THE COURT: This appeal is brought by the Attorney General pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against a sentence imposed by her Honour Judge Strathdee in the District Court, for an offence of failing to comply with a health and safety duty owed to an employee, Mr Glenn Wild. The breach of duty directly resulted in Mr Wild falling to his death on a construction site on 1 August 2016. The offence was committed contrary to s 32 of the Work Health and Safety Act 2011 (NSW). The maximum penalty for the offence when committed by a corporation such as the respondent is a fine of $1.5 million.
The respondent was charged by summons filed in about June 2018. It entered a plea of guilty to an amended charge on 30 September 2019. The sentence hearing was conducted on 21 November 2019 and on 20 December 2019 her Honour imposed a fine of $75,000. That penalty reflected a discount of 25% for the respondent's plea of guilty. The Attorney General submits and the respondent concedes that this penalty was manifestly inadequate. The concession is properly made and the Court must proceed to resentence.
At the time the offence was committed s 32 was in these terms:
32 Failure to comply with health and safety duty - Category 2
A person commits a Category 2 offence if:
(a) the person has a health and safety duty, and
(b) the person fails to comply with that duty, and
(c) the failure exposes an individual to a risk of death or serious injury or illness.
The respondent's "health and safety duty" arose from s 19(1), as follows:
19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
In 2016 the respondent was a manufacturer of decorated metal packaging for food products and aerosols. It employed approximately 400 people at sites in Australia and New Zealand. Three of its sites are in Australia, one of them at Milperra. From about April 2016 the respondent undertook the construction of an enclosure room within a large industrial building at the Milperra premises, to house a new printing machine. The enclosure room was approximately 40m long and 12m wide, judging from photographs that were in evidence before the sentencing judge. The ceiling was at a height of more than four metres above the floor. At the time of the offence, the long walls and the ceiling of the room had been constructed. One of the long walls was immediately next to a structural wall of the larger building within which the enclosure room was erected. The ends of the room, being the shorter sides, were not enclosed as at 1 August 2016. The ceiling was well below the roof of the larger building. If one were standing on top of the ceiling, there was a free unprotected edge at each end and along one of the longer sides.
The respondent engaged Pelenoy Constructions Pty Ltd ("Pelenoy") as head contractor for the construction of the enclosure room. It in turn engaged sub-contractors to carry out aspects of the work. The respondent contracted the work to Pelenoy because construction of this nature was outside the company's usual operational expertise. However electrical works for the project were undertaken by the respondent's own engineering team under the supervision of its managers, principally the company's engineering manager, Mr Gregory Saywell.
One of the sub-contractors to Pelenoy was an entity trading as King Cold Rooms. Part of this sub-contractor's work was to cut large penetrations, up to 1200mm by 600mm, in the ceiling panels. King Cold Rooms had prepared on 11 July 2016 a Safety Work Method Statement ("SWMS") for the entirety of its scope of works on the site. This was a dense 21 page document divided into chapters concerning each activity, identifying potential safety and environmental hazards for each one and specifying risk control measures. Personnel responsible for each control measure were nominated, either by the word "all" or by the title of a job position. The SWMS included sections on accessing the top of the ceiling, marking out the top surface and underside of the ceiling for the penetrations and cutting them out. In respect of this part of the work the SWMS identified the risks of workers falling from a height and/or falling through a penetration. The control measures specified included placing a plywood covering over each penetration when cut, with a sign placed on top to read "Danger - Hole Underneath". Further control measures were that no one should remove the plywood without approval from the site supervisor or installer; workers should stay two metres away from "any live edge"; the two metre zone should be marked by a barrier and if workers were required to enter the zone then fall protection, such as a harness, would be required.
On Wednesday 27 and Thursday 28 July 2016, King Cold Rooms cut the penetrations in the ceiling panels. Sixteen of them measured 600mm by 600mm; four were 1200mm by 600mm and five were circular, 400mm in diameter. After being cut the penetrations were not covered with plywood or fenced or in any other way marked or protected to reduce the risk of a workman falling through.
In 2016 Mr Wild was employed full-time by the respondent as an electrician. From 22 July 2016 he and other employees of the respondent were directed to install electrical equipment and lights in the enclosure room. Some of this work required that the men should work on the upper surface of the ceiling panels. Mr Saywell directed them as to what work they were to undertake. It included the fixing of cable trays and conduits, running cables and connecting them to light fittings. The electricians worked on the surface above the ceiling panels prior to the penetrations being cut by King Cold Rooms and they continued working there afterwards. Access to the area above the ceiling was gained by scissor lift or by way of a ladder set up against the outside of one of the walls of the room. Mr Rowan, another electrician who was employed full-time by the respondent, worked above the ceiling on 27, 28 and 29 July, with penetrations present. On Friday, 29 July 2016 he spent a full shift working in that area alone, after all of the penetrations had been cut. According to the agreed statement of facts tendered to her Honour, four other employees also worked above the ceiling on 28 and 29 July 2016. They all discussed amongst themselves the need to be aware of the penetrations and to watch where they were standing. One of these men only worked in the space above the ceiling when he had someone else with him.
Each morning Mr Saywell conducted a toolbox meeting of the company's workmen who were engaged on the project. Safety issues were discussed at these meetings. Mr Nicholas Raptis was an employee of the respondent responsible for managing project safety and documentation. Mr Saywell was present when the penetrations were cut in the ceiling and he was aware that they were not covered or fenced thereafter. Although the risk posed by the penetrations was discussed at these toolbox meetings, no method of reducing the risk was formally specified by any person in the respondent's organisation who held a position of responsibility for safety, either orally or in writing. More importantly, none of the senior personnel took or directed any practical step to reduce the risk, such as placing temporary plywood covers over the penetrations, erecting temporary fencing or barriers around the penetrations, or issuing harnesses and installing strong points to which they could be attached.
On Monday 1 August 2016 the respondent's employed electricians continued to work on electrical installation on the area above the ceiling of the enclosure room throughout the day shift. At approximately 9:30pm Mr Wild arrived at the site to work a night shift. He and a co-worker were directed by Mr Saywell to continue the installation of lights and electrical components in the area above the ceiling. Shortly after commencing work in that area Mr Wild fell through one of the larger penetrations to the concrete floor below. He sustained severe injuries, most critically bilateral cerebral contusions. He died in hospital on 7 August 2016.
Counsel for the Attorney General referred the Court to clauses of the Work Health and Safety Regulation (2011) that were applicable to the work upon which Mr Wild was engaged and that defined it as "high risk construction work". It is not necessary to set out any part of the Regulation or to consider it in detail. The senior personnel of the respondent who were responsible for directing others engaged on this work did not need a Regulation to tell them that high risk - in anybody's language and not just by statutory definition - was involved in working at a height of 4m above a concrete floor on a ceiling riddled with uncovered and unfenced penetrations, through any one of which a workman could fall as a result of momentary inattention.
The agreed statement of facts refers to clauses of the Regulation that required the respondent to prepare a Safe Work Method Statement before undertaking this high risk construction work. There is reference in the agreed statement of facts to a wealth of clauses requiring documentation of procedures for the achievement of safe working conditions in such a situation. There is also extensive reference to a Code of Practice for Managing the Risk of Falls at Workplaces, issued in April 2016 by the New South Wales government authority SafeWork. The Code spells out various specific measures that should be adopted, immediately upon creation of such penetrations, for making them safe. The detailed provisions are referred to in her Honour's remarks on sentence. It is apparent that the respondent did not comply with many aspects of this available guidance. Before directing Mr Wild to work above the ceiling the respondent had not undertaken an assessment of the risks of performing that work at that location. No Safe Work Method Statement had been prepared for the work. Nor had the respondent obtained from King Cold Stores the SWMS that it had prepared, either to ascertain whether that sub-contractor had complied with its own safety precautions in relation to the work it had carried out or to determine whether those precautions should be adopted for the protection of the respondent's employed electrical tradesmen.
It is not necessary to recite the clauses of the regulation and the provisions of the Code that were disregarded. The very high degree of the respondent's departure from what would have been "reasonably practical" to "ensure" the safety of Mr Wild is all too apparent in this case. Photographs of the area above the ceiling were in evidence before her Honour. It is apparent from these that one glance at the work area would reveal that the risk of a fall through one of the penetrations was high; that the probable results of such a fall would be, at the least, very serious injury and that practical means of reducing the risk were obvious and could be readily and cheaply implemented. The cost of temporarily fixing a sheet of plywood over each penetration, with two or four screws to hold it in place, would have been negligible. The time required would likewise have been negligible. No material delay to the progress of the work would have been occasioned by the time and effort required to install and later remove these safety covers. That would be so even if they had to be removed and replaced one by one for the purpose of sequentially installing electrical fittings in or near the penetrations as work progressed. Having regard to the high risk of a workman falling and the serious consequences if this should occur, this basic protection should have been provided even if it would have involved significant cost and delay. But where the risk of a fall was high and the consequences of the risk being realised were extreme, the failure to implement a protective solution that was obvious and involved little expense or inconvenience was a very serious infringement of the section.
[2]
Subjective considerations
The respondent had an excellent safety record with respect to its large workforce prior to this accident. For 20 years prior there had been no other major accident, in Australia or New Zealand. The company recorded extended periods of no time lost from work as result of any injury to any employee, across all its sites. Its statistics in this respect are very significantly better than the industry average, according to data collected by SafeWork Australia. The respondent has had no prior conviction for a contravention of work, health and safety legislation and no safety-related prosecutions have been brought against it. It is fair to acknowledge that work on the construction of the enclosure room was outside the company's core activity of manufacturing. The company evidently lacked the level of consciousness about risks of really serious accidents that would be expected as a matter of corporate culture and mindset in a full-time construction enterprise.
Since the accident the company has returned to excellent safety performance. Immediately after Mr Wild's fall, fixed covers were installed over all penetrations of the ceiling before work continued. After 2016 the company implemented more rigorous systems with the aim of ensuring fulfilment of its safety obligations to employees in future. It outlaid in the order of $500,000 on safety audits and implementation of the safe working systems and checks. Her Honour accepted that the risk of re-offending is very low and that conclusion was well open.
Executives of the company at the highest levels and the senior management generally have expressed deep regret for the accident and full acknowledgement of corporate responsibility. The learned sentencing judge accepted the sincerity of these expressions. Before her Honour the prosecution accepted that a 25% discount for an early plea of guilty would be appropriate. In the hearing of the appeal the respondent has continued its cooperation in the administration of justice, appropriately acknowledging from the outset that the penalty imposed by her Honour was manifestly inadequate. This aspect of the respondent's conduct confirms the genuineness of the remorse and acceptance of responsibility by the senior personnel of the organisation.
The company has demonstrated genuine sympathy for Mr Wild's family. In the immediate aftermath of the accident practical assistance to the family was provided and thereafter continuing support for their welfare has been offered. Her Honour acknowledged the impact of the tragedy on Mr Wild's family, as does this Court.
[3]
Manifest inadequacy
All of the company's conduct in maintaining a sound safety record before this incident and afterwards and its appropriate responses to the accident itself are as would be expected of a responsible trading corporation. The learned sentencing judge appropriately took into account the subjective circumstances referred to above and the need for general and specific deterrence. The dominant factor in determining an appropriate level of penalty is the very high order of negligence that made this infringement such an objectively serious offence of its kind. There is no specific fault in her Honour's attention to the relevant sentencing factors, including the objective seriousness of the breach, but the level of penalty arrived at is, in this Court's view, manifestly inadequate by a factor of four. A starting point fine of $400,000 would be appropriate, discounted by 25% to $300,000.
[4]
Orders
The orders the Court will be:
1. Appeal allowed.
2. Orders (2) and (3) made by Strathdee DCJ on 20 December 2019 are set aside.
3. In lieu thereof, order that the respondent pay a fine of $300,000.
[5]
Amendments
09 December 2020 - Coversheet
10 December 2020 - para [1] "minimum" deleted and "maximum" substituted
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Decision last updated: 10 December 2020