Insp Plowright v Peter J Davis - [2001] NSWIRComm 269 - NSWIRComm 1997 case summary — Zoe

NSWNSWIRComm

Insp Plowright v Peter J Davis

[2001] NSWIRComm 269

Industrial Relations Commission (NSW)|1997-05-02|Before: Peter J, Kavanagh J, Ms P

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1997-05-02

Before

Peter J, Kavanagh J, Ms P

Catchwords

09/12/2001 DATE OF JUDGMENT: 11/01/2001

Source

Original judgment source is linked above.

Catchwords

09/12/2001 DATE OF JUDGMENT: 11/01/2001

Judgment (49 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Insp Plowright v Peter J Davis (Newcastle) Pty Limited [2001] NSWIRComm 269 PROSECUTION: PARTIES : Inspector Plowright DEFENDANT: Peter J Davis (Newcastle) Pty Limited FILE NUMBER: IRC562 of 2001 CORAM: Kavanagh J CATCHWORDS : Plea of not guilty to charge under s16(1) of the Occupational Health and Safety Act 1983 - Whether the site, on the date of the incident, was a "place of work" of the defendant company - Whether there had been a "hand over" of a single apartment on a floor of an apartment block which block had six apartments on each floor - "Place of work" a question of fact - Work still being performed by the defendant company on site - Defendant company required to perform other variations and detailing on the site - Finding the breach occurred at the site of an undertaking of the defendant company at its place of work - Breach found proven LEGISLATION CITED : Occupational Health and Safety Act 1983 s16(1) Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 CASES CITED : Kirkby v A & M I Hanson Pty Limited (1994) 55 IR 40 WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 Insp Maltby v Harris Excavation and Demolition Pty Ltd (unreported, Cahill V-P, CT1144 of 1995, 2 May 1997) HEARING DATES: 09/11/2001; 09/12/2001 DATE OF JUDGMENT: 11/01/2001

[11]

7 A number of further factual matters, as the case progressed, were not in dispute. The construction site was a multi-storey apartment building on the corner of Scott and Watts Street, Newcastle. At the time of the incident the building was encapsulated with scaffold shade cloth and mesh. The building was constructed with concrete floors and supports with brick facia and infills. The ceilings of each floor of the building had a concrete pour except for the 9th floor which was the top floor of the apartment block. It had no concrete ceiling as it was the floor above which the roof was to be constructed. The alleged breach occurred on the 9th floor of the building in Apartment No. 901. At the time of the alleged breach there were steel support beams erected on the roof line of the 9th floor but no cladding. On 2 December 1999 the WorkCover Inspector wrote: The room had galvanised purlins overhead with an Ausmesh fall barrier. There was no cladding on the roof purlins in this section. 8 On 11 February 1999 inside Apartment No 901, plumbers were working. Mr Garry Ward, a third year apprentice plumber had been working on the site for about one and a half months. He was, on the day of the alleged breach, working in the kitchen area. He was employed by a company called HGT Australia Limited but was working under the supervision of a foreman known as George, a tradesman from True Flow Plumbing. At approximately 11.45am Mr Ward was working on pipes for the connection of gas and the hot and cold water services. He was sitting in a cross legged position cutting a 25mm gas services pipe. He was facing a wall. Behind him was the free standing and unattached wall. Another plumber, Mr Paul John Allibon, also employed by HGH Australia Limited and working under the supervision of True Flow, was walking through the hallway on the other side of the free standing wall, which defined the kitchen area, when he was required to step over a box gutter. To do so he placed his hand on the free standing wall to steady himself and the wall gave way. The wall of bricks approximately 2.610m high and 1.750m long collapsed into the kitchen area. Bricks struck Mr Ward on the back of the head. He is now a paraplegic.

[17]

15 In defence of the charge, the defendant submits on 11 February 1999, in accordance with the provisions of the Act, this was not its "place of work." The defendant relies on evidence contained in a record of interview with its Managing Director taken by the WorkCover Authority on 25 August 1999. Mr Davis answered, as follows, to questions asked by the WorkCover Inspector who referred to the Contract between the Davis company and Capitol Apartments: Q24. . . . On page 3 of section G, 'BRICKWORK Extent of Works', it states: 'During windy conditions, or until mortar has set, or until cross walls are built, adequate bracing and scaffolding shall be provided to prevent collapse or movement of brickwork. Further conditions under WorkCover and Occupational Health & Safety are to be treated as minimum requirements.' What was the intent of this section of the document? A. In my opinion while we were in charge of the area it was my responsibility to adhere to those conditions. Q.25 Who was responsible for the installation and maintenance of the adequate bracing mentioned in this contract? A. We were responsible for it while we were working in the area until such time as we handed the area over on completion. Q26. Why wasn't the brick work adequately braced to prevent collapse as per the contract agreement? A. Under our contract agreement, as I see it, during the time we were responsible for that area the wall was adequately braced and on moving out of the area, on completion, we considered the responsibility for safety in that area rested with others. That particular area had been handed over after completion approximately two weeks before this incident occurred. Q27. What systems of work did Peter J Davis Newcastle Pty Ltd have in place to ensure that walls were adequately braced laterally until such times as permanent supports were erected? A. I don't know anywhere in the contract that tells me where I am responsible for supporting walls until permanent bracing is in place. On a large job that could be a never ending thing. Q28. What systems of work could have been used on the site to ensure that this wall were adequately braced laterally until such times as permanent supports were erected? A. On every other floor on this particular wall, immediately after we had left the area, a timber stud wall was placed adjacent to it as a permanent fixture. That timber stud wall was put in place very soon after we left the area. Q29. Would it have been reasonably practicable to use this system to ensure the lateral stability to this brick wall? A. A possibility, I cannot say for sure or not. Q30. What systems of work did Capitol Apartments Pty Ltd put in place after the incident to ensure the lateral stability of brick walls? A. My position is one of being off site so day to day occurrences on that particular site, were alterations by Capital that I am not aware of. Q31. What systems of work did Peter J Davis Newcastle Pty Ltd put in place after the incident to ensure the lateral stability of brick walls? A. Our company carried on with our policies of supporting all brick walls if necessary until areas were handed over to others.

[21]

19 Mr Malone, the building foreman on the site employed by Capitol Apartments said: Q. It wasn't unusual, was it, for Mr Davis to hand over his side of the brick work or his side of the construction on a unit by unit basis? A. Basically as we would finish a unit, Peter would say he could have his apprentices or his labourers come through and clean. Then, as soon as that was done and we would as I say there would be spasmodic checks, daily, weekly as far as the quality assurance went. If we could get into the area with the next trade and it was finished Peter and Peter had said it had been finished and checked by myself or Kim then we would move another trade in, the next trade, plumbers or electricians but, as far as hand over the whole area it was basically level by level. Q. But, he would hand over I suggest to you unit by unit as well? A. The thing was he was doing more than one unit at a time on that area so you would take certain amounts of area when Peter would say to be finished or cleaned. Q. And once he would say he has finished a unit he had finished a unit? A. Probably, yes as long as it is left in a way where we said it was clean and tidy and that is how we basically would need. Q. Take all his equipment out of the unit? A. Still on the same 90 per cent of the time he was still on the same floor because there were six units per floor and would work from one corner out or two corners in to a hallway because we also had a lift shaft area we were working on as well . Q. His evidence is before this court he finished unit 1 and unit 4 on the 9th level and had moved out of those areas. . . . A. I couldn't say whether that was true or false. Q. You just don't know? A. I couldn't give that being true or false. Q. You just don't know? A. No. Mr Malone therefore agrees there was an obligation on the bricklayer to leave the sites clean. However, his evidence did not endorse the view expressed by Mr Davies that the bricklayers had completed the handover of Apartment 901. It was his view, if there was a handover, it was "basically level by level".

[33]

33 In interpreting the obligations under s16, the Court must take into account the purposes of the legislation. Hungerford J in Kirkby v A & M I Hanson Pty Limited (1994) 55 IR 40 considered the question of general purpose and concluded in relation to s 16(1) (at 49-50): I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s5(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ , with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: "Incident prevention is unquestionably one of the modern responsibilities of an employer." The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 309: "In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. It is my view that the nature of the duties, and hence the question of whether an employer has offended against s 16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179: The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable. Again, and to a similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22: In interpreting an Act which is directed to guarding against incidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit.

Insp Plowright v Peter J Davis

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (49 paragraphs)

Parties

Cases Cited (7)

Cited By (1)