Inspector Chadwick v Bruce's Brush Painting

Inspector Chadwick v Bruce's Brush Painting - [2004] NSWIRComm 60 - NSWIRComm 2004 case summary — Zoe

[13]

7 An agreed statement of facts was provided to the Court. It is unnecessary in the circumstances to refer extensively to the agreed statement other than in the following respects: 28. Prior to the incident involving Jack Scott, Denbur did not provide Bruce's Brush Painting with a SWMS [safe work method statement] for the tasks to be conducted on the roof. 29. Behrouz Hashemi ("Hashemi") was the Director of Bruce's Brush Painting at the relevant time and sub-contracted Scott to paint the internal, external walls and the roof. 30. At no time on or prior to 18 April 2001 did Bruce's Brush Painting provide a SWMS to Denbur. 31. On 18 April 2001, Hashemi provided Scott with a harness. Hashemi attempted to give Scott instructions in relation to the harness by providing him with the manufacturer's instructions in its use and requesting Scott to try on the harness. 32. No induction training was provided to Scott. 33. Scott i. was not required to provide a risk assessment for the work he undertook on 18.4.01; ii. was not required to provide a work method statement for the painting and cleaning of the roof; iii. was not provided with a risk assessment; iv. was not provided with a work method statement; v. was not required to undertake any formal induction training prior to commencing the work; vi. was never given an induction training course for the work at the residence; vii. was provided with a harness by Hashemi but no approved anchor system; viii. was not given sufficient instruction or training in how to wear the harness; ix. if he had intended to use the harness he did not know how to attach a safety line to the roof. 34. Neither Denbur, Mitchell [Ernest Mitchell - alleged to be the project manager] nor Bruce's Brush Painting at any time prior to the accident provided any training, instruction or safe procedure (system) to Scott to ensure his safety. Hashemi provided him with a harness without any formal instruction or prior training. There were no rails, scaffolding or trellises to provide some means of protection to persons working on the roof.

[17]

Mr Hashemi purchased a brand new harness before the work was due to commence on the roof. Mr Hashemi said in his affidavit: I visited the site and delivered the harness to Mr Scott. I provided the harness to him and asked him to try it on. I watched him adjust the straps to ensure that it fitted him correctly. I showed him the instructions contained in the box and I spoke to him about his knowledge of harnesses and he said words to the effect: "I have been in the trade for 15 years. I know how to use it". We discussed anchoring points and I then said words to the effect: "You should be able to get to the lower levels of the roof with the ladder and roller. To get onto the roof, use a rope around the chimney and attach the harness to the rope." I then said words to the effect: "Do you have a rope?" He then showed me two ropes which appeared suitable for the work. I then saw him inspect the hooks on the lead of the harness to which he was to attach the rope. At this time and all times up until the incident there was no scaffolding around the edge of the roof or anywhere else on the building. As far as I am aware the carpenter referred to earlier in my affidavit had been working on the roof without a scaffold. In preparing my tender on behalf of the Defendant for the work, I did not quote for provision of scaffolding which I considered the obligation of the principal contractor. I decided to provide a harness to Mr Scott. After the accident Mr Hashemi said he took the following steps: I made arrangements to visit Mr Scott that evening as I was concerned about him. When I visited Mr Scott he was at his home. We spoke about the incident and he said words to the effect: "I put my foot in the wet paint and slipped." I then inquired as to whether he had been wearing the harness and said words to the effect: "Why weren't you wearing the harness?" He said words to the effect: "I didn't need it". It was obvious that Jack was in a great deal of pain and I then drove him back to Wollongong Hospital for any further treatment required.

[30]

14 Ms A F Backman of counsel appeared for the prosecutor. Ms Backman addressed the principles and relevant case law relating to sentencing under the Occupational Health and Safety Act. In relation to the offence which is the subject of these proceedings Ms Backman submitted: · Any penalty should have regard to the need for general and specific deterrence. · The risk of injury was both obvious and foreseeable. No safe work method statement for work specific to painting the roof was ever generated by anyone at any time on or prior to the day of the accident. Mr Scott was simply handed a harness by the defendant but without the means of anchoring it securely while on the roof. Where there is a risk to safety that was both reasonably foreseeable and obvious this adds to the overall seriousness of the offence. · It will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible. With respect to the availability of simple and straightforward steps to remedy defects as a factor going to the objective seriousness of the offence, it was open to the defendant at any time prior to the accident when providing the harness to Mr Scott to ensure he had an appropriate and safe anchoring system. The defendant could also have made enquiries as to the availability of scaffolding. The day after the accident scaffolding was in fact erected at the site. · The gravity or otherwise of the potential risk to safety flowing from a breach of the OHS Act is relevant as a measure of the gravity of the breach and the culpability of a defendant. · The Act requires a pro-active approach on the part of an employer to safety particularly in an industry which may be very dangerous or perhaps even inherently unsafe. The terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk of safety has arisen and requires remedy. Section 15 limits considerably the ability to rely upon previous experience as to either liability or culpability. The obligation under s 15 means it is essential that an employer should be proactive and not reactive; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare. · The defendant has no prior convictions. · The defendant is entitled to have taken into account, as mitigating the objective seriousness of the offences, its plea of guilty. In the present circumstances, the defendant has pleaded guilty at the first reasonable opportunity. · The defendant was willing to attend a conference with the prosecutor's legal representatives and give evidence against a co-defendant, Ernest Alfred Mitchell. · The prosecution applies for its costs and moiety.

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Judgment (54 paragraphs)

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