Inspector Bruce Dowling v Tieback Pty Limited

PROSECUTOR Mr B Docking of counsel SOLICITOR Mr G Henderson LEGAL REPRESENTATIVES: Phillips Fox Lawyers

DEFENDANT Mr J Lee James Lee Solicitors

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSIONOF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON, J VICE-PRESIDENT 2 AUGUST 2002

INSPECTOR BRUCE DOWLING v TIEBACK PTY LIMITED PROSECUTION UNDER SECTION 15(1) OF THE OCUUPATIONAL HEALTH AND SAFETY ACT 1983

JUDGMENT Extempore [2002] NSWIRComm 220

1 This matter concerns a prosecution by Inspector Bruce Dowling of the WorkCover Authority of New South Wales, of Tieback Pty Limited (ACN 002716165) (the defendant) alleging a breach of s15(1) of the Occupational Health and Safety Act 1983. The prosecution is continued, after the passage of the Occupational Health and Safety Act 2000, by the operation of cl13, Div 3 of Sch3 of the Savings and Transitional Provisions of that Act.

2 The matter concerns an accident which occurred on 10 November 1999 at 68 to 72 Evaline Street, Campsie, during the course of the defendant erecting a smoke wall as part of the refurbishment of a Woolworths store at that location. Mr Greg Krivoshev, an employee of the defendant at that time, fell through a ceiling to a concrete floor whilst carrying out work on behalf of the defendant in the construction of the wall.

3 The matter commenced by an application for an order pursuant to s4 of the Supreme Court (Summary Jurisdiction) Act 1967. An order was made under that section on 13 November 2001.

4 The charge contained in the application was in the following terms: "It is alleged that the Defendant, Tieback Pty Limited (ACN 002 786 165), an employer, breached Section 15(1) of the Occupational Health and Safety Act 1983 on 10 November 1999, at premises located at 68-72 Evaline Street, Campsie in the State of New South Wales ("the premises") in that it failed to ensure the health, safety and welfare of its employees at work, in particular, Greg Krivoshev, in that it failed to provide or maintain a system of work that was safe and without risks to health for the installation of a smoke wall in the ceiling of the premises between the store and warehouse ("the works")."

5 The particulars of the charge were as follows: "Particulars of the Defendant's breach are: (a) It failed to conduct an adequate risk assessment prior to carrying out the works; (b) It failed to provide adequate health and safety induction training to employees carrying out the works; (c) It failed to ensure that its employees received adequate information concerning the works; (d) It failed to ensure an adequate system of fall protection for employees carrying out the works; (e) It failed to ensure that employees were adequately supervised whilst carrying out the works; (f) As a result of the Defendant's failure, Greg Krivoshev received serious injuries."

6 A statement of agreed facts was admitted into evidence by consent in the following terms: (1) At all material times the Prosecutor was an Inspector appointed under Division 1 of Part 5 and empowered by Section 106 of the Occupational Health and Safety Act 2000 to institute proceedings in this matter (or in the alternative an Inspector appointed under Division 4 of Part 3 and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter). (2) It is the Prosecutor's belief, based on information provided to him by solicitors PricewaterhouseCoopers Legal, that the operation of Clause 13, Division 3 of Schedule 3, the Savings and Transitional provisions of the Occupational Health and Safety Act 2000 ('The Act'), in respect of offences committed against the former Act before its repeal or in respect of any related matter that continues to have force or effect and applies whether any such proceedings are pending on the repeal of the former Act or whether such proceedings are instituted after the repeal. (3) The Prosecutor has conducted investigations into the circumstances surrounding an accident which occurred on 10 November 1999 at 68-72 Evaline Street, Campsie in the State of New South Wales ('the premises') and from those investigations he is able to state the following either from his own knowledge or upon information and belief. (4) At all material times the Defendant Tieback Pty Limited (ACN 002 786 165) was an incorporated company with its registered office at 15 Beatrice Street, Auburn in the State of New South Wales. (5) At all material times the Defendant: (a) employed Leonid Chuproff as a manager, Trent Nathan Wooldridge as a labourer and Greg John Krivoshev as a plasterer; (b) was conducting at the Woolworths refurbishment project at 68-72 Evaline Street, Campsie in the State of New Wales ('the premises') which involved constructing a smoke wall between the store and the warehouse in the ceiling area of the premises; (c) contracted with Mark Anthony Shigelski and MSG Carpentry Pty Limited. (6) On 10 November 1999 Greg Krivoshev, a labourer and plasterer ('Krivoshev') sustained serious injuries when he fell through a ceiling to the concrete floor of at least 4.18 metres below where he was working. Krivoshev suffered bruising to his left ankle, right heel, left knee, a fractured elbow, pain in his left wrist, back injury and later experienced dizziness and severe headaches. (7) As a result of the Prosecutor's investigations in this matter, he concluded as follows: (a) At the time of the accident Krivoshev was being assisted by Trent Woolridge, Matthew Griffin and Mark Shigelski in the construction of a smoke wall between the store and warehouse in the ceiling area at the premises. (b) The area at the premises in which Krivoshev was working was extremely difficult to gain access to and move about in. Krivoshev had to climb over the top of timber joists in order to gain access to the work area which was located in the ceiling cavity. Villaboard sheets measuring approximately 1.2 metres by 3.6 metres x 9mm thick ('the villaboard') were lifted up with a scissor lift to the work area. Shigelski and Krivoshev then had to move the villaboard about the work area and negotiate various obstructions to place the villaboard into position. Krivoshev was standing on a bulkhead at the time of this process being carried out. Krivoshev, while trying to manoeuvre a sheet of villaboard into place with the assistance of Shigelski, put his end of the villaboard down to secure his footing as he was walking on top of the joist. It was during this process that Krivoshev fell through the suspended ceiling to the floor of at least 4.18 metres below. (c) Plywood sheets had been laid across some joists to form a false floor along the length of the wall however the floor was incomplete in places where there were duct work and other obstructions protruding through the bulkhead. (d) There was a scissor lift for the movement of materials and for the workers to access the work area in the ceiling. (e) Krivoshev was treated at the site by ambulance paramedics and allowed to continue with his work on the day. (f) As a result of the accident Krivoshev suffered bruising to his left ankle, right heel, left knee, a fractured elbow, pain in his left wrist and a back injury. (g) Krivoshev over the next few weeks developed back pain and severe headaches which were later attributed to his accident. (h) Apart from the plywood sheeting referred to in paragraph 7(c), there was no system of fall protection in place which would have prevented a person falling through the ceiling to the floor below. (i) There was a temporary walkway or platform from the scissor lift to the work area however there were no handrails or safety harnesses provided to employees. (j) There were no written systems of work in place for persons working at heights and there was no adequate risk assessment carried out by the Defendant for the work being undertaken. (k) There was no training provided to employees working at heights nor could the company provide any documentation that would indicate any training of any description had been provided for any procedure. (l) The Defendant failed to provide adequate supervision to its employees whilst working in a hazardous environment without a suitable fall protection system being in place. (m) Since the accident the Defendant has embarked upon developing policies, systems and procedures for all tasks that employees may have to carry out on site. Additionally the systems will be documented and training provided to all employees who work for the Defendant. (n) Another strategy that the Defendant indicated would be utilised is that all sub-contractors carrying out work for the Defendant will have to produce documented method statements, systems of work and risk assessments before they are allowed to commence work on projects. The Defendant also indicated that it would be scrutinising various full arrest systems for fall protection that would be suitable to use in conjunction with training program. (8) The Defendant, Tieback Pty Limited (ACN 002 786 165), an employer, breached Section 15(1) of the Occupational Health and Safety Act 1983 on November 1999 at the premises located at 68-72 Evaline Street, Campsie in the State of New South Wales ('the premises) in that it failed to ensure the health, safety and welfare at work of its employees, in particular Greg Krivoshev, in that it failed to provide or maintain a system of work that was safe and without risks to health for the installation of a smoke wall in the ceiling of the premises between the store and warehouse ('the works'). Particulars of the Defendant's breach are: (a) It failed to conduct an adequate risk assessment prior to carrying out the works. (b) It failed to provide adequate health and safety induction training to employees carrying out the works. (c) It failed to ensure that its employees received adequate information concerning the works. (d) It failed to ensure an adequate system of fall protection for employees carrying out the works. (e) It failed to ensure that employees were adequately supervised whilst carrying out the works. (f) As a result of the Defendant's failure, Greg Krivoshev received serious injuries.

7 In addition to the agreed statement of facts, the prosecutor tendered four colour photographs. The defendant relied in mitigation upon the evidence of Mr Leonid Chuproff, the manager of the defendant. There was no contest in the evidence that the work site presented difficulties of access, including the fact that the roof cavity where the work was performed contained air conditioning ducts, pipes, fittings and other obstacles, and that the work was carried on at a considerable height (above four metres). There was not any dispute that an assessment had been made of the site by the defendant before commencing work and it was decided to lay plywood sheets on top of the bulkhead to form a walk way and partial false floor. Further, it was agreed that the sheeting so laid (which did not cover the entirety of the ceiling or the work space) would not prevent the risk of the workers falling through the ceiling (which was a suspended ceiling). Indeed, Mr Lee, solicitor, who appeared for the defendant, conceded, properly in my view, that there was no arrangement in place as would eliminate that risk. I say properly in this context having regard at least to paragraph 7 (h) of the statement of agreed facts.

8 There was a dispute on the evidence as to whether or not the mechanism suggested by Inspector Dowling to eliminate the risk of falling were capable of installation or potential use. The Inspector gave evidence that the following systems would have eliminated the risk of falling: (1) A safety harness system described in the agreed statement of facts as a fall, arrest system; (2) A system of railings or the like accompanying the plywood flooring and (3) The erection of scaffolding.

9 I do not consider that, on the evidence, the last of these three alternatives really offered, in the circumstances of this project, a viable risk avoidance system. However, I consider the other systems were available to prevent the risk occasioned by the defendant. I have formed this view having regard to the Inspector's evidence. He has a wealth of experience and qualifications in this area. I have made allowance for him not having directly examined the site, but he was assisted in his considerations by access to the agreed statement of facts and relevant photographs. On balance, when taken with the cross-examination of Mr Chuproff, I prefer the Inspector's evidence in this respect, to the extent of any conflict.

10 In any event, the penalty to be imposed must be assessed by reference to the offence (which in this matter is particularised in paragraph 8 of the agreed statement of facts) as charged. It is the risk of injury, rather than the cause of the accident or the mechanisms which may be taken or put in place to avoid it, that is the primary consideration in the assessment of culpability.

11 I have had regard to the submissions made by the prosecutor and the defendant in this matter. There does not appear to be any serious controversy in those submissions as to issues of fact or principle. I will not, therefore, endeavour to summarise them, but I am grateful for the assistance provided to the Court in that regard.

12 As to general principles, I adopt my recent statement of them in Inspector Jose Barbosa v Newstart 150 Pty Ltd trading as Stylewise Interiors [2002] NSWIRComm 64 at [61] - [63], and emphasise that the primary factor to be considered when determining the appropriate sentence under the Act is the objective seriousness of the offence, that is, the nature and quality of the particular offence charged.

13 Subjective factors which mitigate the seriousness of the offence must be taken into account. In this case, I consider there are considerable factors of that kind weighing in favour of the defendant.

14 The risk to safety occasioned by the defendant in this matter is the risk that a worker may fall while manoeuvring 'Villaboard' in the roof cavity where there is inadequate protection against falling. There was, in my view, an inadequate system for preventing an employee falling from a substantial height and, therefore, incurring serious injury.

15 The offence is, in my view, a serious one. I have reached that view having regard to the failures identified at paragraph 8 of the statement of agreed facts. However, what is of paramount consideration is the failure to provide any or sufficient fall protection of the means identified by Inspector Dowling with respect to safety harnesses, safety railings or the provision of adequate covering of the subject area by plywood sheeting. Those risks were obvious and foreseeable. They were capable of remedy, such as by a fall/arrest system, which was well-known and available in the industry and, ultimately, in due course, pursued and acted upon by the defendant after the accident.

16 The defendant made a risk assessment in this matter and, in many respects, in that regard, realised the actual dangers occasioned by the work in question, but took remedial steps which were well short of adequately preventing the risk of falling.

17 The duty to prevent risk under the Act, as properly submitted by Mr Docking of counsel, who appeared for the prosecutor, is pro-active. The system of work chosen in this case was plainly inadequate and that is a factor which must also be taken into account in the assessment of the objective seriousness of the offence.

18 I also note the circumstances of the accident. The risk of serious injury from a fall at a substantial height is relevant as a manifestation of the gravity of the potential risk to safety, flowing from the breach and the culpability of the defendant. (See Newstart, at [95]).

19 I note finally as to the objective features that the maximum penalty is $550,000 and general deterrence is an applicable consideration. (Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at [71] to [80]).

20 With respect to general deterrence I have particularly paid regard to the inherent dangers of work in the construction industry (and more particularly, the performance of work at a height in that industry) and the Construction Safety Regulations.

21 I turn to the consideration of specific deterrence. In my view, and having regard to the decision in Capral Aluminium, specific deterrence is an applicable consideration in this matter, although it will be a reduced one because of the evidence that the defendant has moved into a state of relative inactivity in relation to the construction industry, and what appears to be the diminishing financial returns to the defendant as a result of that determination, accompanied, it would appear, by the retirement of the principals of the defendant.

22 I now turn to the consideration of the particular subjective features in this matter. In my view, there are quite significant subjective features, as earlier referred to, which should result in a substantial discounting of penalty. Those factors may be summarised as follows: 1. The plea of guilty was entered at the earliest opportunity and, with respect to the plea of guilty, I have formed the view that the defendant is both contrite and demonstrating substantial remorse. 2. As was conceded by the prosecutor, the defendant has provided the WorkCover Authority of New South Wales with substantial cooperation: 3. The defendant has no prior criminal history, and significantly, despite a considerable period of operation, has not been known to the Court. In short, I consider that the defendant has demonstrated itself to be a good industrial citizen from a safety vantage point under this Act. 4. I have had regard to the steps taken by the defendant after the incident which are referred to in paragraph 7 of the agreed statement of facts. 5. A factor which I consider to be of considerable importance is that the defendant offered assistance to the injured worker following the accident.

23 There is one final matter that I should attend to prior to considering the sentence appropriate in this matter. That question concerns the financial means of the defendant.

24 The relevant considerations in this respect, as a matter of principle, are to be found in my judgment in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) IR 284 (commencing at [83]).

25 The evidence in this respect is not entirely satisfactory. It falls to the defendant in proceedings such as these to provide evidence as to its financial means if the defendant wishes to have that factor taken into account in sentencing. However, on balance, and having regard to the affidavit of Mr Chuproff (and the cross-examination of him), I consider that a case has been made out demonstrating the lack of financial means of the defendant.

26 I am satisfied that the defendant has relevantly a turnover of less than $500,000 throughout the most recent history of the company, which turnover has diminished to a point reflecting the company's relative inactivity. In that result, I will, as it were, give full effect to that consideration in the assessment of penalty.

27 The Court is required in these proceedings to make an assessment of costs: WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd (2001) 110 IR 351. I note, in that respect, the prosecutor applied for costs. The application was not resisted, and the quantum of costs was agreed at the sum of $6,000. I note as well that the prosecutor applied for moiety of the penalty in this matter which application was not opposed.

28 Having regard to the objective features of this matter and, further having regard to the various subjective features earlier referred to, I consider that the penalty in this matter should be $35,000. I have allowed the defendant, having regard to R v Thomson (2000) 49 NSWLR 383, a discount of 25 per cent in relation to the relevant subjective features.

29 In the result, I make the following orders: 1. The defendant is fined in the amount of $35,000 with moiety thereof to the prosecutor. 2. The defendant shall pay the prosecutor the sum of $6,000 as costs of the proceedings.

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