3
[Extract from Queensland Government Industrial Gazette,
dated 20 October, 2006, Vol. 183, No. 12, pages 783-785]
INDUSTRIAL COURT OF QUEENSLAND
Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate
Adam John Low AND Swanny's Industries Pty Ltd (C/2006/48)
PRESIDENT HALL / 11 October 2006DECISION
The respondent, a corporation under the law, was charged with a breach of s. 24 of the Workplace Health and Safety Act 1995. The obligation said to be breached was that imposed by s. 28(3). The risk particularised was the risk of death or injury, including the risk of fatal crush injuries to Gregory Raymond Wallace. The source of the risk was identified as the use of an overhead crane in lifting a fibreglass mould. A circumstance of aggravation was pleaded, viz. the death of Gregory Raymond Wallace. There was a plea of guilty. The complainant did not did not seek the recording of a conviction and no conviction was recorded. No criticism is made (nor could there be criticism) about the decision not to record a conviction. The appeal is confined to the quantum of the fine imposed.
The core of the factual matrix appears sufficiently from the statement of facts handed to the Industrial Magistrate. The statement asserted (emphasis added to paragraph 26):
"Background
6. The defendant is a registered Australian proprietary company.
7. The defendant's undertaking is that of manufacturing and supplying marine craft components, including fibreglass hard-tops, mainly to RIVIERIA MARINE (RIVIERA).
8. As part of its undertaking the defendant would use a number of moulds provided by RIVIERA, to manufacture particular specification fibreglass hard-tops.
9. RIVIERA did not supply any lifting equipment for the moulds.
10. The defendant engaged numerous subcontractors, who also perform work at 23 Activity Crescent Ernest, the assist in the undertaking. Different sections of the factory were leased out to these subcontractors who would in turn employ their own staff to work in these different sections.
11. One of the subcontractors, Archibald RANKIN (RANKIN), was the employer of WALLACE at the time of the incident.
12. WALLACE was 18 years of age at the time of this incident.
Facts
13. On the morning of 20th January 2005 WALLACE arrived at work sometime between 4.30am and 5.30am. Shortly after arriving for work RANKIN instructed WALLACE to move a particular fibreglass mould using an overhead crane. The mould which weighed 1040 kg was to be placed on top of an adjacent internal toilet block.
14. The way in which the mould was moved, was by WALLACE using a hand-held pendant control to operate the crane which would pick up the mould with the use of ropes which were permanently attached to the mould. The ropes were the only attachment ever used for the lifting of this particular mould.
15. The mould involved with this incident had been supplied to the defendant in August 2004 and was designed to fit on top of the fly bridge for the Riviera 33 Fly Bridge Cruiser.
16. This mould was delivered by RIVIERA in two halves and did not come with any type of lifting slings, ropes or chains. There were several different sized hard-top moulds at the defendant's workplace, but this particular mould was the smallest.
17. Craig CUNNINGHAM, an employee of the defendant, is the last known person to have seen WALLACE alive. CUNNINGHAM who was operating a forklift nearby, observed WALLACE holding the pendant control for the overhead crane in his hand. He last observed the mould to be no more than 12 inches off the ground.
18. WALLACE was not being directly supervised by anyone at the time of the incident.
19. A short time later a loud band was heard to come from the hard-top mould area where WALLACE was last seen working. Various workers ran over to the area where the noise came from and observed that WALLACE was pinned underneath the hard-top mould.
The investigation revealed:
20. The permanently attached white rope at one end of the hard-top mould failed during the lift, causing the mould to fall and strike WALLACE, before pinning him to the floor.
21. The rope being used to lift the mould had been damaged (abraded) some time prior to the incident such that it would have reduced the load bearing capacity of the rope.
22. The mould involved in the incidents, known as the '33' was the smallest mould the defendant used at the workplace.
23. The '33' hard-top mould was the only mould in the workplace for which chains were not used for lifting purposes.
24. The defendant was directly responsible for sourcing the hard-top mould involved in the incident from RIVIERA. The defendant exerted influence and a level of control over RANKIN in relation to the use of the mould in the hard-top section at the workplace.
25. The Director of the defendant would regularly come into the hard-top mould area and provide input and supervision to workers and occasionally provide assistance to workers in this area.
26. There is evidence, although unable to be confirmed at record of interview, that the issue of using rope to lift mould had been identified by the Defendant prior to the incident, as a practice preferably to be replaced by the used of chains.
27. The defendant was responsible for engaging EILBECK CRANES to conduct maintenance and servicing of the overhead crane involved in the incident.
28. The 'rope attachment' method adopted for lifting the mould had a far greater potential to fail.".
I have taken the liberty of emphasising paragraph 26 because the matters there referred to were taken somewhat further in oral submissions to the Industrial Magistrate. From those submissions it emerged that at an unspecified time between November 2004 and Christmas of the same year, a director of the respondent, viz. Mr Geoff Swan, and Mr Rankin had tried to put chains through the holes in the "hard-top" mould but were unsuccessful because the chains would not fit. There was evidence that Mr Swan had been heard to tell Mr Rankin that he (Mr Swan) proposed to obtain some smaller chains to use on the mould, and that he (Mr Rankin) should not make a hard-top using the mould until a chain of the correct size had been obtained. It emerged also that Mr Swan had subsequently directed a worker (Mr Simon Hollandale) to remove chains from another mould and put them inside the door where the "hard-top" mould was situated, and that the worker carried out the direction but had not at any time seen chains attached to the mould. The inference is that the respondent (by its director) was aware that use of the ropes posed a risk that the mould would fall to the ground, perhaps being damaged and perhaps injuring a worker, that the respondent had identified that the substitution of chains for the ropes would extinguish the risk, that the respondent had sought to exercise its influence to ensure that the hard-top mould was not shifted by the pendant crane until chains had been substituted for the ropes, but that the respondent had failed in the execution of the remedial task which it had accepted. In my view, the Industrial Magistrate's summary which in fairness was essayed on a busy day and without the opportunity to ponder over the transcript and the statement of facts - that "…the defendant company…supplied chains for the moulds to be used and told Mr Rankin, another employer involved in these proceedings, that those chains should be used…" seems to be unduly benign. I make plain that I do not couple the assertion that Mr Swan told Mr Rankin not to use the mould until the chains were fitted with the evidence about the structure of the respondent's business to conclude that the respondent had control of the site and of those on it including Mr Rankin. To take that step would be to substitute speculation for inference. Further, it would be an inference inconsistent with paragraph 24 of the statement of facts. However, the circumstance that Mr Swan was telling Mr Rankin not to use the ropes to move the mould does support the conclusion that Mr Swan was aware that the respondent did have some measure of influence to exert over Mr Rankin (compare paragraph 24). Given that the respondent held the hard-top mould as a bailee for a customer, given that the pendant crane was the respondent's pendant crane, and given that the respondent was the rainmaker bringing on site the work upon which everyone relied, it is not in the least surprising that Mr Swan had such a view.
The fine imposed by the Industrial Magistrate was $30,000. It is contended that the fine is so manifestly inadequate that, within the principle enunciated in House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ, one should infer that in an unexplained way the sentencing discretion of the Industrial Magistrate has miscarried. The submission must succeed. The objective of the Workplace Health and Safety Act 1995 is to prevent a person's death, injury or illness being caused by a workplace, by work activities or by specified high risk plant, s. 7(1). The objective is sought to be achieved by preventing or minimising a person's exposure to the risk of death, injury or illness caused by a workplace, by work activities or by specified high risk plant, s. 7(2). The obligations imposed by Part 3 are directed to establishing the framework for preventing or minimising exposure to risk, s. 7(3). Section 24 seeks to underpin the obligations by imposing quite significant penalties which, in the case of a corporation, are subject to a multiplier of five, s. 181B of the Penalties and Sentences Act 1992. Where there are aggravating circumstances, i.e. death or actual injury, the penalty is very much increased; not surprisingly because the occurrence of death, injury or illness, by definition, establishes that workplace health and safety has not been ensured, s. 22. In particular, when the circumstance of aggravation is death and the defendant is a corporation, the maximum penalty which is available to a sentencing Industrial Magistrate is inflated to $375,000. Against that background, a defendant who has breached an obligation and has thereby caused a workman to perish would be unduly optimistic to anticipate walking from a court room burdened with a $30,000 fine in all but exceptional circumstances. Whilst recognising the moderating force of the Penalties and Sentences Act 1992, it seems to me that the Industrial Magistrate was unduly lenient. It must be borne in mind that defendants are not penalised for killing or injuring workmen. Defendants are penalised in order that workmen will not be killed or injured; compare Alcatel Australia Limited v WorkCover Authority of New South Wales (1996) 70 IR 99 at 106.
It is contended by the appellant that, in any event, the error of principle is identifiable. The appellant points not to the decision of the Industrial Magistrate, but to an exchange during the course of the sentencing hearing about differentiation in sentence whereat the Industrial Magistrate observed:
"I mean, it is a fairly common practice, Mr Potts, where somebody who's involved in an armed robbery, for example, he gets a heavier sentence than the person who drives the getaway car…".
The respondent and Mr Rankin were not co-offenders. Each of the respondent and Mr Rankin had different opportunities to secure the health and safety of workers at work. Whilst there is some overlap between the obligations borne by the respondent and Mr Rankin, the obligations are distinct, compare Newman v JBL Applicators Pty Ltd (2003) 172 QGIG 1096 at 1097. If indeed the Industrial Magistrate did approach the sentencing process on the basis (perhaps erroneously) attributed to him, His Honour would have fallen into error. Whilst I accept that blameworthiness is always a relevant factor, it is the blameworthiness of the defendant with which the Industrial Magistrate is properly concerned. It is a fundamentally flawed approach to distribute the blame over all of the persons involved as if one were dealing with questions of contribution between tortfeasors and/or contributory negligence. One has to accept that all of those against whom complaints are laid as a result of a workplace incident will rarely come before an Industrial Magistrate for sentencing at or about the same time. Inevitably, there will be cases in which considerations of consistency in sentencing will inhibit the discretion of a sentencing Industrial Magistrate by the time the last offender is sentenced. But that is not the starting point of the journey.
Before the Industrial Magistrate, the appellant contended for a penalty within the range $60,000 to $70,000. I have some difficultly with the range, derived as it is from post-mitigation sentences imposed in quite dissimilar cases. However, I accept that the respondent, who presumably thought that the proceedings before the Industrial Magistrate had concluded the matter, would be entitled to feel aggrieved if not only is the decision of the Industrial Magistrate set aside but the sentencing process is conducted on a basis not previously contemplated. Consistently with the approach taken at first instance, I therefore accept the range of $60,000 to $70,000. There was an early plea. The respondent is a first offender. Post the death of Mr Wallace remedial steps were taken. Whilst the respondent declined to participate in an interview, there seems otherwise to have been cooperation with the authorities. I accept that the sentence should be at the lower end of the range. The materials put in by the respondent as to its financial circumstances do not establish that the imposition of the fine at the lower end of the range would be an act of oppression. Rather, the financial materials show that the respondent has the capacity over time to pay a modest fine.