Coggins v Far Northern Hardware Pty Ltd [2011] ICQ 5

CITATION: Dean Allan Coggins AND Far Northern Hardware Pty Ltd (C/2010/63) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate Dean Allan Coggins AND Far Northern Hardware Pty Ltd (C/2010/63) PRESIDENT HALL 15 March 2011 DECISION [1] Far Northern Hardware Pty Ltd (the Respondent) was charged with one offence against s. 24 of the Workplace Health and Safety Act 1995 (the Act). The obligation said not to have been discharged was that at s. 28(1) of the Act. A circumstance of aggravation was pleaded, viz., that grievous bodily harm injuries to Phillip Morris resulted from the breach. As amended on 6 October 2010 (the date of hearing in the Industrial Magistrates Court at Cairns), the particulars were: "Particulars It is alleged that the defendant's workers or other persons were not free from risk to their health and safety arising out of the conduct of its business or undertaking [s. 28(2)]. Worker: Phillip MORRIS Workplace: 15 Mt Milman Drive, Smithfield, Qld 4878 Business or undertaking: Supply and sale of hardware materials Risk: The risk is the risk of injury, including the risk of death or grievous bodily harm injuries to Phillip MORRIS Hazard(s): The source of the risk emanates from: (1) The system of work adopted to retrieve material dense fibre (MDF) sheeting from storage racks using plant namely, a Nissan forklift; and/or ...". [2] The Respondent pleaded guilty. The plea was conceded to have been prompt. The matter proceeded on the basis of an agreed statement of facts: "STATEMENT OF AGREED FACTS The Complaint 1. (a) The Defendant, Far Northern Hardware Pty Ltd (CAN 89 053 174 014) being a person who conducted a business or undertaking under section 28 of the Workplace Health and Safety Act 1995 (the Act), is charged with an offence under section 24 of the said Act. (b) It is alleged that on the 23 November 2009 at a workplace situated at 15 Mt Milman Drive, Smithfield, the Defendant, being upon whom a workplace health and safety obligation prescribed by section 28(1) of the WHS Act is imposed, did fail to discharged the obligation contrary to section 24 of the WHS Act. Background Information 2. The Defendant: (a) is a company incorporated under the Corporations Act 2001 (Cth) with its registered address and principal place of business at Level 2, 21 Stokes Street Townsville, QLD 4810 and its ACN is 073 551 121. (b) FAR NORTHERN HARDWARE Pty Ltd is a company first registered in Queensland on the 4 th of April 1996. The sole director of the company is Kevin Francis MALONE. -- 1 of 4 -- 2 (c) FAR NORTHERN HARDWARE Pty Ltd trades as Smithfield Mitre 10 supplying various types of building material and tools to customers. (d) The Smithfield Mitre 10 premises are located at 15 Mt Milman Drive, Smithfield. (e) Anne MALONE is the manager of Smithfield Mitre 10. (f) Far Northern Hardware employs a number of workers within its workplace and operates two (2) forklifts, on (1) Nissan and one (1) Toyota. The Toyota forklift was being serviced at the time of the incident. The Relevant Plant 3. The item of plant being used in this incident was a Nissan forklift and was operated by a person Robert BROWN. 4. There appeared not to be any thing untoward about the condition of the forklift except that BROWN (forklift operator) did not like driving it due to difficulty when viewing the load. 5. The forklift had been maintained in a serviceable condition. The Incident 6. On the day of the incident both MORRIS (injured worker) and BROWN (forklift operator) commenced work at approximately 7.00 am, their usual starting time. 7. First thing that morning BROWN was instructed by Greg CARLESS (Deliveries foreman) to use the Nissan forklift to lift down some MDF sheeting for a customer. 8. Hardware items are stored in aisles of racking in the 'trade's area' at the rear of the Smithfield Mitre 10 site. 9. Vehicles can drive through the trade's area, with the retail hardware store and trades area service desk being on the right hand side and the storage area for product on the left had side as vehicles drive through the building. 10. The MDF sheeting is stored on the top left hand shelf in the fourth bay of shelves at the far end of aisle 2. There are three (3) bars on this top rack, with the sheeting sitting on top of these bars. The bars are at each end and in the middle of the rack, running from the front to the back of the rack. 11. Aisle 2 is four-and-a-half (4.5) metres wide (measured from the metal edge protectors at the corners of the shelving at the start of the aisles) and approximately eleven-and-a-half (11.5) metres long. There are four sections of shelves, each being 2.845 metres wide. The distance between the top shelf of the fourth bay of shelves and the ground is 3.42 metres. 12. Items were stacked and stored on the concrete at the rear of aisle 2 on the morning of the 23rd of November 2009. 13. The only forklift available for BROWN to use that morning was the Nissan forklift. 14. BROWN drove the forklift down to the end of aisle 2 to collect the MDF sheeting. 15. BROWN did not manoeuvre the forklift in straight to the shelving, and so when he lifted the partial pack of MDF sheeting he did not have the load 'dead centre of the pack'. 16. MORRIS said 'both Gordon, the customer, and I told Bob to go back out and do it again, but he said he wanted to try and lift it. Gordon and I ran back as we both considered the situation dangerous'. 17. BROWN lifted the load, backed the forklift out a short distance, in a straight line, and then lowered the load 'to about waist height' (BROWN) or '2 feet off the ground' (MORRIS). 18. The MDF was not stored on a pallet. 19. Gordon (the customer) and MORRIS were standing near the end of aisle 2, in the vicinity of the forklift, by this time. -- 2 of 4 -- 3 20. The engine of the forklift was still running. 21. Gordon picked up the top sheet of MDF and turned aware from the forklift to carry the sheet to his vehicle. 22. BROWN states 'pretty much as I stopped, Gordon grabbed the first sheet and pulled it. I could see the load start to wobble. 23. BROWN says he 'called out to Phil [MORRIS] 'watch out it might tip up as you slide' (or words to that effect'. 24. MORRIS lifted the next sheet of MDF. He had his 'arms stretched wide to hold the sheet, so could not see the rest of the pack of MDF. Next thing I heard Bob yell out to me'. 25. MORRIS says he 'felt a bang against my right leg as the other sheets of MDF fell against my leg. It slipped down my leg and stopped at my ankle. The weight of it pushed my right ankle around. I had just turned to walk away'. 26. When he pulled his leg out from the pile of MDF MORRIS 'did not think there was any serious damage'. His leg was iced and first aid provided at the workplace prior to him being driven to his home. 27. The incident occurred at approximately 7.10 am - 7.15 am. Injuries Sustained 28. Following the incident MORRIS received first aid at the workplace before being sent home. After arriving home MORRIS attended his doctor to have the ankle X-rayed. This X-ray revealed a fracture of his right ankle. MORRIS was taken to Cairns Base Hospital where he was kept overnight, prior to undergoing surgery the following day to have two (2) pins inserted in his right ankle. This in law amounts to Grievous Bodily Harm. 29. MORRIS has received medical advice that the pins will permanently remain in his ankle. Failures 30. The hazard requiring management in this case was the system of work adopted to retrieve material, dense fibre (MDF) sheeting, from storage racks using plant namely, a Nissan forklift; 31. The risk that may have resulted from the hazard was the risk of serious bodily injury to workers at the workplace, including the risk of grievous bodily harm to Phillip MORRIS. Penalty 32. In this instant the maximum penalty for a breach of the Workplace Health and Safety Act 1995, Section 24(1)(b) would amount to $500,000.00. Other Matters Relevant to Penalty 33. Circumstances for consideration are as follows; The Obligation Holder did not take part in a Record of Interview. The Obligation Holder has no previous convictions recorded. There is nothing to suggest that the defendant is not a good corporate citizen. The defendant entered an early plea.". [3] The Industrial Magistrate delivered a reserved decision on 14 October 2010. The Respondent was convicted. No conviction was recorded. There is no appeal about that. A fine of $20,000 was imposed and the Respondent was ordered to pay investigation and professional costs totally $4,820.60. There is no appeal about the costs order. The Appeal is confined to the quantum of the fine. -- 3 of 4 -- 4 [4] Counsel for the Appellant very properly concedes that this Court should interfere with an Industrial Magistrate's exercise of discretion in fixing the quantum of a fine only if an error has been made as to the law or the facts if the Industrial Magistrate acted upon a wrong principle, if the Industrial Magistrate ignored a material consideration, or if the outcome is so plainly unjust as to be explicable only on the basis of unidentified error; compare House v The King1 per Dixon J, Evatt and McTiernan JJ and Harris v The Queen2 per Dixon CJ, Fullagar, Kitto and Taylor JJ. However, Counsel for the Appellant forcefully contends that the outcome and the reasoning are indicative of error. [5] On any view, $20,000 is a modest fine where breach of a statute about health and safety has resulted in grievous bodily harm. One must recognise the Legislature has nominated such a consequence as an aggravating factor. The criticism of the quantum of the fine is supported also by the consideration that it is the effect of s. 24 of the Act and s. 181B of the Penalties and Sentences Act 1992 that the maximum fine available was $500,000. [6] For reasons developed in Waltham v Transfield Services (Australia) Pty Ltd3 and which I do not now repeat, the number of decisions fixing post-mitigation fines in the presence of a circumstance of aggravation is too limited to enable development of a true tariff. However, there is a cluster of cases involving lower level grievous bodily harm with similar mitigating factors and similar elements of blame falling within the range of $30,000 to $40,000. Here the injury and the mitigating factors, viz., no previous conviction, prompt plea of guilty and co-operation with authorities*, remorse, support of the injured employee and post-incident remedial action, suggest that this case belongs within the range. [*The Respondent, acting on legal advice declined to participate in an interview. No issue is raised about that.] [7] I quite accept the submission of counsel for the Appellant that it is the effect of the 2009 amendment of s. 5 of the Penalties and Sentences Act 1992 that the sentencing range, which was $0 to $375,000 when the cluster of cases developed, is now $0 to $500,000. It is apparent from the Explanatory Note to the Penalties and Sentences and Other Acts Amendment Bill 2008 that the purpose of the amendment was to update fines to recognise movements in the Consumer Price Index since 1995. However, the cluster emerged well into the history of the earlier statutory range and I should be reluctant to recast the range on an arithmetical basis. The proposition that the top of the range is now a little low is, however, entirely unexceptional. [8] As to the Appellant's submissions about deficiencies in Her Honour's reasons: (a) I accept although the Respondent was represented no material was put in to suggest a limited capacity to pay. However, the general description of the nature of the business in the Statement of Agreed Facts is indicative of modest means. (b) The submission that there was no evidence that the injured worker suffered an ongoing incapacity is not correct. The evidence is contained in the worker's statement which was tendered. (c) I accept that in Waltham v Transfield Services (Australia) Pty Ltd, ibid, a comprehensive safety system and a system for its implementation failed. Here, the Respondent had taken no step whatsoever. The similarity is that the forklift driver ignored his training in the absence of appropriate supervision. [9] Were the deficiencies, which appear to be no more than loose expression, the only criticisms, I should not intervene. On balance, this seems to me to be a case in which intervention by this Court is warranted. The problem is the quantum of the fine. In fixing the fine to be substituted for that imposed at first instance, I take into account that the Respondent has faced the disappointment of the difficult experience of a sentence being re-opened after litigation apparently was resolved. [10] The Order of the Court is that the fine of $20,000 imposed by the Industrial Magistrate by set aside and that a fine of $35,000 be imposed in lieu thereof. All other orders of the Industrial Magistrate are confirmed. Dated 15 March 2011. D.R. HALL, President. Released: 15 March 2011 Appearances: Mr P. Major of Legal and Prosecution Services, Fair and Safe Work Queensland, for the Appellant. Mr A.R. Philp SC, instructed by Williams Graham Carmen Solicitors, for the Respondent. 1 House v The King (1936) 55 CLR 499 at 504 2 Harris v The Queen (1954) 90 CLR 652 at 655 3 Waltham v Transfield Services (Australia) Pty Ltd (2007) 184 QGIG 179 at 182 -- 4 of 4 --