WesTrac produced two SWP for the task of changing a ripper tine addressing a field changeover and risks in slinging techniques. The amendments to the SWP included that a qualified dogman was to conduct or assist in the task, and warned that persons should stay out of the vicinity of a suspended load. The revised SWP also states that the dogman must inspect lifting chains and equipment and ensure that current test tags are in place prior to use.

Decision last updated: 04 December 2012