Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Christensen v Coastal Asphalt and Civil Constructions Pty Ltd [2012] NSWIRComm 150
• Hearing dates: 10 December 2012
• Decision date: 20 December 2012
• Jurisdiction: Industrial Court of NSW
• Before: Boland J, President

Decision

The Court makes the following orders:

(1) The defendant, Coastal Asphalt and Civil Constructions Pty Ltd, is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000.

(2) The defendant is fined an amount of $250,000.

(3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court.

(4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecution for breach of s 8(1) of Occupational Health and Safety Act 2000 - Fatality - Civil construction industry - Employee run over and crushed by a multi-wheeled roller - Plea of guilty - Defendant convicted of offence - Victim impact statement - Penalty imposed
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Occupational Health and Safety Act 2000
• Cases Cited: Capral Aluminium Ltd v Workcover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8; Inspector Andrew Rowe v Roads and Maritime Services of New South Wales [2012] NSWIRComm 43; Inspector Ankucic v State of New South Wales (NSW Police Force) [2012] NSWIRComm 135; Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145; Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55; Inspector James v Roads and Traffic Authority of New South Wales [2011] NSWIRComm 27; Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47; Inspector Paul Jorgensen v Christopher John O'Keeffe and CJ & SJ O'Keeffe Building Pty Ltd [2004] NSWIRComm 397; Inspector Templeton v Pavese Citrus Pty Ltd [2004] NSWIRComm 322; Inspector Yeung v Thiess Pty Ltd (No 2) (2004) NSW IRComm 96; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048; Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143; Workcover Authority of New South Wales (Inspector Gill) v Boral Transport Pty Ltd [2005] NSWIRComm 276; Workcover Authority of New South Wales (Inspector Mauger) v Pioneer Road Services Pty Ltd [1998] NSWIRComm 484; Workcover Authority of New South Wales (Inspector Schultz) v Pioneer Road Services Pty Limited [1998] NSWIRComm 479; Workcover Authority of NSW v C I & D Manufacturing Pty Ltd [1994] NSWIRComm 230; (1998) 82 IR 151; Workcover Authority of NSW (Inspector Dawson) v Roads and Traffic Authority [1998] NSWIRComm 230; Workcover Authority v Red Lea Chickens [2000] NSWIRComm 203
• Category: Principal judgment
• Parties: Inspector Madeline Christensen (Prosecutor); Coastal Asphalt and Civil Constructions Pty Ltd (Defendant)
• Representation: Mr A Casselden of counsel (Prosecutor); Mr G Rich of counsel (Defendant); WorkCover Authority of New South Wales (Prosecutor); Moray & Agnew Solicitors (Defendant)
• File Number(s): IRC 1901 of 2011

Judgment

1 This matter concerns the prosecution of Coastal Asphalt and Civil Constructions Pty Ltd ("the defendant") for breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The prosecution arose out of an incident that occurred on 14 January 2010 on a road known as The Lakes Way at Boolambayte in which a 31 year old labourer, Andrew Maddalena, sustained fatal injuries when he was run over and crushed by a multi-wheeled roller driven by Benjamin Newman. Mr Maddalena and Mr Newman were employees of the defendant.

2 Section 8(1) of the Act provided at the relevant time:

(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

3 The amended charge against the defendant alleged that it failed:

By its acts and omissions as particularised below, to ensure the health, safety and welfare at work of all its employees, and in particular Andrew Maddalena, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

The particulars of the charge are:

Particulars of the risk:

1. The risk referred to in these particulars and in the charge is the risk to health, safety and welfare of employees, and in particular Andrew Maddalena, of receiving an injury by being struck by moving plant at the site.

2. The defendant, as a consequence of failing to take the measures particularised below, exposed its employees, and in particular Andrew Maddalena, to the risk by allowing moving plant, being a three tonne model TS31 Sakai 7 tyred multi-wheeled roller ("the roller") driven by Benjamin Newman, to strike and drive over Andrew Maddalena whilst he was working at the site.

Particulars of the task:

3. The defendant's employees, in particular Andrew Maddalena, were undertaking work relating to the laying of asphalt at the site and from time to time, were directed to spray diesel on the tyres of the roller using a hand held portable spray unit to prevent the build up of asphalt or the adhesion of asphalt on the tyres of the roller whilst it was in operation ("the task").

Particulars of the defendant's failings in relation to providing safe plant

4. The defendant failed to ensure that plant, in particular the roller, which was provided for use by the employees at work was safe and without risks to health when properly used.

5. The defendant should have taken but failed to take the following measures in order to ensure that the roller was safe and without risks to health when properly used:

(a) Ensuring that the diesel spray unit of the roller was in proper working order;

(b) Ensuring that adequate mats and scrapers were fixed to the roller to help prevent any asphalt adhesion to the tyres; and

(c) Ensuring that all operating controls on the roller were clearly labelled in English.

Particulars of the defendant's failings in relation to the system of work

6. The defendant failed to provide a safe system of work which was safe and without risks to the health of its employees and in particular Andrew Maddalena with respect to the task.

7. The defendant should have taken but failed to take the following measures in order to ensure a safe system of work for the task at the site:

(a) Having in place a system of work to prevent and remove the build up of asphalt or the adhesion of asphalt on the tyres of the roller by using the roller's purpose built spray system;

(b) Having in place a system of work to prevent and remove the build up of asphalt or the adhesion of asphalt on the tyres of the roller by stopping and turning the roller's engine off and whilst it remained stationary scrapping off the asphalt by the use of a shovel or some other implement and if necessary using a liquid to assist with its removal;

(c) Having in place a system of work to prevent and remove the build up of asphalt or the adhesion of asphalt on the tyres of the roller by driving the roller in a circular fashion over unsealed ground;

(d) Ensuring that workers would not come within a 3 metres approach distance of the roller when it was in operation;

(e) Having in place a system to ensure that an observer or spotter was present if a worker was required to come within 3 metres of the roller when it was in operation;

(f) Having in place a system to ensure that the roller was properly secured when stationary by ensuring that the engine was switched off, the park brake was engaged and the wheels chocked before the operator left the drivers seat; and

(g) Ensuring that an appropriate hazard identification and risk assessment was conducted for the task.

Particulars of the defendant's failings in relation to information, instruction and training

8. The defendant failed to provide such information, instruction and training to its employees as was necessary to ensure the health, safety and welfare of Andrew Maddalena whilst he was undertaking the task at the site.

9. The defendant should have taken but failed to take the following measures in order to ensure that adequate information, instruction and training was provided to Andrew Maddalena and Benjamin Newman in relation to performing the task at the site:

(a) Should have provided Andrew Maddalena and Benjamin Newman with adequate training in relation to remaining a distance of 3 metres from the roller whilst it was in operation;

(b) Should have provided Andrew Maddalena and Benjamin Newman with adequate training in relation to the need to have an observer or spotter present when a worker was required to come within 3 metres of the roller whilst it was in operation;

(c) Should have provided Andrew Maddalena and Benjamin Newman with adequate training in relation to the removal of asphalt from the tyres of the roller by using one of the following measures:

i) By using the roller's purpose built spray system;

ii) By stopping and turning the roller's engine off and whilst it remained stationary scrapping off the asphalt by the use of a shovel or some other implement and if necessary using a liquid to assist with its removal; and

iii) By driving the roller in a circular fashion over unsealed ground.

(d) Should have provided Benjamin Newman with adequate training in relation to the need to properly secure the roller whilst it was stationary by ensuring that the engine was switched off, the park brake was engaged and the wheels chocked before the operator left the drivers seat; and

(e) Should have provided Andrew Maddalena and Benjamin Newman with training in relation to the contents of the Job Safety and Environmental Analysis document in respect to the use of the roller at the site.

Particulars of the defendant's failing in relation to supervision

10. The defendant failed to provide such supervision to its employees as was necessary to ensure the health, safety and welfare of its employees, and in particular, Andrew Maddalena, whilst performing the task at the site.

11. The defendant should have taken but failed to take the following measures in order to ensure that adequate supervision was provided to its employees, and in particular, Andrew Maddalena in relation to performing the task at the site:

(a) Ensuring that Andrew Maddalena remained a distance of 3 metres from the roller whilst it was in operation;

(b) Ensuring that an observer or spotter was present should Andrew Maddalena have been required to come within 3 metres of the roller whilst it was in operation;

(c) Ensuring that an adequately trained person was supervising Benjamin Newman in relation to the need to properly secure the roller whilst it was stationary by ensuring that the engine was switched off, the park brake was engaged and the wheels chocked before he left the drivers seat; and

(d) Ensuring that an adequately trained person was supervising Andrew Maddalena whilst he was performing the task at the site.

As a result of the acts and omissions as particularised above, Andrew Maddalena was placed at risk of injury.

As a result of the acts and omissions as particularised above, Andrew Maddalena was fatally injured.

4 The defendant entered a plea of guilty to the amended charge.

Agreed statement of facts

5 The prosecutor tendered an agreed statement of facts ("ASF"). Annexed to the ASF were the following documents:

1. A factual Inspection Report of Inspector Bronwen Halcroft dated 18 January 2010.

2. Nine photographs taken at the incident site by Inspector Halcroft dated 14 January 2010.

3. Four photographs taken at the incident site by Inspector Halcroft dated 19 January 2010.

4. Three photographs taken by the prosecutor dated 16 March 2010 depicting a Sakai multi-wheeled roller fitted with mats and scrapers.

5. Job Safety and Environmental Analysis (Use of roller on site) dated 27 January 2009.

6. Job Safety and Environmental Analysis (Placing Asphalt) dated 10 November 2009.

7. Revised Job Safety and Environmental Analysis (Use of roller on site) dated 27 January 2010.

8. Revised Job Safety and Environmental Analysis (Placing Asphalt) dated 27 January 2010.

9. Job Safety and Environmental Analysis (Removal of debris from tyres and drums of rollers) dated 19 December 2011.

10. Prior convictions search - showing no prior convictions.

6 The ASF indicated that the defendant provided management services and labour for Diveva Pty Ltd, trading as Mid Coast Road Services. The defendant and Diveva have common directors. The defendant and Diveva carried on the business of civil construction work, specialising in road construction.

7 According to the ASF, Diveva was engaged by Great Lakes Council to undertake the supply, delivery and placement of asphaltic concrete on a 12-month contract. The work being undertaken was for the safety realignment and widening of a stretch of highway known as Segment 62, The Lakes Way, Boolambayte (the site). Diveva engaged the defendant to provide labour to undertake the work at the site.

8 The ASF stated that Mr Maddalena commenced employment with the defendant on 12 January 2010 and was on a two-day trial at the time the incident occurred. Mr Maddalena was given a company induction and was employed to work with the asphalt crew who were responsible for undertaking the asphalt overlay at the site. Mr Maddalena held a ticket to operate a class LR Road Roller, with an engine capacity of more than two litres. This ticket was issued on 3 March 2009.

9 The ASF explained that in order to compact the high and low points on the asphalt mat, the defendant used a Sakai multi-wheeled roller. The roller was owned by Diveva but was regularly used by employees of the defendant and had four wheels at the front and three wheels at the rear. The roller was used to finish the asphalt mat and remove any marks and blemishes.

10 The ASF described the incident in which Mr Maddalena was killed in the following terms:

On 14 January 2010, a number of persons employed by the defendant were undertaking tasks associated with laying asphalt at the site. Mr Maddalena was raking the asphalt at the site. Mr Newman was operating the roller.

Throughout the day, there had been problems with the build up of asphalt on the tyres of the roller due to the sticky consistency of the type of asphalt being laid at the site. In order to minimise the build up of asphalt, the defendant utilised a system whereby employees would use a portable hand held pressurised spray bottle to spray diesel onto the tyres of the roller.

Towards the end of the day, Mr Newman had difficulty getting the roller up the steepest hill on the site. Mr Newman had to stop the roller and let it cool down and then take off again to try and make it up the hill. Mr Newman stated that it took close to one hour to get the roller to the top of the hill where the rest of the crew were working.

Mr Newman parked the roller off the road and went and spoke to Mr Bone, the Foreman, informing him that the hill was too steep to use the roller. Mr Bone instructed Mr Newman to put some diesel onto the tyres in order to combat the build up of asphalt and try again.

Mr Newman got back in the roller and moved it away from the side of the road into the middle of the lane on the existing road. Mr Newman asked Mr Maddalena (who at the time was raking the asphalt) to spray diesel onto the tyres of the roller. This system which involved manually spraying diesel on the tyres whilst the roller was moving away from the person, who was spraying the tyres, was regularly used by employees of the defendant to combat tar build up on the tyres of the roller. The system used by the defendant also included the use of water spray from the on board water spray system and the application of sand spread across the road surface.

Mr Newman handed Mr Maddalena the spray bottle containing diesel from the floor of the roller. Mr Maddalena walked around to the front of the roller and put the spray bottle on the bonnet of the roller and started pumping the handle of the bottle.

As Mr Maddalena was pumping the handle of the spray unit, Mr Newman told him to tighten the lid of the bottle, as he was pumping the handle and the unit was not generating any pressure to use the spray. Mr Maddalena did not appear to understand this instruction, and so Mr Newman stated that he then hit the 'red park brake button' on the roller and rose up to lean forward to talk to Mr Maddalena but in doing so, he leaned slightly to the left and bumped the forward control lever. The roller then lurched forward and Mr Newman lost his balance as he was leaning forward and slightly to the left. The floor of the roller was slippery from the diesel that had leaked from the spray unit and there were stones embedded in the soles of Mr Newman's boots. When Mr Newman felt himself topple he pushed himself off the roller to land on his feet, and spun around and grabbed the control lever and put the roller into neutral.

Mr Newman then stated that he tried to reach across and hit the brake again and it was at this time that he realised that Mr Maddalena was underneath the roller. Mr Newman called for help. Mr Newman stated that at the time of the incident, Mr Maddalena was standing approximately an arm's length away from the roller.

Benjamin Phillpott (Mr Phillpott), another worker at the site, had used the portable spray unit to spray diesel onto the tyres of the roller approximately 10 minutes prior to the incident occurring. At this time, the spray unit was in good working order. After Mr Phillpott had finished this task, the spray unit continued to emit diesel. Mr Phillpott undid the lid of the spray unit to reduce the pressure in the unit and to stop the diesel from spraying out. He then placed the spray unit on the ground next to a nearby ute.

After Mr Newman called for help, he attempted to lift the roller off Mr Maddalena. Todd Howe, who was operating a bobcat at the time of the incident, used the bobcat to lift the roller off Mr Maddalena. At the same time, emergency services were contacted to attend the site.

Mr Maddalena sustained fatal injuries as a result of being run over by and crushed under the roller. The autopsy report indicated that Mr Maddalena died from massive head, face, neck, and chest injuries including extensive crush injuries to the skull.

11 The ASF described the work systems prior to the incident. Employees of the defendant operated under the occupational health and safety system of Diveva. All staff, including those who were employed by the defendant, were inducted under the same system before commencing work. The ASF continued:

The roller had been bought second hand approximately five years before the incident occurred. When the roller was purchased, it was initially equipped with two spray/sprinkler systems, one for spraying water and the other for spraying diesel or another liquid. The roller did not have mats and scrapers fitted at the time of purchase nor did any operator's manual come with the purchase of the roller. At the time of purchase all operating controls of the roller were labelled in Japanese. The machine had been serviced in December 2009 and an inspection report carried out by Jamie Trotter Redhead Machinery Sales found that the machine was in good condition.

Shortly after the roller was purchased, the diesel spray unit on the roller was disconnected. The reason for disconnecting the diesel spray unit was because the unit leaked diesel and if it leaked onto the asphalt it would interfere with the integrity of the asphalt. Prior to disconnecting the diesel spray unit on the roller, the defendant did not consider fitting mats and scrapers on the roller to prevent the build up of asphalt on the tyres.

In order to avoid the build up of asphalt on the tyres of the roller, the operator of the roller would test the temperature of the tar, spread sand over the surface as required and use water from the on board water system on the machine.

The system of work adopted to remove the build up of asphalt on the tyres of the roller after the diesel spray unit was disconnected, was to have someone spray the tyres of the roller with diesel from a portable hand held pressurised spray unit. The person spraying the tyres would spray the front tyres while the operator moved the roller in reverse and then spray the rear tyres while the roller was moving in a forward direction. The roller operator did not get out of the roller and spray the tyres himself as the diesel would run off the tyres and puddle on the road, which would interfere with the integrity of the asphalt mat.

Prior to implementing the system of spraying the tyres with diesel using the portable pressurised spray unit, the system was to apply diesel to the tyres by using a mop soaked in diesel or a rag soaked in diesel attached to a cut-off mop handle.

At the time of the incident, the controls on the dash of the roller were printed in Japanese. The defendant had printed and affixed labels on the controls in English, but at some time prior to the incident, these labels had come off and had not been replaced.

At the time of the incident, the defendant had in place a generic Job Safety and Environmental Analysis (JSEA) for the "Use of Roller on Site" which covered the operation of rollers in general. No specific JSEA was in place for the Sakai multi wheeled roller and no reference was made in the generic JSEA to the removal of tar from the tyres of the roller.

At the time of the incident, the defendant also had in place a JSEA for "Profiling Pavement" and for "Placing Asphalt. This document identified the potential hazard of 'being struck by moving plant' with proposed control measures of observing exclusion zones of 5 metres to the front and rear and 2 metres to each side of moving machinery. The defendant also had a seat belt policy which required the operator to use a safety belt when operating machinery.

At the time of the incident, a risk assessment had been carried out in relation to the roller however the defendant had not undertaken a risk assessment prior to disconnecting the diesel spray unit in the roller and failed to implement a safe system of work to remove the build up of asphalt on the tyres of the roller.

The defendant used a 'Daily Inspection Procedures' book to record mechanical problems with plant or machinery, also known as a 'tick and flick' book. Mr Newman carried out the checks that were required by the Daily Inspection Procedures book on 14 January 2010 and checked and confirmed that the brake on the Sakai multi-wheeled roller was functioning properly.

An independent inspection of the roller was carried out by Mr D B Haynes, of Douglas Barry Haynes Services at the request of WorkCover. He opined that had the parking brake been activated as claimed by the operator, Mr Newman that no forward movement of the roller would have been possible. Had the parking brake been applied as stated by Mr Newman it would not have been possible for the machine to move forward or at all even if the controller had been accidentally activated.

The supervisor on site at the time of the incident was Steven Bone. Mr Bone reported to Craig Harris (Mr Harris), who was the Crew Manager and employed by Diveva. Mr Harris was not on site on the day of the incident. Both Mr Harris and Mr Bone had previously instructed Mr Newman to spray diesel onto the tyres of the roller using the portable spray unit.

On the morning of the incident, the crew at the site took part in a toolbox meeting conducted by Mr Bone, where various points were discussed, including first aid and emergency meeting points, along with instruction as to what equipment the crew would be working with that day, traffic issues, and safety with mobile plant moving.

Mr Maddalena's training records indicate that he was provided with a Personal Safety Handbook and Workplace Safety Rules at his induction into the company.

12 Following the incident, the defendant took steps to revise its policies and procedures relating to occupational health and safety. The changes were described in the ASF as follows:

After the incident, the defendant implemented three new JSEA documents titled 'Removal of debris from rollers', 'use of roller on site and 'placing asphalt'. The JSEA dealing with the removal of debris requires the roller's on board water spray system to be used and no portable spray system is allowed to be used. The JSEA prohibits spraying diesel on the tyres / drums of the roller. To control the risk of being struck by moving plant, these JSEA's now state that when removing debris from tyres of the roller, the roller must be stopped and the vehicle must be in park brake position, and operators within the machinery exclusion zone must not approach the machine from the travel direction.

Following the incident, the controls for the roller were labelled in English.

Diveva purchased a new multi-wheeled roller (for use by employees of the defendant) that was fitted with mats and scrapers to reduce the need to spray the wheels with diesel. The defendant now uses a detergent called 'pearly white' in the water spray unit of the roller to combat the build up of tar on the tyres. It also has fitted mats and scraper to the Sakai roller.

The defendant immediately re-engaged the external occupational health and safety company to conduct an independent review of all of its occupational health and safety systems and documentation. In addition to that review, the defendant undertook a number of other measures including:

Increasing assessments on staff competency of machine operation and ensuring that records of such training and assessments are maintained;

Providing extra training to all employees on safe operation of plant;

Conducting random site safety audits; and

Reviewing plant risk assessments.

13 The ASF indicated that the defendant cooperated with the WorkCover Authority during its investigation into the incident.

Evidence for the defendant

14 For the defendant an affidavit of Craig Steven Pinson was tendered.. Mr Pinson was the Managing Director of the defendant, and the related company, Diveva.

15 Mr Pinson described how he started into business in 1987/88 and how his business developed from there. Mr Pinson deposed that at the time of the incident, his wife and he were the only director/shareholders of both the defendant and Diveva. He explained that the two companies are "integrated parts comprising the one family business operating as "Mid Coast Road Services (MCRS)"".

16 Mr Pinson stated that at the time of the incident the defendant employed 26 staff. Taking into account staff employed directly by Diveva, the entire number of staff employed in MCRS business at the time of the incident was 34. The total number of workers engaged by the defendant and MCRS to work on Segment 62 was eight.

17 Mr Pinson described the occupational health and safety policies and procedures in place at the time of the incident. These included:

(a) a documented OH&S Management System in place with written policies, safe work procedures, provision for training and instruction, provision for review, audits and checks etc.;

(b) in 2004, the OH&S Management System was subject to an extensive and comprehensive review;

(c) in 2005, MCRS was given prequalification certification by the Roads and Traffic Authority of NSW (RTA) for roadwork and asphalt paving under its "rigorous" prequalification scheme. As part of the prequalification certification, our OH&S Management System was assessed and independently reviewed, and subsequently accredited with the RTA as addressing the requirements of the NSW Government Occupational Health and Safety Management Systems Guidelines (4th Edition), June 2004;

(d) there were a number of relevant Job Safety and Environmental Analysis (JSEAs) in place applying to the road construction project, namely for:

(a) use of seat belts whilst operating rollers,

(b) use of rollers (generic),

(c) asphalting and use of rollers,

(d) profiling pavement and asphalt overlay;

(e) The system of work in place at the time of the incident relevantly provided for: (a) use of a seat belt by operator of the roller during its operation;(b) the application of a parking break to immobilise roller when it was stationary; (c) the control of a worker approaching the roller only after establishing direct eye contact with the operation (d) spreading of a light cover of sand along the surface to be rolled; (d) the continued use of on-board water sprayer; (e) the application of diesel directly on tyres of the roller as it moved away from the worker cleaning the tyres by spraying diesel directly onto the tyres using a manual spray pump.

(f) Mr Pinson believed at the time that this system of cleaning asphalt from the tyres/drum of the roller was industry best practice at the time of the incident. He now accepts that this was not a sufficient system to ensure the safety of persons attending rollers to clean its drum/tyres, as Mr Maddalena had apparently sought to do.

(g) other key safety measures in place at the worksite of the road construction project at the time of the incident:

(i) All workers (including Mr Maddalena) were inducted including with reference to JSEA documents. The risk of being struck by plant and machinery was covered in the training provided by the induction process and also at toolbox meetings;

(ii) Each morning before any work commenced there was an on-site toolbox meeting attended by all employees where duties and systems of work and safety issues were discussed and emphasised. Mr Maddalena and other workers were present at these meetings including on the day of the incident. This meeting expressly included, amongst other things, identification of risks involving moving plant /reversing trucks;

(iii) Workers were given and were required to signed JSEAs for work carried out at the site

(iv) There was a daily inspection procedure carried out for each plant (including the Sakai Roller in question) and a system to report and record any mechanical problems....

(v) MCRS' site supervisors were experienced in occupational health and safety and risk management.

(h) at the time of the incident (and thereafter) the defendant had dedicated internal and external personnel to assist with the defendant's overall occupational health and safety compliance including in developing OH&S Management System and development and implementation of proper safe work procedures and practices.

18 Mr Pinson identified safety measures implemented by MCRS following the incident to prevent a reoccurrence of the incident included the following:

(a) all WorkCover's Prohibition and Improvement Notices were complied with immediately and in full;

(b) an external consultant was engaged to undertake a comprehensive and independent review of our OH&S Management System.... All recommendations made by the external consultant for changes to the OH&S Management System have been implemented;

(c) since January 2012, the defendant has been developing and implementing an Integrated Management System (IMS), which will integrate with its OH&S Management System, Environmental Management System and Quality Management System. The defendant is still in the initial stages of implementing this system. It expects that the IMS will be fully operational in another 12 months time, after which it intends to have the IMS fully accredited;

(d) the defendant has increased competency assessments for staff operating machines which involve: specific induction with a sign off of relevant documentation; maintenance of a personal log book under the supervision of a competent operator who signs off on a daily basis, followed by a competency based assessment in respect of each type of machinery;

(e) the defendant has reviewed record keeping for all staff training and assessments;

(f) the defendant has increased the amount of training on safety and operational matters given to its workers;

(g) after the incident, a policy was introduced whereby all MCRS project managers are required to conduct regular formal training days with all construction staff with the aim of improving their work awareness including safety awareness;

(h) immediately after the incident, a new policy concerning "People and Machinery Mix" was prepared and all applicable workers have been inducted and signed off on this policy....

(i) new risk assessments were conducted in respect of plant and machinery. The risk assessment team comprised of representatives from management, administration, mechanics, operators and general labour;

(j) the procedure for cleaning asphalt from the tyres of the rollers was changed. A detergent has now been added to the water sprays attached to rollers and a scrapper has been attached to all rollers to assist with managing the build-up of asphalt to tyres/drums. Should build up of asphalt occur, the defendant removes the build-up in accordance with new JSEA "Removal of debris from tyres and drums of rollers";

(k) the applicable JSEAs were revised to expressly provide for an exclusion zone to prevent any worker approaching moving machinery (roller). Under the procedure, if a worker needs to enter the exclusion zone he or she must make eye contact with the roller operator. The operator then must invite the worker into the exclusion zone only after the machinery (roller) is stopped and vehicle is placed in park brake position;

(l) the defendant has implemented a "zero tolerance" policy towards workers who undertake unsafe practices;

(m) the defendant has created an employee Health and Safety Committee known as OH&S Safety Group one week after the incident. The committee is made up of representatives from each work division of MCRS business. The committee meets monthly and its meetings are minuted. The minutes are then sent to Mr Pinson for consideration and approval, or to the general manager in his absence;

(n) approximately 4 months ago two new management positions were created to address worksite quality and safe work practices;

(o) the defendant has increased the frequency and rigour of random spot audits at worksites. These audits are undertaken without notice to the worksite and can be undertaken by designated personnel or any personnel in management;

(p) approximately 8 months ago we supplied IPADs to all supervisors for use at construction worksites as a deliberate measure to continually improve health and safety compliance. An important purpose of supplying IPADs is to allow supervisors to immediately report incidents including near misses so that management can take appropriate corrective action shortly thereafter, or to immediately raise issues with senior management or WHS Manager which relate to work health and safety at the worksite. Given that many construction worksites are in remote areas, prior to providing IPADS sometimes information concerning the worksite may not reach management until days later;

(q) the defendant has created a management team that assists Mr Pinson and his wife to run MCRS business. The management team meet every Wednesday and meetings are minuted. At every meeting the WHS Manager provides a report to the team on matters relating to health and safety compliance including proposed changes to occupational health and safety policies, procedures, matters relating to the operation of our OH&S Management System, any incidents or nears misses and what immediate corrective action has been taken and what medium and longer term measures are recommended to be implemented eg further training in specific areas;

(r) the defendant revised its induction course so that it is more rigorous and readily understood by all workers. The induction course goes for approximately 4 hours. Many of our workers have difficulty with literacy. Accordingly, we have included more audio and video material in the current induction course to enable matters relating to work safety to be more clearly understood. At the end of the induction, each worker is given a written questionnaire to compete so that the defendant can assess how much the worker has learnt and understood.... In respect of any incorrect answer, the worker will have a one-on-one session with the person conducting the induction to address deficiencies in understanding. Upon a worker successfully completing the induction course, the worker is given a copy of our Personal Safety Handbook for their ongoing reference and review, and a personal protection equipment (PPE) kit;

19 Mr Pinson deposed that the defendant had established an annual "Andrew Maddalena Training Day" in memory of Mr Maddalena, which it is committed to run as an annual event. The training day is held on the first day back from the Christmas/New Year Holiday and occurs around the anniversary of Mr Maddalena's death. The defendant has held two such training days so far. Mr Pinson explained that:

On the Andrew Maddalena Training Day, business is not conducted and all workers (including management) attend an all day training function. At the function we have a photo of Mr Maddalena. At the beginning of the function we have a minute silence to remember Mr Maddalena and anybody else workers may know of (not simply from the business) who has suffered a workplace injury or death.

We then spend the entire day discussing safety. This includes having every worker re-inducted; showing videos about work safety; and having workers break up into groups to discuss safety issues.

20 In relation to the effect of the incident on Mr Pinson and his wife, it was Mr Pinson's evidence that:

My wife and I, and many staff working at the time of the incident, have been devastated by the incident.

On the night of the incident, I contacted Mr Maddalena's parents and briefly informed them of what had happened to Mr Maddalena and then requested that I meet with them the following day. I met Mr Maddalena's parents the subsequent day and informed them of what had happened (in terms of my understanding of the immediate cause of his death) and also conveyed my wife's and my sincere regret for what had happened to Mr Maddalena. My wife and I attended Mr Maddalena's funeral and we send flowers to his parents every year on the anniversary of his death. We are aware that Mr Maddalena was separated from his wife at the time of his passing and he has young children.

We provided counselling to all workers, by Ken Blacker (a specialist in trauma counselling), who were present at the worksite when the incident occurred or were having difficulty coping with the incident.

Meeting Mr Maddalena's parents and discussing what had happened to Mr Maddalena is one of the hardest things I have ever had to do, and it is not something I ever want to go through again. It has driven my wife and I to continually strive to achieve occupational health and safety best practice. Occupational health and safety is the foremost priority in our business; we want to ensure that all our workers are kept safe at work and return home safely and in good health at the end of each day's work.

Both my wife and I are still very much affected by Mr Maddalena's passing even though we hardly knew him beforehand. On introspection, apart from anything else, I think this has a lot to do with the responsibility we feel over Mr Maddalena's death as the owners of the business. I suspect we will never get over this incident fully; I expect it will live forever in our memory. Despite the pain we feel, I can only imagine the devastation Mr Maddalena's family may still be going through. Soon after the incident, our young son commenced working in our business and as parents we have appreciated even more the importance of ensuring that all workers we engage are kept safe.

My wife and I would like to take this opportunity to again express our deep and sincere regret for what has happened to Mr Maddalena. We feel deeply responsible for what has happened and wish every day we could change the past.

Mr Maddalena's passing has certainly placed even more focus on health and safety and driven us to continually improve our health and safety compliance with the aim of avoiding any significant injury in the future.

21 Mr Pinson deposed that MCRS is considered a large employer in the community of Wauchope (Wauchope has a population of approximately 6000 people). Further, that MCRS is reasonably active in the community. Over the last three years it has been the exclusive sponsor of a Golf Charity Day, which is intended to be an on-going annual event. Proceeds of the event are donated to Lifeline and Rotary.

Consideration

The offending conduct

22 The risk in respect of which the defendant pleaded guilty was the risk of receiving an injury by being struck by moving plant at the site. The risk arose in the following circumstances: Mr Bone, the defendant's foreman on site, instructed Mr Newman to put some diesel onto the tyres in order to combat the build up of asphalt. Mr Newman instructed Mr Maddalena to spray diesel onto the tyres of the roller. Mr Newman handed Mr Maddalena a portable spray bottle that contained diesel to perform this task. Mr Maddalena walked around to the front of the roller and placed the spray bottle on the bonnet of the roller and commenced to pump the handle of the bottle. The roller was still under power and Mr Newman was positioned in the driver's seat. Mr Maddalena appeared to be having difficulties pumping the diesel from the spray bottle. While this was happening Mr Newman, who was situated on the roller, leaned slightly to the left and bumped the forward control lever causing the roller to lurch forward over Mr Maddalena crushing him under the roller.

23 The defendant failed in a number of respects to ensure Mr Maddalena's safety: the plant was not safe; for example, there was a failure to ensure that adequate mats and scrapers were fixed to the roller to help prevent any asphalt adhesion to the tyres. The system of work was not safe; for example, there was a failure to ensure that workers would not come within a three metres approach distance of the roller when it was in operation. Information, instruction and training was inadequate; for example, the defendant should have provided Mr Newman with adequate training in relation to the need to properly secure the roller whilst it was stationary by ensuring that the engine was switched off, the park brake was engaged and the wheels chocked before the operator left the driver's seat. Supervision was inadequate; for example, the defendant should have ensured, through adequate supervision, that Mr Maddalena, who was on a two-day trial, remained a distance of three metres from the roller whilst it was in operation.

24 By its plea of guilty, the defendant has accepted the failures and inadequacies pleaded in the charge. These are substantial; they reflect a failure on the part of the defendant to be diligent and proactive in searching out the risks associated with a combination of workers and heavy plant in close proximity to each other and taking steps to avoid or minimise those risks.

25 At the time of the incident, the defendant had in place a JSEA for "Profiling Pavement" and for "Placing Asphalt". This document identified the potential hazard of 'being struck by moving plant' with proposed control measures of observing exclusion zones of five metres to the front and rear and two metres to each side of moving machinery. The defendant had no specific JSEA in place for the Sakai multi-wheeled roller and no reference was made in the generic JSEA to the removal of tar from the tyres of the roller. However, the defendant did have a system that required:

(a) that spraying of diesel should only occur when the roller was moving away from the employee;

(b) a safety belt should be used by all machine operators;

(c) that the parking brake on the roller should be applied whenever it was stationary;

(d) a 5m exclusion zone around plant to be applied unless eye contact established with the machine operator and the employee was then directed to approach by the operator;

(e) an induction process to be conducted which emphasised the risks of moving plant;

(f) a daily Toolbox meeting to be held which dealt with the dangers of moving plant.

These matters indicate the defendant was clearly conscious of the need for safety and had attempted to address safety. These obviously genuine attempts should be taken into account in mitigation.

26 There was clearly inadvertence or inattention on the part of Mr Newman in failing to apply the park brake and failing to have his seat belt on and that contribution to what occurred should also be reflected in the sentence in favour of the defendant in the manner described by the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 at [15]-[16].

27 However, the flaw in the defendant's system was that it permitted a situation to arise whereby a worker could approach the roller whilst its motor was running to obtain the sprayer, which was kept on the roller, and to allow the worker to remain in the immediate vicinity of the roller (indeed, in front of the roller) before commencing the actual operation of spraying the tyres. Whilst the spraying was to be carried out behind the roller as it moved away from the worker, the defendant's systems did not adequately address what was required to ensure safety up to that point and which allowed the worker, in this case Mr Maddalena, to come within the striking distance of a piece of heavy plant that was in operation.

28 The defendant had not carried out a risk assessment as to spraying of the tyres. If that had been done in a thoroughgoing way it is likely to have revealed the risk of a worker approaching the roller whilst it was still in operation in order to obtain the sprayer and thereby putting the worker in harm's way.

Foreseeability of the risk

29 In Capral Aluminium Ltd v Workcover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 at [82] it was held that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. It was foreseeable, in my opinion, that a worker located in close proximity to the roller while its engine was running and the park brake not applied, could be at risk. Given the roller was such a heavy piece of machinery and contact with it could result in serious injury or death, which is what occurred here, that is a relevant factor in the assessment of the gravity of the offence.

Existence of simple remedial steps

30 The existence of simple and straightforward remedial steps, which could have been taken by the defendant to avoid risk to safety, is relevant in assessing the seriousness of the offence: see Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. The steps taken by the defendant after the incident demonstrates that there were relatively simple, straightforward steps that could have been taken to avoid the risk, namely, the elimination of any person using a hand pump and diesel, thereby completely removing the need for any person to manually apply diesel to the wheels and modification of the roller by the addition of mats and a scraper to the wheels.

31 Additionally or, in the alternative, it would have been open to the defendant to adopt a procedure whereby the defendant's employees were prevented from undertaking any work to remove asphalt from the tyres of the roller until the roller was properly secured when stationary by ensuring that the engine was switched off, the park brake was engaged and the wheels chocked before the operator left the driver's seat.

Maximum penalty

32 In the context of considering the objective seriousness of the offence it is necessary to consider the maximum penalty. In this case it is $550,000. As it was stated in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048 at [30]-[31]:

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick....

Deterrence

33 The prosecutor submitted that in fixing an appropriate penalty in the present case there was a need for a significant component for general deterrence to send a strong message to those employers engaged in the civil construction industry of the ever-present risks to health and safety of workers when they are required to work in and around moving plant. In respect of specific deterrence, the prosecutor submitted the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following the accident may be relevant to specific deterrence: Capral at [76].

34 For the defendant it was recognised that the consideration of matters of general deterrence forms a relevant part of a consideration of penalty. However that consideration should be considered but should not dominate, the specific, factual and subjective circumstances which apply in each case: Inspector Yeung v Thiess Pty Ltd (No 2) (2004) NSW IRComm 96.

35 In respect of specific deterrence it was submitted for the defendant in this case, that there was little likelihood of a recurrence of what occurred and the objective steps taken by the defendant since the incident, as well as the relevant subjective factors support that. It was further submitted the Court should consider that penalty need not be the driving or the most significant factor to ensure deterrence from the defendant's perspective. Counsel submitted:

The distress sustained by the directors of the defendant and their staff, the recognition of the distress caused to the family of the deceased, and combined with the steps taken since the tragedy are sufficient to satisfy the Court that there is little prospect of any lack of focus on issues of safety by the defendant.

36 There are numerous examples of prosecutions that have come before the Court arising out of workers being killed or injured by coming into contact with a moving vehicle or plant. The interaction of vehicles, plant and workers on a work site is a potentially deadly mix. For example: Inspector Paul Jorgensen v Christopher John O'Keeffe and CJ & SJ O'Keeffe Building Pty Ltd [2004] NSWIRComm 397; Workcover Authority of New South Wales (Inspector Schultz) v Pioneer Road Services Pty Limited [1998] NSWIRComm 479; Workcover Authority of New South Wales (Inspector Gill) v Boral Transport Pty Ltd [2005] NSWIRComm 276; Workcover Authority of New South Wales (Inspector Mauger) v Pioneer Road Services Pty Ltd [1998] NSWIRComm 484; Workcover Authority v Red Lea Chickens [2000] NSWIRComm 203; Workcover Authority of NSW (Inspector Dawson) v Roads and Traffic Authority [1998] NSWIRComm 230; (1998) 82 IR 151; Inspector Andrew Rowe v Roads and Maritime Services of New South Wales [2012] NSWIRComm 43;Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47; Workcover Authority of NSW v C I & D Manufacturing Pty Ltd [1994] NSWIRComm 230; Inspector Ankucic v State of New South Wales (NSW Police Force) [2012] NSWIRComm 135; Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55; Inspector James v Roads and Traffic Authority of New South Wales [2011] NSWIRComm 27; Inspector Templeton v Pavese Citrus Pty Ltd [2004] NSWIRComm 322; and Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145.

37 There is ample basis for including a significant element for general deterrence in the penalty. That is not so in respect of specific deterrence for the reasons submitted by the defendant. Nevertheless, the Full Bench in Capral indicated at [77] that it was unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. This is because where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. I propose to include a small element in the penalty for specific deterrence.

Subjective factors

38 In relation to the guilty plea, having regard to what I said about the utilitarian value of guilty pleas in Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 at [30]-[42]. I consider a discount of 22.5 per cent is appropriate in this case because whilst the guilty plea was entered early it was not at the earliest possible opportunity.

39 Remorse and contrition was a matter raised in the proceedings. There can be no doubt the requirements regarding the showing of remorse in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 have been met. In the course of proceedings I commended the defendant for its initiative regarding the Andrew Maddalena Training Day. This type of initiative may have the effect of showing to other workers how close the spectre of death is in the workplace and how attention to and rigid observance of the employer's health and safety policies and procedures may save their lives.

40 I also accept as a subjective factor in the defendant's favour that it operated for a lengthy period in an inherently dangerous industry and has no prior convictions. The defendant fully cooperated with the investigating authority.

41 I have taken into account the evidence that the defendant is a small family company operating in a tight community on the mid-North Coast New South Wales at Wauchope. It is a contributing member of the community in terms of employment it offers and its participation in community and charitable activities.

Conviction

42 The Court accepts the defendant's guilty plea and the defendant is convicted of the offence charged.

Victim impact statement

43 Mr and Mrs Maddalena, Andrew's parents, asked that the Court read their victim impact statement. Neither person was required for cross-examination and no submissions were made regarding the victim impact statement.

44 Andrew's parents described the impact of their son's death on their health and emotional state and its effect on Andrew's sister, Erin. Both parents now take medication for depression and hypertension. Erin had built a house in Taree but since the loss of her brother she has decided to move away from the town and is "trying to rebuild her life where the memories are not as bad."

45 Andrew's parents described the difficulty they now have sleeping at night, the nightmares, the struggle to go to work, the constant tiredness, the loss of their social life, the change in temperament that has overcome them, how they need to visit their son's grave every week and how desperately they miss their son.

46 In my experience, the effect of Andrew's death on his parents is commonly felt by relatives who have lost someone close to them in a workplace incident. While this might be a common effect, the pain and grief and devastation that strikes parents and other close relatives when someone they love dies so unexpectedly at work is purely personal and I expect no words of comfort or sympathy the Court is able to offer will do much to ease that pain or grief. Whilst the Court is limited in the use that may be made of victim impact statements (see R v Previtera (1997) 94 A Crim R 76; R v Mansour [1999] NSWCCA 180) it does assist this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace.

Penalty

47 Having considered all of the factors relevant to sentencing in this case I have decided the penalty should be $250,000.

Orders

48 The Court makes the following orders:

(1) The defendant, Coastal Asphalt and Civil Constructions Pty Ltd, is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000.

(2) The defendant is fined an amount of $250,000.

(3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court.

(4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed.

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Amendments

18 January 2013 - "Coastal Asphalt Pty Ltd" changed to "Coastal Asphalt and Civil Constructions Pty Ltd"
Amended paragraphs: coversheet

Decision last updated: 18 January 2013