Industrial Relations Commission
New South Wales

Medium Neutral Citation:

Inspector Walker v The Roads and Traffic Authority of New South Wales [2013] NSWIRComm 116

Hearing dates:

11 June 2013

Decision date:

24 December 2013

Jurisdiction:

Industrial Court of NSW

Before:

Backman J

Decision:

The Court makes the following orders:

1. In No. IRC 812 of 2011 the defendant is convicted of the offence.

2. The defendant is fined $175,000 with a moiety to the prosecutor.

3. The defendant is to pay the reasonable costs and disbursements of the prosecutor as agreed and in the absence of agreement as assessed.

Catchwords:

OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 (the Act) - plea of guilty to one charge under s 10(1) of the Act - workers undertaking maintenance work on F3 Freeway when prime mover veered into the eastern shoulder and struck an RTA vehicle which collided with a worker who later died from injuries sustained by the collision - other workers were seriously injured - systems of work in place at time of incident - foreseeability of the risk to safety - measures available to avert the risk - gravity of potential risk to safety - maximum penalty - deterrence - subjective factors - orders

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000

Cases Cited:

Capral Aluminium Limited v WorkCover Authority of NSW (Inspector Mayo-Ramsay) (2000) 99 IR 29
Inspector Hart v Roads and Traffic Authority of NSW [1994] CT 1092 of 1993, 22 September 1994
Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337
Morrison v Powercoal Pty Ltd (2003) 130 IR 364
R v Shankley [2003] NSWCCA 253
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Veen v R (No. 2) (1988) 164 CLR 465
WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd and Another (2000) 95 IR 383

Category:

Principal judgment

Parties:

Inspector Joanne Walker (Prosecutor)
The Roads and Traffic Authority of New South Wales (Defendant)

Representation:

P R McDonald SC with C T Magee of counsel (Prosecutor)
W Thompson of counsel (Defendant)
WorkCover Authority of New South Wales (Prosecutor)
Sparke Helmore Lawyers (Defendant)

File Number(s):

IRC 812 of 2011

Judgment

1The defendant, The Roads and Traffic Authority of New South Wales (now known as Roads and Maritime Services) entered a plea of guilty to an offence under s 10(1) of the Occupational Health and Safety Act 2000 (the Act). The offence concerns an incident that occurred on 10 June 2009 on the eastern shoulder of the south bound lane of the F3 Freeway at Warnervale (the premises) where workers were undertaking maintenance work which included guardrail reflector maintenance, vegetation control and litter collection. A Kenworth B-double prime mover attempting to pass another truck veered into the eastern shoulder and struck an RTA vehicle which then collided with one of the workers who later died from injuries sustained by the collision. Several other workers were seriously injured.

2The charge, brought by way of an amended application for order filed in Court on 11 June 2013, alleges that workers, Steven Eliot, Michael Carr, Glen Craig, Alan Thomas and Barry Stent were at risk to their safety by reason of the defendant's failure to ensure that the premises were safe and without risks to health. Particulars of the risk, set out in the amended charge, allege:

The 'risk' was the risk of injury to persons performing vegetation control and litter collection work and/or persons situated in vehicles on the eastern shoulder of the F3 Freeway, by being struck by a vehicle using the F3 Freeway as a public road.

3The acts and omissions alleged against the defendant are, in summary:

(i) (failing) to undertake an adequate risk assessment in relation to the maintenance work to be performed on the F3 Freeway ... in particular, the RTA failed to identify the risks associated with undertaking the task of vegetation control and litter collection work adjacent to high speed, high volume traffic on the F3 Freeway and determine how the risk could be eliminated or controlled;

(ii) (failing) to conduct work in accordance with the RTA Traffic Control At Work Site Manual (TCWS Manual) (with particular regard to reducing speed limits to 60 km/hr and ensuring "advance warning signs" were in place);

(iii) (failing) to provide necessary information, instruction and supervision for the undertaking of maintenance work.

The defendant's occupational health and safety systems

4According to the Agreed Facts the defendant had documented systems in place at the time of the incident for work being performed by employees of the RTA Division of the NSW Government Services (RTA employees). In addition to the TCWS Manual, the defendant provided:

a. Specific Traffic Control Plans (TCPs) for frequently changing work areas which included the maintenance of shoulders and guardrail reflectors.

b. Each road maintenance crew was required to hold a Tool Box meeting before the commencement of work. This involved a discussion about the work to be done and the risks and control measures.

c. Each road maintenance crew was required to carry out a site specific risk assessment known as 'situational awareness' for the work to be carried out.

d. Safe Work Method Statements (SWMS) including SWMS for Traffic Control, Mowing and Landscape Maintenance.

Risk Assessment

5At the time of the incident the defendant had a generic Risk Assessment and Risk Control Worksheet (Worksheet), although Item 36 of that document dealt specifically with hazards associated with working adjacent to traffic. Risk reduction measures highlighted in relation to these hazards were identified in the document as follows:

- Site specific Traffic Control Plans and Vehicle Movement Plans to be in place - Use of portable traffic signals/traffic controllers - Use of flashing arrows - Trained competent and authorised traffic controllers - High visibility clothing to be warn (sic) at all times

6According to the Agreed Facts, while members of the maintenance crew (WY1) acknowledged that they had seen the Worksheet, they were not aware of how it was to be implemented in relation to the premises. Moreover, the control, "use of flashing arrows", was not put in place. The sole control measure implemented by the maintenance crew consisted of two rotating orange lights on the cabin roof of the RTA truck. No advance warning signals indicating that work was being undertaken or signs requiring a lower speed limit were in place as required by the TCWS Manual.

7At the time the maintenance crew commenced work it was anticipated that the work would be of short duration. However, a series of delays resulted in the crew remaining on site for a longer period. In these circumstances the crew was required to complete a Situational Awareness Record Sheet which was available whenever conditions changed. This was not done. In any event, as the prosecution pointed out, the document was deficient in a number of respects. It only provided for a risk assessment to be undertaken at "start shift" and "mid shift" and did not take into account the possibility that the crew could be located at a number of different sites throughout their shift and it did not assess the different risks that might arise from this type of intermittent work.

8On 10 June 2009, the maintenance crew attended a toolbox safety meeting at the District Works Centre. Mr Craig said that he completed the Toolbox Record Sheet at the meeting but it was burnt when the RTA vehicle involved in the collision caught fire. Other risk documentation, according to Mr Craig, was also burnt as a result of the fire.

TCWS Manual

9Under the defendant's safety systems it was mandatory for the TCWS Manual to be used at road and bridge work sites. The TCWS Manual contained the following direction:

Specific situations involving "intermittent work" and working adjacent to traffic,- work is classified as intermittent "if it is undertaken without obstructing traffic and without compromising the safety of workers and may be either planned or unplanned and may involve frequently changing work sites; it includes the work being performed at the time of the incident (section 9); requirements in relation to the speed of traffic (sections 8 and 9).

10The work being performed by the crew on the day of the incident fell within the classification of intermittent work. In respect of frequently changing work sites, section 9.1.8 of the Manual set out a number of requirements for frequently changing work crews, including a requirement that signs up to 2 km in advance of each work position or 1 km of moving plant should be displayed. At the time of the incident there were no "advance warning signs" in place to warn oncoming traffic that roadwork was occurring. According to the Agreed Facts, Mr Carr and Mr Stent did not use "advance warning signs" when performing small jobs, moving from site to site. Rather the crew would rely upon the sign on the base of the truck and the flashing warning lights on the top of the truck. Clearly this was not enough advance warning. The driver of the Kenworth B-double prime mover, Mr Heginbotham, said he did not observe any such signage on the day of the incident. A number of other drivers driving behind Mr Heginbotham's truck said they did not observe any advance signage, nor were they aware that the RTA truck was parked on the shoulder of the F3 Freeway.

11The passenger side of the RTA truck was located next to a steel armco guardrailing which bordered the F3 Freeway shoulder on the eastern side. Mr Eliot was working on the shoulder side of the guardrail within 3 metres of the traffic when he was struck by the RTA vehicle and killed as a result of the collision.

12Section 8.2 of the TCWS Manual provided for specific requirements in relation to road work speed zones and the control of speed of traffic. Section 8.2.3 required that where workers were on foot within 1.2 to 3 metres of traffic with no intervening physical barrier, the speed limit of passing traffic should be reduced to 60 km per hour. The speed limit at the incident site was 110 km per hour. According to the Agreed Facts the speed limit was not reduced in accordance with the Manual.

13The defendant's Wyong Depot had developed a number of TCPs for road maintenance work. It appears that two TCPs may have been applicable to the task being performed by the maintenance crew on the day of the incident. TCP HRSM - S - 189(a) was applicable to frequently changing work areas and required the implementation of a number of safety measures which included the following:

i. Everyone is to have an escape route; and

ii. The work vehicle is to:

have rotating amber lights operating;
be positioned so that the lane widths are not restricted; and
have sight distance for approaching traffic of greater than 250 m (for speeds of greater than 60 kms per hour).

14Under section 4 of the TCWS Manual, the team leader of the maintenance crew was required to select and implement an appropriate TCP for the work to be conducted. However, on the day of the incident the team leader for the WY1 crew was absent and the crew failed to give adequate consideration to the implementation of TCP HRSM - S - 189(a). Consequently, a number of measures specified under that TCP were not implemented.

15The second TCP which could have been applied by the crew on the day of the incident was TCP HRSM - S - 365(a). That TCP was applicable to 2 and 3 lane situations including closure of shoulders on the Freeway. According to the Agreed Facts the WY1 crew failed to give any consideration to the implementation of the second TCP.

Instruction, Information and Supervision

16A Team Leader was responsible for providing each maintenance crew with supervision while undertaking maintenance work. Steve Breznika was the Team Leader of the WY1 Maintenance Crew, however, as previously noted he was absent on the day of the incident, leaving the crew without direct supervision. According to the Agreed Facts Mr Breznika instructed the crew on the previous day to continue the following day with the task of guardrail reflector maintenance. No Team Leader was assigned to the crew on the day of the incident. As a result the crew were without adequate instructions and information about how the task was to be undertaken or how the site could and should be made safe.

Conclusions with regard to the defendant's system of safety

17The Court agrees with the defendant that it had in place at the time of the offence systems of safety that included risk assessment of the work carried out by the WY1 Maintenance Crew. It also made available risk control worksheets for Team Leaders to utilise for completion of work. According to Stephen John Barton, General Manager, Work Health and Safety, employed by the defendant, each member of the WY1 Maintenance Crew had many years of experience working for the defendant performing work of a similar type to the work being performed at the time of the incident. Each crew member had undertaken ongoing training in various safety initiatives and they each held a yellow traffic control ticket which meant they had been trained to work in and around traffic. They had also received training in relation to the defendant's TCWS Manual.

18These matters recognise that the defendant had safety systems in place which operate to mitigate the objective seriousness of the offence. On the other hand the Agreed Facts reveal multiple failures by the WY1 Maintenance Crew to implement safety measures provided in the risk assessment documentation. Moreover, significant aspects of the risk assessment documentation were deficient in failing to identify critical safety features. For example, the Situational Awareness Record Sheet did not take into account the possibility that the crew could be at different locations throughout a shift and it did not assess the risks associated with intermittent work. The Court agrees with the prosecution's submissions that the failure to allocate a qualified Team Leader to the WY1 Maintenance Crew on the day of the incident contributed to the risk due to the lack of knowledge on the part of the crew members of the requirements to ensure that the incident site was safe, including the implementation of applicable work methods and traffic control measures.

Foreseeability of the risk to safety

19The risk to safety was both obvious and foreseeable. The crew was working on foot in close proximity to vehicles beside the Freeway. At the time of the incident they were in close proximity to high volume traffic travelling at high speeds, without any adequate implementation of appropriate safety measures to protect them against risks to safety, notably the danger of a vehicle colliding with the RTA truck or with one of the workers in the event it strayed out of the lane. Moreover, the defendant was aware of the risks associated with the work, a conclusion consistent with the evidence that it had documented systems dealing specifically with those risks.

Measures available to avert the risk

20The measures pleaded in the charge could have been implemented by the defendant in order to eliminate or control the risk. The measures taken by the defendant following the incident readily attest to the ease with which the defendant could have put in place appropriate steps and thereby avoided the risk. These measures have been set out in the Agreed Facts and in Mr Barton's affidavit. The measures set out in the Agreed Facts, extracted below, sufficiently demonstrate this point:

Immediately following the Incident, a moratorium was imposed on all vegetation control work on the side of the F3 Freeway.

Following the Incident the RTA undertook a broad ranging review of its systems to reduce or eliminate the risk of similar Incidents.

This has included establishing a working party to consider how the risk of working near high volume and high-speed traffic can be reduced. The working party:

a. reviewed the current OHS standards, including standards relating to road shoulder width;

b. commenced a review of the use of variable message boards along the roads and how the RTA uses truck mounted attenuators; and

c. consulted with Queensland Roads to compare systems of work.

The RTA has also conducted a review of the Road and Fleet Service Division and provided refresher training to employees. Amongst other things the review involved examining the situational awareness risk assessment, retraining staff to ensure they can identify and deal with risks on the job, and reviewing all maintenance activities to determine what is essential and non-essential work.

Further, the RTA specifically examined the Incident site location and identified what immediate engineering controls could be implemented. Consideration was given to matters including:

a. whether more parking bays should be built in the area;

b. whether more message boards and variable message signs should be installed in that part of the Freeway; and

c. whether the shoulder width in that area should be increased.

After the incident, the RTA also began [trialling] the use of mobile speed limits for shoulder work and the use of additional escort vehicles.

Furthermore the RTA considered both static and mobile lane closures as a means to enable should works to be completed and have instructed maintenance crews not to conduct work from the shoulder of the road unless the speed limit is reduced or the work is being performed behind a barrier.

Gravity of the potential risk to safety

21A further objective feature concerns the likely or probable consequences of the relevant risk to safety. An aspect of the factor, applicable here, is where the occurrence of death or serious injury may manifest the degree of seriousness of the risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium Limited v WorkCover Authority of NSW (Inspector Mayo-Ramsay) (2000) 99 IR 29 at 60 at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32].

22Section 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) is also relevant. The section requires a sentencing court to take into account as an aggravating factor whether the offence, "involved a grave risk of death to another person or persons". The prosecution submitted that the risk of significant injury or death arising from the collision between the RTA truck and the prime mover in the circumstances outlined above was not a remote possibility. In my view the risk of significant injury was a distinct, even likely occurrence. The crew was working in proximity to high volume traffic travelling at high speeds, without any appropriate safety measures in place to ensure their safety. Given these facts the risk to the safety of the crew could be said to have manifested itself in the fatal injury to Mr Eliot and in the serious injuries sustained by other members of the WY1 Maintenance Crew. Section 21A(2)(ib) therefore has application to these proceedings.

Conclusion with regard to objective seriousness

23Given the material underpinning the objective factors set out above, the Court concludes that the offence was objectively serious.

Maximum penalty

24The defendant has prior convictions and therefore faces a maximum penalty of $825,000.

Deterrence

25The facts here demonstrate an obvious need for the application of general deterrence in the sentencing process. The interaction of workers working in the vicinity of moving vehicles and mobile plant gives rise to a risk of serious injuries including fatalities, when safety is not a priority. Accordingly, the sentence to be imposed on the defendant should reflect the need to ensure that employers take a rigorous approach to ensuring that known hazards which may arise from the interaction of workers and vehicles are adequately addressed.

26A component of the penalty should also reflect the need to apply the principle of specific deterrence, taking into account the fact that the defendant had put in place measures to address the general risks to safety and had documented systems that were intended to address the requirement for traffic control in relation to work sites, although the measures it had in place proved inadequate. It is also relevant that the defendant subsequently took steps to address the failings that led to the creation of the risk.

27The prosecution also relies upon the defendant's prior convictions as a matter that should be taken into account when determining the weight to be given to specific deterrence. According to the prosecution, a large number of the defendant's prior convictions involve workers affiliated with the defendant being struck by vehicles and mobile plant while undertaking road work.

28The defendant in submissions acknowledged the application of specific deterrence on sentence, given its ongoing statutory role in relation to roads and waterways. At the same time the defendant contended that the Court is entitled to have regard to its comprehensive response to the incident and the measures it has subsequently implemented. I have already taken this latter matter into account in the defendant's favour in determining the weight to be given to specific deterrence.

29Section 21A(2)(d) of the CSP Act provides that a record of prior convictions may be taken into account as an aggravating feature. According to the prosecution an earlier conviction may only be an aggravating feature in accordance with the considerations in Veen v R (No. 2) (1988) 164 CLR 465.

30In the well-known passage in Veen (No. 2) (at 477 - 478), Mason CJ, Brennan, Dawson and Toohey JJ said:

There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [35] . The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

31In R v Shankley [2003] NSWCCA 253 Howie J (at [31]) (with whom Greg James J and Smith A.J agreed), in commenting on the passage extracted above from Veen (No. 2), said:

The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that "retribution, deterrence and protection of society may indicate a more severe sentence is warranted".

32As Veen (No. 2) demonstrates, consistent with the principle of proportionality, a prior criminal record, "cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence".

33Although the prosecution submitted that a large number of the defendant's prior convictions involved non-employees being struck by vehicles while undertaking work on roads, it acknowledged that only one prosecution was of a similar nature to the present incident. The decision in relation to that prosecution is recorded in Inspector Hart v Roads and Traffic Authority of NSW [1994] CT 1092 of 1993, 22 September 1994. The prosecution also accepted that the defendant's record must be viewed in the context of the size and scope of its operations and the length of time it has been operating.

34Given these concessions, as well as the fact that the only prosecution said to be similar to the present prosecution is now some 20 years old, I am disinclined to treat the defendant's prior convictions as an aggravating feature falling within s 21A(2)(d) of the CSP Act.

Subjective features

35The defendant's prior convictions disentitles it to leniency normally extended to first time offenders, or persons otherwise not adversely recorded.

36The actions taken by the defendant following the incident to address matters of safety have been set out earlier. They will be taken into account in mitigation of the penalty to be imposed. Mr Barton in his affidavit also outlined a number of post incident measures implemented by the defendant. Most of the measures have already been set out above. In addition Mr Barton said that on 2 July 2009, the defendant issued a safety alert to all staff and contractors entitled, "Working Near Traffic - Intermittent and Mobile Workers". The defendant also purchased eight additional Truck Mounted Attenuation (TMA) vehicles for use by the maintenance crews. According to Mr Barton TMAs are trucks equipped with cushions designed to create a buffer between workers and traffic and absorb the potential impact of errant vehicles. The defendant anticipated that the TMAs will assist in reducing the risk of a vehicle colliding with an RMS vehicle and/or workers. The defendant has not been able to locate a TMA or other vehicle which could absorb the impact of a heavy vehicle such as the truck driven by Mr Heginbotham at the time of the incident.

37These post incident measures are also relevant to demonstrate contrition and remorse on the part of the defendant pursuant to s 21A(3)(i) of the CSP Act. In addition Mr Barton, on behalf of the defendant, accepted responsibility for the incident and expressed on behalf of the defendant sincere regret and remorse. The defendant also extended its apologies to the workers involved in the incident as well as to their families and friends.

38Mr Barton also relied upon the following matters as demonstrating the defendant's contrition and remorse:

Early plea of guilty entered to the Amended Application for Order;

Assistance provided by the RMS to the employees including its offer of counselling to all members of the Maintenance Crew and their families;

Bridge named after Mr Eliot at the Incident site;

Contribution to the funeral expenses for Mr Eliot;

Attendance at Mr Eliot's funeral by RMS employees, supervisors and managers including the Hunter Road Services Manager and RFS Group General Manager;

Plaque presented to Mr Eliot's mother;

Plaque erected at the Incident Site by RMS;

Plaque erected at the Wyong Depot of the Hunter RFS by RMS;

The ongoing dedication of resources, time and commitment on health and safety through the RMS' management systems; and

The ongoing efforts to assist financially and otherwise the other injured members of the Maintenance Crew and assisting them in returning to the same or alternate positions (see below).

39The defendant also co-operated with WorkCover during its investigation into the incident.

40The defendant also displayed good corporate citizenship, investing significant amounts of time and financial support for community programmes, educational initiatives and charitable organisations across Australia. During the 2010 - 2011 financial year the defendant provided scholarships totalling $1,910,839. In the following two financial years the defendant provided scholarships totalling $610,000 and $356,860 respectively. The defendant has also received various awards and acknowledgements for its achievements in the area of occupational health and safety.

41The defendant also sought to assist the rehabilitation and return to work of the workers who were injured at the time of the incident.

42All these matters will be taken into account in mitigation of penalty.

43The defendant's plea of guilty requires some short consideration. A history of the proceedings has conveniently been set out by the prosecution in written submissions. That history reveals the following sequence of events:

The Application for Order was filed on 7 June 2011.

RMS filed a notice of motion in which it sought the dismissal of the charge on the ground that the particulars of the charge could not establish the elements of the offence. This issue was then referred to a Full Bench of the Court as a question of law pursuant to s5AE of the Criminal Appeal Act and s196 of the Industrial Relations Act. On 14 September 2012 the Full Bench declined to answer the question.

On 20 February 2013, the Defendant entered a plea of guilty to the charge set out in the Application for Order, but advised the Court that a number of the particulars were in dispute.

On 11 June 2013, the prosecutor filed an amended charge in the proceedings against the RMS. The Defendant indicated that it admitted the particulars contained in the amended charge.

44According to the defendant the amendments to the charge were significant enough to warrant the Court viewing the plea as having been, "entered at an early time if not the earliest time". The defendant has not sought to direct the Court's attention to what amendments it contends are "significant". In the absence of any developed submission on the point, the Court is not prepared to consider this matter further. In any event, in oral submissions the defendant conceded that the plea, "may not be the earliest time but I don't put it any higher than that".

45According to the prosecution the Court should have regard to the utilitarian value of the guilty plea however the defendant is not entitled to the "full discount of 25 per cent", as it did not enter the plea of guilty at the earliest opportunity.

46I note there is no authority of which this Court is aware for a proposition that the "full discount" that may be awarded for the utilitarian value of a plea of guilty is 25 per cent. R v Thomson; R v Houlton (2000) 49 NSWLR 383, the guideline judgment applicable to pleas of guilty entered to charges in New South Wales, is silent on this particular issue. However, it seems to me in view of the history of the Court proceedings that the plea of guilty was not entered at the earliest opportunity. Accordingly, I am prepared to award a discount of 20 per cent in recognition of the utilitarian value of the plea.

47The Court makes the following orders: