Bultitude v Grice Constructions Pty Limited

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J

INSPECTOR RICK BULTITUDE v GRICE CONSTRUCTIONS PTY LIMITED Application for leave to appeal and appeal against a decision of Industrial Magistrate Ms Barkell given on 5 May 2000 in matter no 20313047/99/2

JUDGMENT OF THE COURT (Extempore) [2002] NSWIRComm 234

1 On 30 May 2002 the appeal brought pursuant to s 197A of the Industrial Relations Act 1996 against a decision given by Ms Barkell, Industrial Magistrate, on 5 May 2000 was upheld and it was thereby found that the respondent, Grice Constructions Pty limited, the defendant in the first instance proceedings, was guilty of a breach of s 16(1) of the Occupational Health and Safety Act 1983: Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20. The matter was stood over until today in order to finalise the appeal as to penalty and costs. This judgment concerns those matters.

2 The charge laid under s 16(1) of the Occupational Health and Safety Act, the factual matters relevant to the charge and the course of proceedings before the magistrate are conveniently set out in the earlier judgment of the Full Bench. We have also been assisted in these proceedings by the provision of a statement of agreed facts. It is sufficient to observe that the risk to injury occasioned by the inadequate supervision of a building project in this matter was in substance the erection of an unstable wall that was not properly braced.

3 The failures by the respondent in this matter were agreed and set out in the statement of agreed facts as follows: (29) The defendant failed to provide adequate supervision of the site with respect to the co-ordination of the activities of the bricklayers and ATFH Pty Ltd.

(30) Further, the defendant failed to take such steps as may be necessary to ensure that persons not in its employment, in particular, Mr Katic, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work by:

a) Temporarily supporting the structure by timber used as diagonal bracing in circumstances where materials and qualified labour were on site;

b) Temporarily supporting the structure with scaffolding in circumstances where materials and qualified labour were on site;

c) Temporarily taping of areas adjacent to the area in which the bin was to be deposited, including the adjacent driveway;

d) Directing a contractor to put in measures to shore or support the structure; and

e) Preventing the crane from lowering the skip or bin in proximity to the unsupported structure. 4 We emphasise, as did Mr Docking of counsel for the appellant in his submissions, the primary consideration in sentencing under the Occupational Health and Safety Act is the objective seriousness of the offence. We are satisfied that this was a serious offence having regard to the following considerations: 1. The risks to safety occasioned by the respondent were reasonably foreseeable and capable of simple remedy.

2. Those risks resulted in serious injury and by their nature inevitably had the potential to cause serious injury.

3. There is a need for general deterrence. This matter concerns a risk which arises in an inherently dangerous industry. The need for general deterrence is further emphasised by the requirements of the Construction Safety Regulation 1950.

5 We do not accept that the factors identified by the respondent as to the nature of its employees and sub-contractors (being appropriately qualified, licensed and experienced) mitigates in the way submitted the seriousness of the offence. This is not a case in which the respondent relied upon the advice of contractors or other persons or depended upon persons not properly discharging their duty. The respondent through its principal reached its own view as to the safety of the wall, that is, that the manner of constructing the wall was safe. In any event, in the assessment of the culpability of a defendant where there are multiple entities contributing to a breach under the Occupational Health and Safety Act, the primary consideration remains the objective seriousness of the offence with which the particular defendant is charged.

6 As to the question of specific deterrence we consider that, having regard to the ongoing involvement, indeed the growing involvement, of the respondent in the construction industry and the nature of the risk which occurred, specific deterrence is relevant in this matter.

7 There are some significant subjective features which we consider should result in a substantial discount to penalty in this matter. These are as follows:

1. Hitherto and since the offence the respondent has had an impeccable safety record. This is particularly significant given the nature of the industry in which the defendant is engaged. 2. The cooperation given to the WorkCover Authority even though the respondent did not plead guilty. 3. The steps taken by the respondent after the incident including the development of a new and commendable safety management system. We consider that it is also appropriate to apply the principle of double jeopardy having regard to all of the features of the present matter including the matter of delay occasioned by the appeal proceedings, a matter significantly relied on by counsel for the respondent. 8 As to the application by the respondent that we exercise our discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999, we adopt the approach of the Full Bench of this Court in WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Limited (2000) 100 IR 64 at [26], namely, the exercise of that discretion under the Occupational Health and Safety Act must be considered as extraordinary and highly exceptional. Having regard to the objective features of this matter we consider that it would be inappropriate to exercise our discretion in the manner sought by the respondent, notwithstanding the matters relied on by it including the issue of delay.

9 We do not consider that Mr Cahill of counsel for the respondent, has made out a case for a further reduction in penalty having regard to the nature of the business operated by the respondent. The Court has, naturally, had regard to the particular circumstances of the offender, and the overall circumstances of the proceedings and the offence, but as to the respondent's circumstances, no case of impecuniosity or incapacity to pay has been raised. The respondent merely relies upon the fact that it is a relatively small corporation. 10 In all the circumstances, we order:

1. The respondent is fined the sum of $10,000 with a moiety thereof to the appellant. [Counsel addressed the Court as to costs. The Court then said] 11 We note that the parties have reached agreement on the question of costs at first instance, the Full Bench having advised them that it was not considered appropriate to make an order as to the costs of the appeal. We propose to make orders to give effect to the parties' agreement. The Court therefore makes the following further orders:

2. The respondent shall pay the appellant's costs before the Industrial Magistrate in the sum of $6,000.

3. There shall be no order as to the costs of the appeal.

12 These proceedings are thereby concluded. __________________________

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