Inspector Andrew Rowe v Stephensons Cranes Pty Ltd and Soltau

LEGISLATION CITED: Fines Act - s 10A Occupational Health and Safety Act 2000 - s 3, s 8(2), s 20(1), s 115

HEARING DATES: 15 July 2010 and 23 August 2010 (written submissions)

Mr D Chin of counsel (Prosecutor) Solicitor: Legal Group LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales

Mr D Murray, solicitor (Defendant) of AiGroup Legal

Inspector Andrew Rowe v Stephensons Cranes Pty Ltd and Richard Gordon Soltau (No 2)

Prosecution under s 8(2) and s 20(1) of the Occupational Health and Safety Act 2000

1 The nature of these proceedings and the relevant evidence is contained within my judgment published on 28 May 2010, Inspector Rowe v Stephensons Cranes Pty Ltd and Soltau [2010] NSWIRComm 68. In the course of my reasons for judgment, I made certain findings about the state of the evidence. I stood the proceedings over to enable the parties to make further submissions consequent upon the findings that I had made and in response to certain observations that I had made concerning my understanding of the charges brought against each of the defendants. 2 Having had the benefit of further submissions from the parties, I am now in a position to make findings concerning guilt and to proceed to impose penalties. I also intend making an order under s 115 of the Occupational Heath and Safety Act 2000 ("the Act"). Some further observations concerning the charges

3 In [3] and [5] of my earlier judgment, I set out the charges and particulars contained within the respective amended applications for order. In my judgment, I focussed in particular on the particulars of the risk as contained within a). I set out again the provisions of that particular of the risk that are common to the charges brought against each of the defendants.

a) The risk was the risk of persons, in particular Jamie Kirchen, being injured from falling from a height and from a falling load, in circumstances where a slung load of flooring was lowered by mobile crane onto a second story deck area consisting of unsecured timber joists, and where that load placed pressure on the timber joists, thus causing the unsecured joists to give way and collapse. 4 I should add for completeness that at the end of each of the particulars of charge referred to in b) to h) of the charge brought against the company and b) to k) of the charge brought against Mr Soltau, there appears this narration:

As a result of the defendant's failures persons, and in particular Jamie Kirchen, were placed at risk of injury from falling from a height, and from a load falling from a crane. 5 The narration at the end of each of the amended applications for order which describes the risk is relevantly different from that which is contained in particular a). The latter includes material commencing "in circumstances where a slung load … ." In particular, this further material contains within it an allegation that the "load placed pressure on the timber joists, thus causing the unsecured joists to give way and collapse." In my earlier judgment, I found that the Court could not be satisfied to the requisite standard of proof that the placing of the load on the timber joists caused the unsecured joists to give way and collapse. See, for example, [87] to [89]. 6 If the risks, the failure to avoid, which are at the heart of these proceedings, are those which are comprehended exclusively within a) and thus include the causal nexus which is described, then it is arguable that the prosecutor would not have made out most of the particulars of the charge. I referred to this matter in some detail in my earlier judgment. If, however, the offences with which the defendants are charged involve consideration of a risk of injury from falling from a height and from a falling load simpliciter, without any reference to the giving way and collapse of the joists by the placement of the load, then arguably the prosecutor will have succeeded in establishing most of the particulars alleged against each of the defendants. Again, this is the subject of detailed examination in my earlier judgment. 7 The prosecutor submitted that the particulars of the risk that are inherent in and contained within the particulars of the charge, and thus the charge levelled against each of the defendants, were to be read as being limited to falling from a height and from a falling load. The remainder of particulars contained within a) were there to describe the circumstances in which that risk arose and the context in which that risk of injury should be assessed. The prosecutor pointed to the concluding words of each of the particulars of charge that contained no reference to any causal nexus. 8 Not unnaturally, the defendants submitted that the particulars of the risk referred to in each of the charges and the manner in which they were particularised should be read in full incorporating all of the words used in a). It was said that these included the causal nexus between the physical risk as described and the placement of pressure on the timber joists by the depositing of the load. 9 In hindsight, it is possible that one could read and understand the charges brought against each of the defendants as reflecting the different positions contended for by each of the parties. If the position contended for by the prosecutor is accepted, it means that all of the contextual material contained in a) should be ignored. Obviously, the position contended for by the defendants is to the contrary. 10 My reading of the amended applications for order persuades me that the defendants were entitled to believe that the charges brought against each of them were based on the particulars of the risk as outlined in a). The context circumscribed those particulars. If particular a) is to be read without the contextual words, the risk of injury is much broader and could be the subject of any allegation made under the succeeding particulars of the charge no matter what caused the joists to give way and collapse. On this basis, the prosecutor should, in my opinion, be confined to the charges levelled against each of the defendants containing all of the material in a) of the particulars of the risk including the allegations as to causal nexus. Indeed, this is the basis upon which the proceedings were conducted. The controversy between the parties about which the preponderance of the evidence was adduced took the form of an examination of what caused the timber joists to give way and collapse and, in particular, whether the depositing of the load played any part, on the evidence, in these events. It was not part of the prosecutor's case, as I understood it and as I believe the defendants understood it, that there was no need for the prosecutor to establish any causal nexus. The mere fact that Mr Kirchen fell consequent upon the collapse of the joists was the manifestation of the risk of falling. 11 It would not be appropriate to allow the prosecutor to endeavour to couch each of the charges brought against each of the defendants so that they are to be understood in a manner different to that asserted by the prosecutor during the course of the proceedings and addressed by the defendants during the course of those proceedings. 12 In the course of further submissions, the prosecutor submitted that he was entitled to rely on d), e), f), g) and h) of the particulars of the charge brought against the defendant Stephensons Cranes and on the corresponding particulars of the charge brought against Mr Soltau. For reasons that I advanced in my earlier judgment, if the risk of injury is to include within it the causal nexus with the failure of the joists and the depositing of the load, I conclude that the prosecutor has not made out a case based on particulars d) and e). 13 The prosecutor relied on an alternative argument in connection with e) which was directed to the fact that Mr Kirchen should, in the circumstances, have had a dogging certificate in order to carry out the work that he did. It was submitted that "had the defendants ensured that only a person with a dogging certificate was permitted to direct the movement of the load by the crane, then Mr Kirchen, who as a matter of agreed fact did not hold such a certificate or qualification, would not have been permitted to engage in the work which he was performing." That is, he would not have been assisting in the depositing of the load in that particular area although, presumably, he may have been physically present elsewhere on that part of the building site. 14 In my earlier judgment, I did not reach any conclusion as to whether the work being performed by Mr Kirchen was, in fact, dogging work and that he should have been appropriately certified, on the basis that it was not necessary for me to do so. (See [75]). It is necessary to determine whether it is necessary to consider this aspect further in light of the alternative submission made by the prosecutor to which I have referred above. The argument put forward by the prosecutor is similar to the "but for" argument now rejected as providing an exclusive test of causation at law. Reduced to its simplest form, the argument is that Mr Kirchen was not certified as a dogman, he should not have been participating in the operation of the crane at that place at that time and therefore he would not have been injured. 15 However, if Mr Kirchen had been certified as a dogman there is no evidence that he would have carried out the operation in any different manner. The facts as I have found them are that the injuries sustained by Mr Kirchen resulted from the collapse of the joists, intrinsically bound up with the overall state of that part of the building site unrelated to the way in which the load had been slung, placed on that part of the construction site or unslung. There is no evidence that, if that part of the work undertaken by Mr Kirchen had been performed by anyone certified as a dogman, this would have caused any particular enquiry to have been made concerning the state of the flooring or, more significantly, would have caused that operation of the crane to have been conducted in any different way. For these reasons, I reject this submission. 16 The prosecutor also submitted that he was entitled to rely on f), g) and h), notwithstanding the factual findings that I have made. 17 In my earlier judgment at [103] I dealt with these particulars in the context of the factual finding that I had made. I adhere to the observations made in [103] of the earlier judgment with respect to f) and g). However, the application of h) is, arguably, distinguishable in that it is directed specifically to a risk assessment which should have been carried out concerning the state of the area upon which the load was to be deposited. Indeed, the defendants conceded that this particular applied in the circumstances of these proceedings, including the factual findings that I had made, as reflected in my earlier judgment. 18 It is clear that neither defendant undertook any examination of the physical area upon which the load was to be deposited. They should have done so. The safety of Mr Kirchen, albeit not an employee of Stephensons Cranes, was dependent upon the suitability of the area for the depositing of the load. 19 The evidence is that Mr Soltau, on his own behalf and on behalf of the defendant, relied upon the ostensible expertise of the carpenters in having placed the joists in such a manner that the area would be appropriate for the depositing of the load. In fact, several loads had already been lifted onto the area earlier that day, without incident. Nevertheless, there is no evidence that any particular enquiry was directed to Mr Harvey or Mr Kirchen concerning the safety and suitability of the area and no independent enquiry was made by or on behalf of Stephensons Cranes. 20 There are some ameliorating matters. Firstly, if an enquiry had been made of Messrs Harvey or Kirchen, the enquiry would have been directed to the persons who had installed the joists, as it transpired incorrectly. Given that no one who attended the site on behalf of Stephensons Cranes had the professed expertise to ascertain the security and suitability of the area, this raises the question as to whether or not it might be expected that the defendants should have retained some external consultant with the requisite expertise to advise them about these matters. This would seem to be a time consuming and perhaps costly exercise. In the circumstances, it is not necessary that I pursue this aspect further because, as conceded by the defendants, no attempt of any kind was made to investigate the status of the area where the load was to be deposited. 21 However, there is one further ameliorating factor. That is, that Mr Soltau was precluded from accessing the first floor area because of the presence of the sign indicating "Incomplete Scaffold". 22 Overall, the breach by the defendants, which I have found, is a serious one, but it needs to be seen in context. Overarching the context is the fact that the defendants were involved in the depositing of a heavy load of building materials onto an area in an operation that included the participation of a person who was not an employee of Stephensons Cranes. The Stephensons Cranes personnel must have been aware that Mr Kirchen was not wearing any safety harness, was working on exposed joists and there was limited protection against a fall. More significantly, however, for these proceedings was the fact that the Stephensons Cranes personnel, including the defendant Mr Soltau, made an assumption about the safety and security of the area where the load was to be deposited but do not appear to have made any positive enquiry even from the persons immediately affected at the work site, namely Messrs Harvey and Kirchen. 23 However, the context includes the fact that the principal responsibility for the safety and security of that area rested on Messrs Harvey and Kirchen. Furthermore, the principal responsibility to ensure that Mr Kirchen was using a fall restraint system and that there were adequate fall restraint measures in place rested on Mr Harvey. An additional matter is the fact that Mr Soltau was discouraged from accessing the first floor area because of the indication that the scaffolding was "Incomplete". 24 In assessing the objective seriousness of the breach by the defendants, I will take all of these matters into consideration. Certainly, I would regard the culpability of these defendants as being less than that of Mr Harvey. 25 In assessing penalty I shall also take into account the deterrent effect that such a penalty will have both on the defendants and within the construction industry generally. 26 There are a number of mitigating factors that the Court is entitled to take into account in the assessment of penalty. The defendants have demonstrated, and the prosecutor has accepted, that they pleaded guilty at the earliest possible opportunity, that they expressed contrition and remorse for what occurred and that they co-operated with the prosecutor in and about the investigations conducted by the WorkCover Authority of New South Wales. Furthermore, Stephensons Cranes has volunteered to promote the circumstances of the incident as being something that needs to be attended to by the mobile crane industry and has also agreed to participate in the placement of advertisements pursuant to orders under s 115 of the Act, which I intend making. 27 The prosecutor sought a moiety of any penalty imposed and an order for costs. Neither of these was opposed by the defendants. 28 The maximum penalty which may be imposed on the defendant Stephensons Cranes is the sum of $825,000, by virtue of a prior conviction. That defendant was fined the sum of $13,000 for a breach of the Act, which appears to have occurred in or prior to 2004. It would seem, in the circumstances, that this involved a minor infraction by reason of the amount of the penalty imposed. Nevertheless, the fact of a prior conviction renders the maximum penalty payable as being $825,000 rather than $550,000. 29 This defendant adduced affidavit evidence of Andrew Westwood, who has been employed as its occupational health and safety manager since October 2008. Mr Westwood first became involved with the defendant Stephensons Cranes when he was retained as a consultant to assist it following the incident. There is evidence that this defendant has now introduced comprehensive occupational health and safety protocols designed to avoid any further breaches of the Act. This is a matter that I shall also take into account by way of a subjective feature in aid of the mitigation of the penalty. 30 Having regard to all of the matters to which I have referred, I am of the opinion that an appropriate penalty to be imposed on Stephensons Cranes is the sum of $65,000. 31 I set out in my earlier judgment some matters personal to the defendant Mr Soltau. I repeat [46] of that judgment:

In the course of his oral evidence, Mr Soltau said that the incident had had a grave effect on him. He said that he felt "really bad for Jamie", that he was diagnosed after the incident as suffering from post traumatic stress disorder, his marriage had fallen apart and he had lost his confidence. He has had difficulty sleeping and is now extremely cautious in relying on decisions made by other persons. He has given up teaching at TAFE. 32 The maximum penalty that may be imposed on Mr Soltau is $3,300. Given the circumstances in which the incident occurred, as I have earlier described them, and the subjective factors to which I have referred and the evidence as to the manner in which the incident has affected Mr Soltau, I do not see that any good purpose would be served in imposing a monetary fine upon him. In my opinion, this is an appropriate matter in which to extend the provisions of s 10A of the Fines Act. Accordingly, I will not impose any penalty but will record a conviction against Mr Soltau. Section 115

33 During the course of the proceedings, there was a discussion with the parties concerning the making of an order under s 115 of the Act in order to publicise the offence in these proceedings. Stephensons Cranes Pty Ltd indicated its consent to the making of such an order. The prosecutor did not oppose the making of such an order and took steps to provide information to the Court in terms of those publications in which an advertisement could appropriately be placed. 34 Section 115 of the Act is in the following terms:

(1) The court may do any one or more of the following: (a) order the offender to take specified action to publicise the offence, its consequences, the penalty imposed and any other related matter,

(b) order the offender to take specified action to notify specified persons or classes of persons of the offence, its consequences, the penalty imposed and any other related matter (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct).

(2) The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.

(3) If the offender fails to comply with an order under this section, the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify: (a) the original contravention, its consequences, the penalty imposed and any other related matter, and

(4) The reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender. 35 The application of s 115 should be considered in the context of the objects of the Act, which are contained in s 3.

(a) to secure and promote the health, safety and welfare of people at work,

(b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work,

(c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs,

(d) to provide for consultation and co-operation between employers and employees in achieving the objects of this Act,

(e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled,

(f) to develop and promote community awareness of occupational health and safety issues,

(g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices,

(h) to deal with the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work. 36 In particular, s 3(f) is designed to facilitate the dissemination of information that will enhance community awareness of occupational health and safety matters. Whilst information given in a general sense is always useful, in my experience information about particular incidents and particular circumstances provides a more graphic illustration of the type of issues that may arise in practice. 37 I regard the circumstances in which this incident occurred as being reflective of circumstances regularly encountered in the construction industry. That is, subcontractors are often required to deploy persons to perform work on or about areas of a construction site that have been either partially or wholly completed. In deploying these persons there is an innate tendency to accept the particular area upon which work is to be performed as being sufficiently safe and secure to enable that work to be performed within the constraints imposed by the Act. However, experience dictates that this is not always the case. For example, there are many decided cases where there has been a failure to erect appropriate scaffolding or fall restraint apparatus. As was the case in the context of these proceedings, there was an inherent instability in the floor area where the load was to be deposited which was not apparent to someone who did not have the necessary technical qualifications to understand and appreciate this. Nevertheless, the Act requires that where an entity deploys persons to perform work, particularly on a construction site, it must take all steps that will ensure the health, safety and welfare of persons performing work on or about the site. 38 In my opinion, an illustration of what can go wrong by reference to an actual incident is much more effective in compelling attention to a particular matter than the mere recitation or incanting of a set of rules or basic principles, most of which people in the construction industry will have heard before. Mere repetition does not attract attention. 39 For all these reasons, I intend ordering that the defendant Stephensons Cranes publish an advertisement on a least one occasion in the Sydney Daily Telegraph, as well as in the following two publications: Construction Contractor and Crane Lift. The advertisement is in the following terms:

Re: Inspector Rowe v Stephensons Cranes IRC 218 of 2009

This advertisement is published by Stephensons Cranes Pty Ltd pursuant to an order made by the Industrial Court of New South Wales under s 115 of the Occupational Health and Safety Act 2000

On 20 February 2007, an apprentice carpenter was seriously injured when he fell from the first floor level of a townhouse construction site after a load of timber flooring had been deposited on exposed joists. The joists collapsed and the apprentice was thrown to the ground. The crane company did not know that the joists had not been secured in accordance with the manufacturer's instructions. The apprentice was not wearing any fall restraint device nor was there appropriate perimeter scaffolding.

By its plea of guilty, the defendant acknowledged that it was required to assess the safety of the floor area and whether it provided a safe working environment for the apprentice even though primary responsibility for these matters rested with his employer.

Stephensons Cranes Pty Ltd acknowledges and understands:

1. it is important for a crane operator and dogman to assess the suitability of any area where a load is to be deposited by use of a crane;

2. it is important to consider whether and to what extent any persons not employed by the mobile crane operator are involved in its operations and may be affected by its operations and to consider what steps should be taken to ensure the safety of any such persons. Orders

40 I make the following orders: 1. Each of the defendants is found guilty of the offences with which they are charged and convicted accordingly. 2. I impose a penalty of $65,000 on the defendant Stephensons Cranes Pty Ltd with a moiety to the prosecutor. 3. The defendant Stephensons Cranes Pty Ltd is directed, at its cost and within 28 days, to place an advertisement in the Sydney Daily Telegraph, Construction Contractor and Crane Lift in the form appearing at [39] above. 4. The defendant Stephensons Cranes Pty Ltd is to pay the costs of the prosecutor in an amount assessed in default of agreement.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.