Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v... [2010] NSWIRComm 106 | Case summary

32 Delta's safety systems reveal an impressive and comprehensive set of polices and procedures which were specifically designed for application at the site. Nevertheless, the systems were also deficient in some respects, particularly with regard to their implementation. Notwithstanding the prohibition in the Site Safety Rules, for example, against climbing scaffold standards, this is precisely what Messrs Hughes and Issell were doing immediately prior to the incident. Although Delta's site specific risk assessment identified penetrations as a hazard and directed that penetrations be covered and the covers secured, this is not, in fact, what occurred with regard to the penetration created by Mr Hughes and Mr Issell on level 9. 33 None of the safety procedures devised appeared to incorporate measures to ensure the safety of workers utilising an electric winch to lower the scaffolding components. According to the agreed facts, no SWMS existed for the "winch installation task" performed by Messrs Hughes and Issell and no site specific risk assessment was carried out for the installation of the winch. 34 Also, according to the agreed facts, other mechanical devices existed for lowering scaffolding components. These included scaffold jib cranes and tonne cranes which were recommended acceptable means for lowering scaffolding components when "handballing" or "chaining" (a gang of workers forming a human chain to pass equipment to the other) was not practicable. After 5 January 2006, a crane was in fact used to lower the components placed in pallets. 35 Delta had two supervisors on the site on 5 January 2006. One, Frank Sinko, was working on the ground. The other supervisor, Mr Wallace, was working on the roof area about 30 to 35 metres away from Messrs Hughes and Issell. Mr Wallace did not see the two men placing on, or removing from, the working platform, the planks or boards for the purpose of attaching the winch. He also did not observe what fall arrest devices Messrs Hughes and Issell had in place. Waco had also issued a SWMS which was adopted by the BTSS employees. Mr Wallace's responsibilities at the site included ensuring that sub-contractors followed documentation SWMS. Despite this, Mr Wallace, in his WorkCover interview, was unsure about the contents of the Waco SWMS with regard to the scaling of scaffolding and scaffolding standards. He also said that he was not present when Mr Tracey conducted a tool box talk with Messrs Hughes and Issell regarding the installation of the winch. 36 Neither Mr Hughes, nor Mr Issell were wearing safety harnesses or other fall arrest devices at the time of the incident, even though two harnesses belonging to Delta were located shortly after the incident on the scaffolding deck in an adjoining bay approximately one metre from the open penetration on level 9. 37 Notwithstanding the deficiencies in Delta's safety systems, Delta obviously took its occupational health and safety commitments at the site very seriously as demonstrated by the impressive and very comprehensive systems it had devised specifically for implementation at the site. This will be taken into account in Delta's favour in mitigation of the objective seriousness of the offence and will be reflected in the penalty to be imposed. Other objective factors 38 The risk to the safety of Messrs Hughes and Issell, which was characterised by the prosecutor as a risk of falling through an open penetration on a building site, was an obvious one in the circumstances and well-known to Delta as evidenced by its extensive safety regime which incorporated multiple references to the hazards associated with working near open penetrations. Delta, in fact, conceded during oral hearing that the risk of falling through a penetration, "is not an unknown or remote risk". There can be little doubt that the measures in place to prohibit Mr Hughes and Mr Issell at the time of the accident were ineffective, consisting as they did of a handrail around the penetration and a transom attached to the wire mesh of the handrail. 39 There were certainly available alternative measures in relation to which the task of lowering scaffolding components could have been accomplished safely. These alternative measures have been earlier referred to and need no repetition. There were harnesses available only one metre away from the site of the penetration. Why they were not utilised by Messrs Hughes and Issell has not been explained in the evidence. The mere fact they were located in the near vicinity of the open penetration, in a different bay, would not enable the Court to conclude that they had been made available to the two men for their use, or were otherwise brought to their attention. With regard to the use of a crane (a procedure which was utilised for the task after the incident) the agreed facts refer to a quotation submitted to Waco prior to the accident by BTSS which allowed a sum of $12,000 for cranage. This suggests that the cost of utilising a crane for the task would not have been prohibitive. 40 The likely consequences of the breach were very serious, a matter tragically realised in the death of Mr Hughes. Mr Issell also faced a likely prospect of suffering fatal injuries by reason of his exposure to the risk to his safety. 41 These matters in combination compel the conclusion that the offence against Delta was objectively serious, although this must be qualified by the established existence of largely effective, extensive systems and procedures specifically designed to ensure the safety of all personnel at the site. 42 Delta has one prior conviction and therefore faces a maximum penalty of $825,000. 43 General deterrence has real significance in these sentencing reasons. The factual background involves risks to safety existing within the demolition industry, in particular risks arising, as here, from working at heights near open penetrations. It is imperative, given the nature of the industry that employers be made aware of the importance of implementing appropriate measures to ensure workers can undertake their work in a safe working environment without fear of injuries: see on these issues Inspector Dubois v Masters Civil Pty Ltd and Anor [2006] NSWIRComm 180 at [15] (upheld on appeal in Masters Civil Pty Ltd v WorkCover Authority (NSW) (Inspector Dubois) (2006) 158 IR 10; Inspector Julie Townsend v Austruc Constructions Limited [2007] NSWIRComm 321; Inspector Dimitri Barlas v C & J Carpentry & Construction Pty Ltd and Others [2009] NSWIRComm 127 at [16]. 44 Specific deterrence is also relevant. Delta continues to work in the industry, although the number of effective measures put in place by Delta following the offence will be taken into account in its favour when applying the principle for the purposes of assessing the appropriate penalty. Subjective factors 45 Delta entered an early plea of guilty, a matter acknowledged by the prosecutor. I propose therefore to assess an appropriate penalty for the utilitarian value of the offence at 25 per cent. 46 As a separate consideration from the utilitarian value of the plea, Delta is also entitled to leniency in recognition of the remorse shown by the plea of guilty. 47 Delta also co-operated with WorkCover during its investigation into the details of the accident, for example, by shutting down the whole of the site to facilitate the investigation, and by attending to the issue of improvement notices. 48 Assistance was also provided by Delta to all workers who were on the site on the day of the accident in the form of a counselling session. Mr Wallace, who was deeply affected by the accident, was permitted to take a six-week leave of absence. 49 Delta has also shown good industrial citizenship by reason of its position in its field of specialty as a leader in the industry. It works closely with the union movement on safety matters. It is only one of three demolition contractors with Federal Safety Commission accreditation. It has a good reputation in the demolition industry as evidenced by the many large and complex demolition projects it has been contracted to carry out. 50 Delta also introduced a number of safety measures after the offence in order to minimise the occurrence of all or any future risks to safety arising at its worksites. These measures have been set out in detail in Ms Murphy's affidavit. They include, in summary, the following (extracted from Ms Murphy's affidavit): Delta has implemented changes to its occupational health and safety systems and procedures with a view to putting measures in place to avoid any incident of a similar nature occurring again. Specifically, Delta has implemented the following areas of improvement: (a) devoted more personnel resources to occupational health and safety, in particular dedicating personnel resources to particular States under the overall supervision of a National Occupational Health and Safety Manager; (b) retained the services of an external consultant to advise and improve Delta's occupational health and safety systems and procedures. In 2008 Delta obtained accreditation for its occupational health and safety management system under AS/NZS 4801:2001 in New South Wales, Victoria and the Australian Capital Territory; (c) implemented a formal system of site auditing to ensure compliance with safe work method statements; (d) ensured that safe work method statements are prepared when there is any change of work methodology and improved consultation on safe work method statement preparation. Delta has also improved supervision and monitoring of subcontractors particularly regarding the adequacy of and compliance with safe work methods; (e) improved on the notification and enforcement of Delta's drug and alcohol policy; (f) since 2006, improved its Occupational Health and Safety Management Plan through a significant number of revisions. This has included implementation of those changes; (g) since 2006, devoted more resources to the training of all employees nationwide to increase skills and improve the awareness of the importance of occupational health and safety. 51 Following the accident, Delta also met with Waco to discuss safety concerns arising out of the incident, in particular, the requirements for task specific SWMS. Waco subsequently prepared a supplementary SWMS in relation to which Delta ensured all scaffolders received on induction. Delta also re-inducted all its employees into the supplementary Waco SWMS. Delta also hired a crane for the further dismantling of the scaffolding. 52 Delta has also expressed contrition for the circumstances of the offence. Ms Murphy stated that Delta management and its employees were "traumatised" by the accident. This, together with the post-offence measures undertaken by Delta mentioned above, allows the Court to also take this factor into account in mitigation of penalty. 53 All of the subjective factors mentioned above will be taken into account in mitigation of penalty. 54 The presence of a prior conviction disentitles Delta from receiving leniency, normally granted to an offender not adversely recorded. Victim Impact Statements 55 During the sentence proceedings, the Court received victim impact statements from Mr Hughes' parents, Frank and Hetty Hughes, and his brother, Christopher Hughes. Christopher Hughes read his statement onto the record. 56 In accordance with the prevailing law, the Court may received the statements but may not take them into account in determining an appropriate sentence: Salvatore Previtera (1997) 94 A Crim R 76; Mark Andrew Bollen (1998) 99 A Crim R 510; Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43]; Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 at [304] to [322]. It was not suggested by either party that the Court should receive the statements for any wider purpose. 57 Mr Christopher Hughes' account on the record and the statements of Mr and Mrs Hughes illustrate the dreadful impact of this tragedy on a family. The Court expresses its deepest sympathy to the Hughes family for the loss of a son and brother. Waco Kwikform Limited 58 I turn now to consider the offence with which Waco has been charged. 59 The agreed facts provided in Waco substantially overlap with the agreed facts in the matter of Delta. I therefore adopt in these sentencing reasons the agreed facts tendered in the proceedings against Delta, in so far as they are the same facts set out in the agreed facts document tendered against Waco. 60 Waco contracted with Delta to supply the scaffolding equipment and scaffold labour services for the demolition of the building. It sub-contracted BTSS to provide the labour to erect and dismantle the scaffolding at the site. 61 As referred to earlier in Delta's sentencing reasons, it was the intention of Mr Hughes and Mr Issell to use an electric winch to lower scaffolding components to the ground through an open penetration, created by them, in the scaffolding working deck on level 9. According to the agreed facts in Waco, Delta knew about and had approved the installation and operation of the winch for the stated purpose. Delta had earlier considered and decided against the use of a crane. Delta did not conduct a risk assessment for the installation and operation of the winch, although its anticipated use had been discussed at a tool box meeting on the morning of the accident (5 January 2006) conducted by Mr Wallace, Delta's site foreman. Delta had earlier used the winch to raise gas welding bottles and portions of steel. 62 According to the agreed facts, the open penetration was not barricaded off (at the time of the accident) to prevent access. There was therefore nothing in place to prevent persons working in the near vicinity falling through the penetration 33 metres to the ground. Systems of work in place prior to the offence 63 Rodney Graham Mill, Executive General Manager of Waco, has set out in an affidavit, Waco's systems and procedures formulated specifically for use and implementation at the site. It is convenient to extract certain parts of Mr Mill's affidavit which serve to illustrate the extent of those systems and procedures in force at the site prior to the offence: On 21 November 2005, Waco prepared and issued to BTS a safe work method statement in relation to the work being undertaken at the Site pursuant to the Subcontract Agreement (Waco 2005 SWMS). I was involved in overseeing the preparation of the Waco 2005 SWMS, which had been prepared by Peter Pade (Mr Pade), who was the Sydney Branch OHS Manager at the time (Mr Pade is currently the National OHS Manager). Whilst I was aware of the provisions in the Waco 2005 SWMS, I was not involved in the process of adapting this safe work method statement to specific sites. This process was undertaken by Mr Pade in conjunction with the relevant sales representatives. The purpose of the Waco 2005 SWMS was to provide subcontractors with an outline of the prescribed methods as to how Waco's scaffolding was to be safely erected and dismantled at specific sites, including in compliance with the relevant industry standards. The Waco 2005 SWMS (like all of Waco's safe work method statements to date) was designed so that subcontractors and Waco had scope (in consultation with each other) to adapt it to the subcontractors' specific requirements from one site/job to another in accordance with the relevant subcontract agreement with Waco. Throughout 2005, Waco had engaged BTS as a subcontractor on a number of occasions to undertake work in compliance with the Waco 2005 SWMS. Further, the Waco 2005 SWMS had been provided to subcontractors (including BTS) at an OHS conference more than six months prior to 5 January 2006. Accordingly, Mr Tracey (as the principal of BTS) would have been familiar with the Waco 2005 SWMS. The Waco 2005 SWMS and the Subcontract Agreement required BTS and Waco to engage in consultation to prepare a specific safe work method statement. This would ordinarily involve the undertaking of an additional risk assessment and a tool box talk for any unique task/work requirement not covered by the Waco 2005 SWMS. This process of consultation would also apply with respect to the use of any plant (including winches) which was not referred to in the Waco 2005 SWMS. The Waco 2005 SWMS did not include any references to penetrations (and in particular, the lowering of materials through a penetration) in relation to materials handling because the systems of work prescribed in the Waco 2005 SWMS with respect to the erection and dismantling of scaffolding did not require, contemplate or endorse the use of penetrations. The Waco 2005 SWMS prescribed the use of hoists, cranes and passing scaffolding by hand in relation to materials handling in this regard. For clarification, hoists as compared to winches are distinctly different forms of materials handling. Similarly, the Waco 2005 SWMS did not include any references to winches (and in particular, the lowering of materials via winch) in relation to materials handling because the systems of work prescribed in the Waco 2005 SWMS with respect to the erection and dismantling of scaffolding id not require, contemplate or endorse the use of winches. If BTS wished to utilise a winch, it would be required to comply with the Subcontract Agreement. In my experience, the use of winches to erect and dismantle scaffolding is not a work method which is used in the scaffolding industry. During my time at Waco, I have not observed any safe work method statements prepared by Waco and used in relation to a task which has required the use of penetrations or winches in the erection and dismantling of scaffolding. 64 Waco also had in place at the site, prior to the offence, a regime for the induction of sub-contractors and the monitoring of compliance with its SWMS. This regime is set out in the affidavit as follows: Waco had systems in place so that it could determine whether the subcontractors engaged were appropriately experienced, inducted in relation to the safe use of its scaffolding and had all the necessary components to undertake the relevant work. The inductions were provided at two levels. OHS conferences were attended by principals/leading hands of subcontractors and Waco site/project supervisors and sales representatives (conducted on an annual basis). Inductions were also held at the sites for each project. Site specific inductions were undertaken by ensuring that one of Waco's site/project supervisors (for example, Marc Reed) inducted the subcontractor (typically by inducting the subcontractor's principal and those scaffolders whom the subcontractor had selected to immediately start on the job at the site) into Waco's safe work method statement and then handing over that statement so that the subcontractor could then ensure that each of its employees who were to work on the particular site/project were in turn inducted into the statement. After the induction on site, the site/project supervisor would attend the site on a regular periodic basis (approximately every two days) to facilitate the progression of scaffolding works at the site and to monitor the subcontractor's compliance with the safe work method statement in relation to the erection and dismantling of scaffolding by observing whether the scaffolders were erecting the scaffolding in compliance with the way in which the Waco had designed it. Under the system in place, a Waco site/project supervisor was not responsible for supervising on a day-to-day basis the work undertaken by subcontractors or subcontractor's employees. this responsibility of supervising the subcontractor's employees primarily resided with the principal of the subcontractor. 65 Mr Mill also sought to emphasise in his affidavit that Waco only engaged experienced and reputable sub-contractors to undertake work. Waco's OHS Management Systems also set out internal control guidelines which Waco representatives were required to follow when engaging the services of contractors or sub-contractors. 66 As with Delta, Waco had impressive and extensive systems and procedures specifically formulated and devised to ensure the work at the site would proceed safely and that workers at the site would not be exposed to risks to their safety. There were, nevertheless, deficiencies in its systems. These have been set out in the agreed facts. 67 The Waco 2005 SWMS, for example, provided no instruction in relation to the work method adopted for the task of securing the winch by Messrs Hughes and Issell on 5 January 2006. As Mr Mill sought to make clear in his affidavit, Waco's SWMS did not refer to or require the use of the winch for materials handling. Instead, the SWMS prescribed other methods of materials handling such as "passing the scaffold by hand" (otherwise referred to as "chaining") or in the alternative the use of a crane or hoist. Nevertheless, the omission in the Waco 2005 SWMS of any reference to a system of procedure for the use of the winch amounts to a deficiency in its systems. Waco acknowledged the deficiency in the context that as a causative factor it was "more distant in time" than other factors, relevant to the immediate causes of the accident. 68 It has not been suggested in the evidence, as I apprehend it, however, that the use of a winch per se as a means of lowering scaffolding components is, or may be, hazardous. Rather, it was the absence of adequate procedures with regard to the work to be performed (using the winch) in the vicinity of an open penetration that exposed the workers to a risk to safety. In addition, as the agreed facts highlight, the open penetration was not barricaded off to prevent access. There was nothing in place to prevent a person falling 33 metres to the ground. 69 Waco's 2005 SWMS also failed to identify the hazards posed by penetration in scaffolding and the associated risk of falling from the scaffolding through penetrations. The risk of falls from heights through penetrations is a well-known risk within the demolition and construction industries. The failure of Waco to address this matter in its 2005 SWMS reveals another deficiency in an otherwise comprehensive system. The charge to which Waco entered its plea of guilty alleges in specific terms a failure on its part to ensure that the work performed by BTSS did not permit open penetrations through which persons could fall while working at heights; and, a failure to ensure that BTSS provided and maintained a safe system for the securing of the winch while it was being operated at height. 70 Another particular of the charge to which Waco entered a plea of guilty alleged a failure to provide adequate supervision "of the winch being undertaken by its subcontractor (BTSS) as was necessary to prevent falls from heights". 71 According to the agreed facts, Waco did not provide any supervision of the scaffolders working at the site or of the scaffolding works. It is instructive to set out in full the relevant extract of the agreed facts on this issue. The reference to "BTS" in the agreed facts is a reference to the defendant, BTSS: The defendant did not provide any supervision of the scaffolders working at the site nor of the scaffolding works. The subcontract agreement between the defendant and BTS did not contain any provisions in relation to the supervision of BTS' scaffolders. The defendant's Site Safety Management Plan provided that "skilled and competent supervision will be provided for all work" without identifying which person(s) would in fact be required to provide such supervision. It was the defendant's understanding that BTS would provide direct supervision in relation to its own employees. The defendant's site/project supervisor, Marc Reed ("Reed"), visited the site on average every second day and remained on site for about an hour during such visits. Such visits were for the purpose of the coordination of material to and from the site rather than for the supervision of workers provided by BTS. Reed, in his role as one of the defendant's site/project supervisors, was responsible for inducting BTS into the defendant's SWMS and then handing over that statement so that BTS would then ensure that each of its employees who were to work on the particular site/project were in turn inducted into the statement. Reed was not responsible for supervising the work undertaken by subcontractors or the subcontractor's employees. Reed's role did not include an occupational health and safety supervisory element. His role was to coordinate the transport of material to and from the site so as to make sure that equipment was at the site when needed and to observe whether the scaffolders were erecting the scaffolding in compliance with the way in which the defendant had designed it. Reed inducted Tracey and Tatham into the Waco 2005 SWMS at the site on 30 November 2005. BTS was then responsible under the subcontract agreement for ensuring Hughes and Issell were inducted into the Waco 2005 SWMS. Prior to the incident on 5 January 2006, Reed was not aware of the specific terms of the subcontract agreement between BTS and the defendant but was aware of BTS's obligations in relation to compliance with the Waco 2005 SWMS. The Waco 2005 SWMS and the subcontract agreement between BTS and the defendant required consultation, additional risk-assessment, the preparation of a specific SWMS and the conduct of a tool box talk for any unique task/work requirement not covered by the Waco 2005 SWMS. Tracey, over the course of several conversations, mentioned to Reed and to the defendant's sales representative for the project, Andrew Skopin ("Skopin") that BTS was considering various materials handling options which BTS might employ at the site for the purpose of lowering material from the scaffolding, including the use of a crane, lift and winch, without specifically deciding upon one particular option or mentioning the use of penetrations. During these conversations, Tracey did not discuss with Reed or Skopin any alterations to the Waco 2005 SWMS in light of the possible use of a winch or otherwise. As a result of discussions with Tracey, Reed and Skopin were aware that BTS was contemplating the possibility of using means other than a crane (as quoted) to lower scaffolding componentry. Skopin told BTS that if it implemented method other than the use of a crane, the defendant would still pay the amount allowed as the cost for the use of a crane as quoted by BTS. At no stage did Tracey discuss with Reed any changes to the Waco 2005 SWMS, including changes in relation to the system of work arising from the installation of a winch. The defendant's national occupational health and safety manager, Peter Pade ("Pade"), did not visit the site prior to the incident on 5 January 2006. Pade was not responsible for visiting and inspecting sites or supervising subcontractors working at sites on which the defendant's scaffolding was being supplied. The defendant's Site Safety Management Plan provided that the defendant would establish an inspection program for the site. No such program was prepared in writing. The defendant's Occupational Health and Safety Management Plan provided for the identification of an "OHS Supervisor on Site". No person is so identified. This document identified "Bradley Tracey" as the "Labour Company Supervisor". 72 It was submitted on Waco's behalf that the consumption of alcohol by Mr Hughes and Mr Issell "may have" affected their decision to climb the scaffolding standards and if so this was a mitigating factor in Waco's favour. For my part, I cannot agree. As the agreed facts reveal, Waco, through Mr Reed and Mr Skopin, was on notice that BTSS was considering the use of a winch for the lowering of scaffolding components. Under the sub-contracting agreement between Waco and BTSS there was a requirement that whenever a unique task was identified requiring a specific work procedure to be formulated (such as utilising the winch to lower the scaffolding components), BTSS would, in consultation with Waco, develop a specific SWMS for the work. In the present case, this was not done. Moreover, Messrs Hughes and Issell had no immediate means of gaining access to the scaffolding standards. As for the consumption of alcohol by Messrs Hughes and Issell prior to installing the winch, I have already made findings in relation to this issue in Delta's sentencing reasons. I adopt those findings in these reasons. In any event, Waco's submission was qualified that is, it was put on the limited basis that consumption of alcohol by the two workers "may have affected" their decision (to climb the scaffolding standards). 73 In addition, as the agreed facts record, the sub-contracting agreement between Waco and BTSS required BTSS to induct and ensure that its employees had signed off on the Waco 2005 SWMS. Mr Hughes is not recorded as signing off on the SWMS. This was because the relevant document was not on site at the time Mr Hughes was inducted. There had been an earlier break-in during the Christmas period prior to 5 January 2006. Waco was apparently not aware of this situation until after the accident. 74 Although the foregoing illustrates a number of deficiencies in Waco's system, its system of safety overall was, as earlier acknowledged, impressive, comprehensive and specifically developed to ensure the safety of personnel at the site. This finding will be taken into account in Waco's favour in mitigation of the objective seriousness of the offence and will be reflected in the penalty to be imposed. Other objective factors 75 Other objective factors relevant to the offence committed by Waco substantially mirror those "other objective factors" which I have earlier considered in Delta's sentencing reasons. I adopt those considerations and findings in these sentencing reasons. The risk to the safety of Messrs Hughes and Issell was the risk of falling through an open penetration at heights. This risk was obvious and in the circumstances well-known by Waco as its extensive safety systems demonstrate by reason of, for example, the reference in the 2005 SWMS to the risk of falling from scaffold. Moreover, given the number of cases coming before this jurisdiction dealing with falls from height through open penetrations in the construction industry, and the demolition industry, it cannot be seriously contended that the risks associated with that hazard were not known or were otherwise remote. 76 As identified in the proceedings against Delta, a number of simple, alternative measures could have been utilised to lower the scaffolding components in a safe manner such as the use of appropriate personal protective equipment. According to the agreed facts tendered against Waco, neither Mr Hughes or Mr Issell were wearing a safety harness or other fall arrest equipment while climbing the standards or while standing on the work platform or while installing the winch. Following the accident, Waco issued a new SWMS (the Waco 2006 SWMS) which specifically addressed the hazards posed by penetrations in scaffolding, the associated risk of falling from the scaffolding and the necessary steps to control that risk. One measure identified in the Waco 2006 SWMS concerned workers involved in railing off or covering and securing penetrations. The step identified for those tasks required the workers to be harnessed with a lanyard. There is no reason advanced on behalf of Waco as to why this measure could not have been implemented prior to the offence. 77 As to the probable consequences of the breach, I adopt and apply my findings on this issue in Delta's sentencing reasons. 78 Similarly, with regard to the principle of general deterrence which is applicable to Waco's circumstances in the same way as it is applicable to Delta. 79 Specific deterrence is also relevant. Waco continues to work in the industry. Like Delta, however, the extensive post-offence measures it has put in place will be taken into account in its favour when applying the principle for the purposes of assessing penalty. 80 The objective factors in combination warrant a conclusion that the offence against Waco was objectively serious, although qualified by the extent and effectiveness of its safety systems and procedures in place at the site prior to the offence. 81 Waco has two prior convictions. It therefore faces a maximum penalty of $825,000. Subjective factors 82 Waco entered an early plea of guilty, a matter acknowledged by the prosecutor. I propose therefore to assess an appropriate penalty for the utilitarian value of the offence at 25 per cent. 83 As a separate consideration from the utilitarian value of the plea, Waco is also entitled to leniency in recognition of the remorse shown by the plea of guilty. 84 Waco also co-operated with WorkCover at all times during the course of the investigation into the accident. 85 Waco has also expressed contrition for the circumstances of the offence. Mr Mill stated that about eight staff from Waco attended the funeral of Mr Hughes. Mr Mill also expressed on behalf of Waco's management, its deep regret for the accident. Following the accident, Waco has taken steps to review and improve its safety management systems in order to prevent a similar incident from occurring at its sites in NSW where scaffolding is used. These matters, in combination allow the Court to take into account this factor in mitigation of penalty. 86 The post-accident measures implemented by Waco are set out in Mr Mill's affidavit. They comprise the following steps taken immediately following the accident (extracted from the affidavit): (a) undertaking an inspection of the scaffolding at the Site by assessing and confirming that the scaffolding was safe for continued use for the job; (b) amending the Waco 2005 SWMS to expressly prohibit the creation of penetrations (as referred to above in paragraph 40), requiring the use of harnesses in prescribed circumstances and the use of one metre platforms when dismantling scaffolding (outlined further below in paragraph (f)); (c) re-inducting all scaffolders at the Site into the Waco 2006 SWMS; (d) re-submitting the Waco 2006 SWMS to Delta (on the basis that Delta would also provide the Waco 2006 SWMS to WorkCover for the purposes of satisfying the requirements of the prohibition notice issued to Delta after the incident so that work could continue at the Site); (e) undertaking (through Waco's site/project supervisors) closer monitoring of BTS's work practices at all relevant sites (and in particular, at the Site). Since 15 May 2006, Waco has not engaged BTS as a subcontractor; (f) putting in place more stringent procedures for addressing the risks of working from heights where there is a risk of falling two or more metres by: · implementing a system of work involving working platforms and ledgers (spaced one metre apart) thereby providing multiple handrails for the entire height of the scaffold; · requiring scaffolders to use safety harnesses when erecting or dismantling scaffolding near a leading edge. This requirement is despite the fact that Australian/New Zealand Standard 4576:1995 does not mandate the use of harnesses except in limited circumstances; · ensuring the use of a crane to dismantle equipment at the Site. 87 The following additional steps have been taken by Waco following the accident (also extracted from Mr Mill's affidavit): (a) requiring the principals (or, where the principal is unable to attend, a senior scaffolding employee such as a foreman or leading hand) of all subcontractors to attend monthly meetings organised and run by Waco to discuss safety-related issues. Leading hands of the subcontractors are also encouraged to attend. Subcontractors are warned that failure to attend these meetings places them at risk of not being provided with further or ongoing work from Waco; (b) disciplining subcontractors who Waco's site/project supervisors observe (during the course of their inspections of sites in accordance with the procedures outlined above in paragraph 44), as having failed to (or failed to ensure that their employees) comply with Waco's safe systems of work. For example, this would include removing subcontractors from sites and refusing to provide work to subcontractors who are observed to not comply with Waco's safe work method statements; (c) reinforcing the 'sign off' procedures for subcontractors who are currently engaged by Waco. Subcontractors are not paid for their services until all relevant paper work, including the safe work method statement, has been appropriately executed by the subcontractor and its employees; (d) undertaking audits in relation to all of the sites throughout Australia at which Waco's scaffolding was being used; (e) reinforcing the requirement that relevant Waco employees undergo risk management document training; (f) reinforcing safety training of subcontractors and relevant Waco employees through the processes outlined above in paragraph 42; (g) implementing a system of providing safety bulletins, training programs and alerts to subcontractors and Waco employees as required from time to time (including, for example, training sessions in relation to the safe use of harnesses in New South Wales and SMS alerts to all subcontractors notifying them of high-wind conditions on any particular day); and (h) undertaking periodic re-induction and re-training of site/project supervisors. 88 The foregoing subjective factors will be taken into account in mitigation of penalty. 89 The presence of prior convictions disentitles Waco from receiving leniency normally extended to an offender not adversely recorded. A submission was made on Waco's behalf that the present offence constituted an "uncharacteristic aberration": Veen v The Queen (No 2) (1988) 164 CLR 465 at 471. I cannot agree. Waco's prior convictions, although based on different factual backgrounds, nevertheless involved offences under the occupational health and safety legislation. Put on that general basis, I am unable to make the finding that the present offence constituted an "uncharacteristic aberration". I should clarify, however, if it be thought necessary, that this does not mean that a more severe penalty is warranted. The presence of prior convictions is relevant in the circumstances only to the withholding of leniency. 90 I am prepared to take into account in Waco's favour the size and scope of Waco's operation in the context of its prior history and find that Waco has a good industrial record. Victim Impact Statements 91 I adopt and apply here the remarks made in Delta's sentencing reasons with regard to the victim impact statements received by the Court from Mr Hughes' parents, Hetty and Frank Hughes, and his brother, Christopher Hughes, who read his statement onto the record. Bradley Tracey Scaffolding Services Pty Ltd and Bradley Tracey 92 It was agreed between the parties that the sentence proceedings against BTSS and its director, Mr Tracey, should be heard together. 93 BTSS, at the time of the offence, provided the labour to the site for the purposes of erecting, adjusting, and dismantling the scaffolding components. It employed Mr Hughes and Mr Issell, both qualified scaffolders (Class 1/advanced level certificates of competency). Mr Issell also held a Class 1 riggers ticket. BTSS contracted with Waco for the provision of labour. The methodology adopted for the demolition of the building at the site has been earlier set out in the proceedings against Delta. I adopt and apply the relevant material set out in Delta's sentencing reasons (at [3] to [8]) on this issue in Waco's sentencing reasons. 94 With regard to the proposed installation and use of the electric winch, the agreed facts record that Delta knew and approved of its installation and operation for the purpose of lowering the scaffolding components. Delta had considered, but decided against, the use of a crane for this purpose. Delta did not, having approved the use of the winch, conduct a risk assessment with regard to the installation and operation of the winch. 95 The relevant factual background to the accident is set out in Delta's sentencing reasons. I adopt and apply that factual background as set out (at [12], [13], [15], [17]) in Waco's sentencing reasons. 96 In order to secure the winch (to a ledge in a scaffolding bay), Messrs Hughes and Issell climbed the scaffolding standards above the open penetration on the scaffolding working deck adjacent to the roof of the building. They secured the winch while standing on the working platform which was comprised of two wooden planks positioned directly above the open penetration. After completing this task, they proceeded to climb down using the scaffolding standards. It was at this point that Mr Hughes fell through the open penetration, 33 metres to the ground and was fatally injured. 97 Climbing of the scaffolding standards was prohibited by Delta in its OHS&R Management Plan for the site. There was, however, no alternative means provided for accessing the two-plank working platform which Messrs Hughes and Issell had used while installing the winch. No ladders or stairways were in place, for example. Moreover, the two-plank working platform on which both men had been standing contained neither mid-rails, nor toe-boards, along its outside edge and at both ends. The open penetration had been created by the removal of two of four metal scaffolding planks from one bay of the scaffolding working deck on level 9 of the building. Six unsecured wooden planks had been placed across the remaining three scaffolding planks. The penetration was approximately 950 mm in length and 500 mm wide. There was, according to the agreed facts, nothing in place to prevent a person falling through the open penetration. The risk to safety 98 Given this set of circumstances, the risk to the safety of both Mr Hughes and Mr Issell was obvious, that is, the existence of an open penetration 33 metres above ground which was not encased by any midrails and which was not accessible other than by climbing the scaffolding standard, placed both men at risk of falling through the penetration. 99 The risk of falling through a penetration is also a well-known risk being one not infrequently encountered on demolition sites. 100 Mr Tracey, who represented himself and appeared on behalf of BTSS, also tendered in the proceedings an extract from an Australian/New Zealand Standard (AS/NZ 4579:1995) which deals with safe work practices to be adopted in order to minimise the risk of falling from scaffolding. The practices set out in the Standard are relevant to the type of work Messrs Hughes and Issell were undertaking at the time of the accident, that is, the installation of the winch. These procedures, relied upon by BTSS and Mr Tracey tend to confirm that both defendants were well aware of the risk to safety arising from working at heights in the vicinity, or over an open penetration. Section 9.8 of the extract entitled "Safety Harness" sets out the following information: Safety harnesses may be used to provide protection against a fatal or serious fall when a scaffolder is required to work over a void, or lean out from the scaffold or supporting structure without the protection of a guardrail; however, they can increase the risk of injury if used incorrectly or unnecessarily: Safety harnesses can be used during: · The erection and dismantling of hung scaffolds prior to or upon removal of the platform. · The fixing and removal of trolley tracks on suspension rigs. · The attachment and removal of spurs projecting from the supporting structure. · The erection and dismantling of cantilever scaffolds prior to or upon removal of the initial platform. 101 As the agreed facts document records, neither Mr Hughes, nor Mr Issell, was wearing a safety harness or other fall arrest equipment while climbing the standards or standing on the work platform while installing the winch or otherwise working in the vicinity of the open penetration. Available safety measures prior to offence 102 The agreed facts set out a number of available alternative measures and/or devices which could have been used by Messrs Hughes and Issell to minimise the risk to their safety. The following material extracted from the agreed facts document illustrates this: Alternative and more suitable mechanical devices exist for lowering scaffolding components. These include material hoists, gin wheels, scaffold jib cranes, tower cranes and scaffold wheels. Such devices are the accepted means for lowering scaffolding components in circumstances where "handballing" or "chaining" (a gang of workers forming a human chain to pass equipment from one to another) is impracticable. Such devices do not require for their operation an open penetration in the working deck of the scaffold. Issell's usual procedure for the lowering of materials from heights was to "chain" them down with a team of 15 workers. Handballing, the use of handlines, the use of gin wheels and the use of cantilevered builders' hoists are discussed in section 9 of AS/NZS 4576:1995. Compliance with AS/NZS 4576:1995 was required by a safe work method statement ("SWMS") prepared by Waco and issued on 21 November 2005 ("the Waco 2005 SWMS"). Compliance by the defendant with AS/NZS 4576:1995 was also required by the contract between it and Waco. AS/NZS 4576:1995 is incorporated in the industry code of practice Technical Guidance approved pursuant to section 43 of the Occupational Health and Safety Act 2000. In its quotation submitted to Waco, the defendant allowed the sum of $12000 for cranage. No crane was present on the site on 5 January 2006. Subsequent to 5 January 2006 a system of using a crane to lower scaffolding components placed in pallets was used at the site. Consequences of breach 103 The likely consequences of the breaches of the offence committed by BTSS and Mr Tracey were very serious. Mr Hughes suffered fatal injuries as a result of falling through the open penetration. Mr Issell's exposure to the risk of falling through the open penetration carried with it the likely consequence of a fatal injury. Systems of work prior to offences 104 The agreed facts document sets out a number of deficiencies in the system of work adopted by BTSS and Mr Tracey on the day of the offence. The relevant part of the document is extracted below. (The reference to "BTS" is a reference to BTSS.): BTS did not devise its own SWMS for the work it had contracted to perform at the site. Rather, it adopted the Waco 2005 SWMS. The Waco 2005 SWMS did not identify an electric winch as a device to be used for lowering scaffolding components. Rather, the Waco 2005 SWMS stated in various contexts dealing with the movement of scaffolding: Pass scaffold by hand with persons not more than 3.0 metres apart (vertically) OR use crane or hoist (emphasis added) The Waco 2005 SWMS provided no instruction for the work method to be adopted for the task of securing the winch being performed by Hughes and Issell on 5 January 2006. The Waco 2005 SWMS did not identify the hazard posed by penetrations in scaffolding, the associated risk of falling from the scaffolding and the necessary steps to control that risk. Site-specific risk assessments prepared by Delta dated 17 October 2005 and 21 December 2005 identified penetrations as a hazard with falls of persons or materials through the penetration as potential outcomes. The subcontract agreement between BTS and Waco provided that: 17 Work Method Statement/Job Safety Analysis (a) Waco Kwikform has developed a Work Method Statement in respect of the Works ("the Work Method Statement") a copy of which will be made available to the Subcontractor. ... (c) The development of the Work Method Statement will not relieve the Subcontractor from its obligation to develop its own work method statement ... (d) Wherever a unique task is identified requiring a specific work procedure to be formulated the Subcontractor will in consultation with Waco Kwikform develop a specific work method statement for such work ... The Waco 2005 SWMS in dealing with the tasks of erecting, adjusting and dismantling scaffolding identifies a risk of falling from the scaffold and stated respectively: Access scaffold by ladder, stairs or hoist Do not climb the standards (Ref. 5.0) Access scaffold by ladder, stairs or hoist Must not climb the standards (Ref. 6.0) Access scaffold by ladder, stairs or hoist Do not climb the standards (Ref. 7.0) On 13 January 2006, Waco prepared a revised SWMS ("the Waco 2006 SWMS") in response to a prohibition notice issued by the prosecutor. The Waco 2006 SWMS identified the hazard posed by penetrations in scaffolding, the associated risk of falling from the scaffolding and the necessary steps to control that risk. In dealing with controls, the Waco 2006 SWMS stated (in section 6.0A): Workers will be instructed that should they encounter any penetration (be it in the scaffold deck or elsewhere in the work environment): (i) They should not have access above any such penetrations. (ii) If they are required to work above the penetrations, they should ensure the handrails (including mid-rails) are installed to prevent access to the penetration, or that the penetration is covered and secured; and (iii) Any workers involved in railing off or covering and securing such penetrations must be harnessed with the lanyard while performing such work. The Waco 2006 SWMS also identified the hazard posed by the task of relocating deck boards, the associated risk of falling from the scaffolding and the necessary steps to control that risk. No SWMS existed for the winch installation task being performed by Hughes and Issell. No site-specific risk assessment was carried out for the task of installing and dismantling the electric winch. 105 BTSS had no available supervisor on the day of the accident. Its regular supervisor, Bradley Tatum, was absent that day on scheduled leave. 106 Mr Hughes is not recorded as signing off on the Waco 2005 SWMS or on any other SWMS. No discussions took place between Mr Tracey and Messrs Hughes and Issell concerning the issue of access when installing the winch. Mr Issell had no training in the system of using the electric winch. 107 These matters demonstrate obvious flaws in the system and procedures utilised for the installation and intended performance of the winch. They also contribute to the objective seriousness of the offences. 108 Other matters were brought to the attention of the Court by Mr Tracey with a view to mitigating the objective seriousness of the offences. 109 According to Mr Tracey, BTSS did utilise a crane in the erection stage of the scaffolding. He said that a SWMS had been specifically devised in relation to that task. He also said that "we were asked to stop using the crane". The agreed facts document provides some support for Mr Tracey's assertion with regard to the use of the crane. The document records that Mr Tracey allowed the sum of $12,000 for cranage in the BTSS quotation to Waco. 110 Mr Tracey also said he discussed the proposed work method for lowering the scaffolding components on 5 January 2006 with Mr Hughes and Mr Issell. Both men were "advanced scaffolders" and neither, according to Mr Tracey, saw problems with the method proposed (using the winch). Mr Tracey said that if there had been a crane on site it would have been utilised for the task. 111 Mr Tracey left the site after discussing the proposed work method with Mr Hughes and Mr Issell because he said he had other things to do and he had no reason for concern because both men were experienced and qualified scaffolders. He also said he respected Mr Hughes' opinion. Mr Hughes, according to Mr Tracey, was a safety advisor with other companies. Mr Tracey also ventured to say that there was nothing inherently unsafe about using the winch for lowering the scaffolding components. Chaining was not a commercially viable alternative because, "of the size and duration of the job". It would have required about 15 workers to undertake the task. 112 Mr Tracey also said that BTSS conducted toolbox meetings with the workers. 113 Accepting these matters advanced in mitigation by Mr Tracey as accurate (noting that many of the matters raised are supported by the evidence), the Court is prepared to take them into account as mitigating, to some extent, the otherwise objective seriousness of the offences. 114 BTSS and Mr Tracey have no prior convictions. BTSS therefore faces a maximum penalty of $550,000 and Mr Tracey, $55,000. Subjective factors 115 Both defendants also entered pleas of guilty at the first reasonable opportunity. I propose to award a discount of 25 per cent of the penalties to be imposed for the utilitarian benefit derived from the pleas of guilty. 116 As a separate consideration, each defendant is also entitled to leniency in recognition of the remorse shown by the pleas of guilty. 117 Mr Tracey also made the following statement in oral submissions on behalf of himself and BTSS: I am a second generation scaffolder and have been in the scaffolding industry all my working life, about 31 years. During this time both myself and my family have been employers as well as employees in the industry. Over the hundreds and thousands of scaffolding man hours we have never, before this accident, had any serious incidents. Before this accident I was blessed with a happy home life, a highly respected and successful business and financial security. I had pride in myself, in conducting my business in the correct and proper manner. This included ensuring all my experience, obligations and workers entitlements. We were all direct employees and not subcontractors. They were all fully covered. I have the utmost empathy for Paul Hughes and his family and share the pain and distress of his untimely death. However, as a result of this terrible accident I now stand before you having lost my family, my marriage, my home and a business and, to some degree, my reputation and dignity. 118 The statement, although acknowledging the impact of Mr Hughes' tragic death on members of Mr Hughes' family, does not appear to fully recognise the culpability of BTSS or Mr Tracey's culpability in relation to the circumstances of the offences. This makes it difficult to assess whether either defendant should benefit on penalty by reason of having shown contrition. I do not therefore propose to consider further whether BTSS or Mr Tracey have shown contrition for the commission of the offences. (See for discussion of this issue, which I adopt in these sentencing reasons: Inspector Stephen Cooper v Franklin Alden Conveney and Another [2008] NSWIRComm 80 at [34] to [37].) The statement, however, attests to the good corporate reputation of BTSS and the good reputation of Mr Tracey within the industry which will be taken into account in mitigation of the penalties to be imposed. 119 The absence of prior convictions also entitles both defendants to leniency. 120 Both defendants also fully co-operated with WorkCover in its investigation of the offences. Victim Impact Statements 121 I adopt and apply here the remarks made in Delta's sentencing reasons with regard to the victim impact statements received by the Court from Mr Hughes' parents, Hetty and Frank Hughes, and his brother, Christopher Hughes, who read his statement onto the record. Respective roles 122 The prosecutor submitted that the culpability of the four defendants before the Court was equal. The grounds upon which the submission was put was that the risk to safety was the same with regard to the circumstances of each offence and similar opportunities were available to each defendant to eliminate the risk, that is, by ensuring there were no penetrations which exposed workers at the site to risk and that the workers had harnesses or other fall arrest equipment available for use. The prosecutor further submitted on the issue: ... all three companies, whether they were the direct employer or whether they were merely a contractor on site, all three companies bore the responsibility in respect of safety at the same place. The simple fact that Waco chose to do the work, for example, by recourse to subcontractors, that is by not directly employing people, did not change its obligation to ensure safety at the site. The fact that Mr Tracey chose to employ people did not change his responsibility or his company's responsibility in respect of safety. The obligation was in respect of all three companies the same obligation, that is, to ensure that the work that was being conducted was risk free or that all three companies had the same obligation to make the work site safe. Section 8(1) and section 8(2), I submit, should not be seen as less or more serious offences. They are both offences that Parliament has said are punishable by the same fine, and the same fine for a second offence under each section. So simply because Waco and Delta exposed people to the same risk, and I emphasise the same risk, but chose to do so by way of subcontracting people, should not be seen as a matter that either mitigates the offence or makes it one that is less serious. That is the proposition I have tried to put in all three prosecutions. I put something slightly different in respect of Waco because of some of the things in the submissions and affidavit material but not relevant to that. 123 Neither Delta, BTSS or Mr Tracey made any submissions with regard to their respective culpabilities by reference to their roles and occupational health and safety responsibilities at the site. Waco made submissions on the issue but its ultimate submission was expressed as follows: If your Honour is not inclined to view the culpability of the defendant in all of the circumstances as being lesser, in my submission, it should be no more than equal to the other parties. 124 Waco's submissions on its culpability, or role, in relation to the circumstances of the offence first sought to emphasise what was described as "respective levels of control over the site". This was a reference to the "level of control" Waco exercised over its subcontractor BTSS, and the employees of BTSS, with particular regard to the creation of the open penetration on level 9, the lack of access to that area and the level of supervision provided by BTSS to Mr Hughes and Mr Issell, "at the time they were left alone and the climbing of the scaffolding standards". Waco, however, acknowledged that these matters, "go to the immediate cause of the accident" and were not therefore being relied upon on the issue of which defendant was more, or less, culpable. Rather, it was submitted by Waco there were "other" causative factors "which were less immediate in time but nevertheless contributory". These other factors were said to include the toolbox meetings on 3 and 5 January 2006 (before the accident) during which the proposed installation and use of the winch was discussed in circumstances where Mr Pavone (Delta's site supervisor) was aware of the intended installation and use of the winch, but had no prior experience of a system which utilised a winch to lower material through an open penetration. 125 I would add on this aspect that it was an agreed fact in Waco's agreed facts document that Delta also failed to conduct a risk assessment concerning the installation and operation of the winch. Waco also submitted that BTSS, following the decision to install and use the winch, was not asked (by Delta) to provide a SWMS, or any form of risk assessment with regard to the winch. Waco, as the agreed facts tendered against it records, did not "expressly authorise" the use of the winch. It would appear from the agreed facts, however, that Waco, through its sales representative for the project, Andrew Skopin, was at least aware that BTSS, on 5 January 2006, was considering a number of materials handling options for lowering the scaffolding components, which included the use of a "lift and winch". 126 Waco submitted, essentially, that its role in the circumstances of the offences was "more distant in time" than Delta's role or involvement, and therefore, by implication, that it was less culpable. In developing the submission, Waco contended that its role was limited to an omission in the Waco 2005 SWMS of a reference to the systems to be devised for the installation and use of the electric winch, or to an absence of sufficient "identification" that a winch was not to be used, "unless certain steps were taken". 127 On the site, a building was being demolished. Various corporate entities were involved in the project. The duties and responsibilities of each entity were organised, contractually, through a process of devolution, a not unusual occurrence on many contemporary construction and/or demolition sites. Delta was the principal contractor at the site with all the statutory obligations attendant upon that particular role. Waco was contracted by Delta to provide the scaffolding equipment and labour for the purpose of demolishing the building. BTSS was sub-contracted by Waco to provide the labour for the purpose of erecting and dismantling the scaffolding. 128 All of these corporate entities, and Mr Tracey as the director of BTSS, had statutory obligations to ensure the safety of all personnel at the site. It was not contended otherwise by Waco (or by any of the other defendants). Each defendant also failed to ensure that safe work methods were devised and implemented for the work being undertaken by Mr Hughes and Mr Issell on 5 January 2006 with regard to the installation and use of the winch. The supervision by each defendant of the scaffolding workers and of the scaffolding works was inadequate and in Waco's case, non-existent, on 5 January 2006. The agreed facts against Waco record that its Site Safety Management Plan (the Plan) provided that "skilled and competent supervision will be provided for all work", but the Plan failed to identify which person(s) would be required to provide the supervision. It was Waco's understanding that BTSS would supervise its own employees. Each defendant failed to ensure that there were no open penetrations through which persons could fall while working at height. Each defendant also failed to ensure that BTSS employees had fall arrest equipment (such as safety harnesses) necessary to prevent falls from heights. 129 On these matters, which substantially reflect the particulars in the charges to which each defendant entered a plea of guilty, the finding is available that the respective culpabilities of each defendant is equal. 130 No defendant sought to rely (as was suggested by the prosecutor with regard to Waco's culpability) on a concept of "passing on" statutory obligations with regard to safety through contractual delegation. 131 The Court finds therefore that the role of each defendant in the circumstances of the offences was equal. Penalties 132 In determining penalties against the defendants, I have taken into account the objective seriousness of the offences, the maximum penalties, the factors in mitigation described above, the absence of prior convictions with regard to BTSS and Mr Tracey, and the respective culpabilities of the defendants. These factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999, in particular s 21A.

Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Parties

Cases Cited (8)

Cited By (4)