DEBRI PTY LTD t/as R & K INSTALLATIONS -v- MORRISON [2012] WASC 364 (4 July 2007)

3 I have had the benefit of detailed written submissions by counsel for the appellant and the respondent, which I have read and considered, and these are extremely comprehensive. I have also had the benefit of hearing submissions from counsel this morning as to whether or not leave to appeal should be granted.

4 In my view, leave to appeal in this case should be refused, both in relation to the application for leave to appeal against the conviction and in relation to the application for leave to appeal against the sentence and costs. It is necessary that I should state some brief reasons for coming to that conclusion.

5 The charge against the appellant was that on 16 March 2004, at Lot 102 Success Way, Henderson, being an employer, it failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards, and by that contravention caused serious harm to an employee, contrary to s 19(1) and s 19(7) of the Occupational Safety and Health Act (as it then was). The particulars of the alleged offence are contained in the attachment to the prosecution notice and they relate to a working environment at Lot 102 Success Way, Henderson, where a building was under construction. The particular hazard was that an employee of the appellant, a Mr Hasnie Adam Money, fell about nine metres from the roof on which he and another man were working. In relation to the allegation of the failure to take practicable measures to ensure the safety of the employees, the particulars of the allegations were that the appellant ought to have taken the following measures to mitigate or remove the hazard:

5.1 before the Employees commenced working on the Roof, provide an adequate fall injury prevention system to them;

5.2 before the Employees commenced working on the Roof adequately train them in the use of the fall injury prevention system;

5.3 before each occasion on which the Employees were required to work on the Roof get the Employees to demonstrate that they had understood the training and could competently use the fall injury prevention system; and

5.4 ensure that a competent person continually supervised the Employees while they worked on the Roof.

6 The allegations in relation to serious harm were that as a result of the fall, Mr Money suffered permanent injury; namely:

6.1 loss of about 5% of the use of his left arm below the elbow;

6.2 loss of about 5% of the use of both ankle joints;

6.3 loss of the full use of about 5% use of the right knee joint; and

6.4 loss of about 40% to 50% of the use of his back.

7 A trial took place in the Magistrates Court, running from 18 to 20 December 2006, at which considerable evidence was received. This included evidence from experienced workmen and roof plumbers about the necessity for, and the details of, suitable fall prevention systems and hazard reduction systems for employees working at height on a building under construction. The learned Magistrate gave detailed reasons for his decision, dated 31 January 2007, in which he concluded that the appellant had failed adequately to train and adequately to supervise the employee, Mr Money, and that Mr Money had suffered serious harm within the meaning of the Occupational Safety and Health Act.

8 After adjourning to take further submissions in relation to penalty, the learned Magistrate imposed a fine of $40,000 upon the present appellant and another fine of $10,000 upon the codefendant, which was the builder which had subcontracted the roof work to this appellant. In addition, the learned Magistrate ordered payment of costs in the amount which I have previously mentioned.

9 In the reasons for decision, after analysing the evidence of the various witnesses, the learned Magistrate addressed the four particulars alleged by the prosecution against this appellant. He upheld the alleged failures; that is, the allegations relating to failure to adequately train and failure to adequately supervise. However, his Honour concluded that the other alleged particulars were not established to the requisite degree.

10 It is important to emphasise that these four sets of particulars were in support of one single charge of breach of the Occupational Safety and Health Act and not of four distinct charges. The manner in which they were advanced was that the alleged offence was said to have been committed as a result of the breach of one or more of the four particulars. Once it was established that two particulars had been proved to the requisite degree, the offence was proved as his Honour concluded.

11 It is necessary for me to say something more about the circumstances leading to the accident, the injury, the charge and the conviction, and I now read from the statement of agreed facts, dated 18 December 2006, which was before the Magistrates Court, and was agreed to by counsel for the prosecution and for the present appellant:

1. Debri Pty Ltd [the appellant] was in the business of roof plumbing. That work included the construction of new roofs and gutters and the replacement of old roofs and gutters.
2. Debri Pty Ltd employed a David Brock Olsen and Hasnie Adam Money [the young man who was injured] as roof plumbers' assistants, and Michael Roger Houghton as a roof plumber.
3. David Olsen and Hasnie Money worked under the direction and supervision of Michael Houghton.
4. Prior to his employment by Debri Pty Ltd, Hasnie Money did not have any experience or training in roof plumbing.

12 Coming to the location where this accident occurred, it is agreed that some time before February 2004 a company, Logan Parker Constructions (WA) Pty Ltd) ('Logan Parker'), who was incidentally the second defendant to the charge in the Magistrates Court, subcontracted to the appellant the performance of the roof plumbing on two warehouses that it had been engaged to construct at 102 Success Way, Henderson. These warehouses included a smaller warehouse and a larger warehouse. There was evidence before the court below of the comparative size of these two buildings.

13 The roof plumbing carried out or to be carried out by the appellant on the warehouses included the attachment of wall sheets, safety wire, insulation, roof sheets and gutters. The distance above the ground to the gutter of the large warehouse was about nine metres. The working environment of Mr Money, Mr Olsen and Mr Houghton included the roof of the large warehouse; that is, 9 m about the ground.

14 It was acknowledged that the hazard in respect of which the employers' duties under the Occupational Safety and Health Act arose was the risk that the two roof plumbers' assistants, Mr Money and Mr Olsen, might fall from the edge of the roof of the large warehouse to the ground below when working near the edges of the open sides of that roof.

15 Dealing with the events leading to the accident, it was an agreed fact that while working for the appellant, and in addition to working on the roofs of the warehouses, Mr Money had worked on the roofs of a doublestorey home and several singlestorey homes. However, it was also established by the evidence, and not disputed before me, that Mr Money had never worked before at a height of 9 m above the ground, as he did on the roof of the large warehouse.

16 On the first day on which these employees were to begin work on the roof of the large warehouse, Mr Houghton handed a harness to Mr Money. Attached to the harness was a lanyard of about 1.8 m in length. That is depicted in the photographs which were in evidence before the learned Magistrate. An anchorage point, which was designed, manufactured and constructed so as to be capable of withstanding the force applied to it if a person fell while attached, was available for purchase and installation from appropriate suppliers in the Perth metropolitan region. Fall prevention and fall arrest equipment, suitable to ensure work safety on the roof of this warehouse, was also available to purchase from appropriate suppliers in the Perth metropolitan area.

17 In early March 2004, Mr Money, Mr Olsen and Mr Houghton irregularly worked on the roof of the large warehouse. During this time they laid safety wire over the purlins on the roof and placed insulation and finally roof sheets on the roof. On the day in question, 16 March 2004, the safety wire over the purlins and insulation and roof sheets were in place on the roof of the large warehouse, but there was no ridge capping on the ridge of the roof of that building. Also on that day, Mr Houghton instructed Mr Money and Mr Olsen to climb onto the roof and each use a rope to pull skylights up from the ground onto the top of the large warehouse. They were then required to stack the skylights on top of one another. Mr Houghton said that he would stay on the ground and tie the ropes around each individual skylight so that Mr Money and Mr Olsen could pull them up to the roof of the large warehouse when he signalled to them that he had finished tying the rope around the skylight.

18 Mr Money and Mr Olsen followed Mr Houghton's instructions set out in the description which I have just given. They climbed onto the roof and performed the task as described. It was during the performance of that task that Mr Money fell off the roof and was injured.

19 As a result of his injuries he was taken by ambulance to Fremantle Hospital. It was agreed that he had suffered the following injuries and residual disabilities:

1. Spinal cord injury involving burst fractures of the L2 and L4 vertebrae and bilateral lower limb weakness, [which was] worse on the left,
2. intra-articulated fracture/dislocation of the right knee,

1. intra-articulated fracture/dislocation of the left wrist,

1. left ankle ligamentous injury dislocation,
2. loss of function in the left arm below the elbow, the ankle joints and the right knee joint, in the order of 5% in each of those areas.

20 It was acknowledged before the learned Magistrate, and accepted before me, that there was certainly a risk of death from a fall from that height.

21 The learned Magistrate decided, for reasons which I have already mentioned, that the appellant had failed in its duty to train and supervise Mr Money and that that was the basis for the conviction. The findings, as they appear from his Honour's reasons, are that although there is some doubt about the actual circumstances of the fall, Mr Money was wearing the harness which was provided but the harness was not attached, whether by the lanyard or by any other fixed line, to any secure anchor point on the roof. Consequently, when he fell, he was unrestrained and suffered the injuries which were described.

22 The case involved a scrutiny of whether or not the system of work was adequate. This came down to an investigation of whether or not the employer had failed to provide an adequate fall injury prevention system. The learned Magistrate concluded that this particular aspect of the allegation had not been proved. It is this finding which is relied upon by the appellant to seek leave to appeal and to appeal on the basis that it is inconsistent with the findings of lack of supervision and lack of training.

23 It is necessary to say something about the actual finding and the context in which it was made. As I have already said, the case before the Magistrates Court involved an acceptance of the finding that, when Mr Money fell, he was not restrained; that is, he was not connected to any secure anchor point. It was contended by the appellant in the court below that, at least during this morning before the accident happened, when he had been working on the roof, he had had a line attached. Attention was given to the adequacy of the line and this involved some subissues about whether or not the nature of the knot used to affix the line to a purlin was suitable; whether of not the particular purlin was a suitable anchorage point; whether the particular line was adequate in the sense of conforming to contemporary safety requirements; and, the first issue of whether or not the line included or should have included a shock absorber. Those issues were examined by the learned Magistrate and it seems that his Honour was hesitant to accept the prosecution's submission that the use of a purlin as an anchor point was inadequate or, for that matter, that the criticism of a clove hitch knot to secure the rope was justified. There was some difference of expert evidence between a Mr McCormack and a Mr van der Meer, both independent witnesses, as to whether or not the purlin was a suitable anchor point. That controversy over the suitability of the purlin as an anchor point is itself sufficient to explain the learned Magistrate's conclusion that this aspect or this particular of the alleged offence had not been established. However, I see nothing inconsistent between that finding and the subsequent findings that there had been no adequate instruction or no adequate supervision of Mr Money while working on the roof.

24 Counsel for the applicant has contended that the basis of the finding of inadequate instruction and inadequate supervision included the absence of expertise by Mr Houghton in the use of fall injury prevention equipment. Counsel further submits that because that was the basis for the finding that there was inadequate training and supervision, it is inconsistent with the finding that lack of an adequate system had not been proved.

25 With all respect to the submissions which have been made on that behalf, they appear to me to overstate the significance of the finding in relation to the first particular. The real basis of the finding of the lack of training and supervision was that Mr Houghton had not had requisite experience in the field, at least of a contemporary kind; that there had been no formal training system with regard to Mr Money, although industry training systems were readily available at reasonable cost; and, that a relatively inexperienced workman such as Mr Money could have been and was left to work alone, exposed at the edge of the roof pulling up sheeting, when the accident happened, with his supervisor being on the ground.

26 It also emerged from the evidence that there was no system in place to ensure that men such as Mr Money regularly used the fall prevention system and were anchored by lines or lanyards to a point in the event of a fall. It seems to me that there was more than adequate evidence to support the finding that Mr Money was not properly instructed - that is, trained - and was not adequately supervised. No such inconsistency, as submitted, exists.

27 A further submission made by counsel for the applicant was that, on the issue of causation, there was no evidence to establish a necessary ingredient; namely, that if appropriate training or supervision had existed, this accident would have been prevented. On analysis of this submission, it became apparent that it depended heavily on the assumption that Mr Money had sufficient experience in roof plumbing to realise that there was a danger when working close to the edge of a roof; that, indeed, that danger was obvious to any intelligent person; and, that it was not established that he would have acted differently had he been given any of the more extensive training, which the learned Magistrate concluded was necessary.

28 Part of the submission relied on some principles taken from the decision of the Full Court of this Court in Bunnings Forest Products Pty Ltd v Shepherd (Unreported; FCt SCt of WA; Library No 980235; 5 May 1998). In particular, the judgment of Anderson J in that case emphasised the need to prove that the provision of the requisite training or supervision would indeed have made a difference before it could be regarded as an omission which caused or contributed to the accident which occurred. I unhesitatingly accept the correctness of the principle as explained in Bunnings Forest Products Pty Ltd v Shepherd, but it seems to me that there is much to distinguish the circumstances of that case with the present. Here this cannot be regarded as a momentary lapse by Mr Money, or a noncompliance with a system of work adequately established, maintained and supervised by some dereliction of personal obligation, or that Mr Money would have been impervious to adequate instructions.

29 The circumstances were that Money was only aged 21 years at the date of this accident. This was the first occasion that he had worked on a roof 9 m above the ground. He had only been employed for some weeks by the appellant and had no formal qualifications and no previous experience as a roof plumber. The experience which he did have was on single or doublestorey domestic buildings.

30 There was ample evidence before the learned Magistrate to conclude that he had not been adequately instructed and that, indeed, he had little, if any, appreciation of what really was expected of him and in particular of the hazards of working close to an edge pulling up sheeting, as he was doing at the time he fell. Moreover, it became apparent that his supervisor was on the ground and in fact had directed him to work at the edge in this fashion. Further, no other person on behalf of the appellant came onto the roof to inspect compliance with safety requirements or to assess whether or not restraining safety devices were being worn by the men.

31 The only conclusion which could be drawn from this, and which in effect was drawn by the learned Magistrate, was that there was no system of supervision in effect. Therefore, reliance on the submission that this was an unexpected or unforeseeable departure from the directives contained in the supervision or training cannot be sustained.

32 I have taken some time to deal with these details of the case because I accept that, if the applicant were able to show that there was an arguable prospect of success on any of the grounds of appeal which it seeks to raise, leave to appeal should be granted. However, I am satisfied from an examination of the written submissions and dialogue with counsel at this hearing today that the most that the applicant can attempt is to point to evidence not accepted by the learned Magistrate which, in its submission, should have produced a different conclusion. That attempt, in my view, is doomed to failure because there unquestionably was evidence upon which the learned Magistrate was entitled to rely which supported the conclusions which his Honour reached. This was evidence coming from other experienced workmen and from the inferences available about the circumstances of the accident itself. Accordingly, the application for leave to appeal really goes no further than pointing to evidence which the applicant submits the learned Magistrate should have accepted in preference to other evidence which he did accept to reach a different conclusion.

33 Apart from that, and the submission as to inconsistency, which I have already rejected, there is no basis for suggesting that any error of principle was made by the learned Magistrate. For that reason I am satisfied that there is no reasonable prospect of success for any of the grounds of appeal which are sought to be raised and that leave to appeal should be refused in relation to the conviction.

34 The imposition of a penalty of $40,000 is, of course, substantial, but the risk was severe and its consequences grave. This legislation is designed to bring home in the most tangible of ways - namely, significant pecuniary penalties - the consequences of failing to comply with necessary and prudent occupational safety and health requirements in a workplace.

35 The penalty was 20% of the maximum fine which could have been imposed. In the submissions of counsel for the respondent, at par 69, there is reference to a series of cases - Morrison v Winton (Unreported, SCt of WA Library No 960698; 12 December 1996 (Scott J); Industrial Galvanizers Corporation Pty Ltd t/as Industrial Galvanizers v Shepherd [1999] WASCA 282; Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435; (1998) 78 IR 354; Fremantle Steam Laundry Pty Ltd v Shepherd [2000] WASCA 17; (2000) 96 IR 64; Shepherd v Cooperative Bulk Handling Ltd [2001] WASCA 413 - in which penalties ranging from 25% of the maximum, to 20%, to 10%, to 12%, were imposed or upheld on appeal. It seems to me that this particular penalty was well within the range and, having regard to the severity of the injuries and the potential consequences for the victim, well justified.

36 The principal submission in relation to the application for leave to appeal against sentence was alleged want of parity between this fine of $40,000 on the appellant, and the fine of $10,000 imposed upon the codefendant, Logan Parker. As I have already said, Logan Parker was the principal builder on the site which had subcontracted this work to the appellant. Under the legislation it remained concurrently liable as employer, but its role was entirely passive. It seems to me that that justifies the more lenient penalty imposed against the codefendant.

37 Other than this suggested lack of parity, which I do not accept, there was no submission to show any error of principle or erroneous factor taken into account, or any relevant factor which was not taken into account, by the learned Magistrate when exercising his discretion to fine the appellant. For that reason, leave to appeal against the sentence should also be refused.

38 In relation to the order for costs, it is not necessary on this occasion to consider whether or not this order was properly identified as a subject of appeal at the time the notice of appeal was lodged. There is some reason to doubt that it was, but I shall proceed on the footing that the jurisdiction of the Court to appeal against the order for costs was engaged within time. Here again, however, there was no submission as to any error of principle or any erroneous factor entertained in imposing the order for costs or neglected when reaching that decision. For that reason, as well, leave to appeal in relation to the order for costs will be refused. Those are my reasons for refusing leave to appeal in any of the respects sought by the applicant on this notice.

39 The order of the Court will be that leave to appeal against conviction and leave to appeal against the penalty and order for costs be refused. There will also be an order that the applicant pay the respondent's costs of these proceedings, to be taxed.