Inspector Chadwick v Denbur Constructions Pty Limited

PROSECUTOR Ms A F Backman of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr R Moore of counsel Solicitor: Mr M McDonald Maguire & McInerney Solicitors

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J

INSPECTOR CHADWICK v DENBUR CONSTRUCTIONS PTY LTD Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 195

1 Denbur Constructions Pty Ltd ("the defendant") has pleaded guilty to a breach of s 16(1) of the Occupational Health and Safety Act 1983. This judgment concerns the penalty to be imposed for that offence.

2 The defendant had been contracted by the State Rail Authority to renovate and restore the stationmaster's residence at Unanderra in the State to its 1888 style, including the external painting of the residence. The defendant contracted Bruce's Brush Painting Services Pty Ltd to undertake the painting work. Jack Robert Scott was self-employed and sub-contracted to the Bruce's Brush Painting to paint the roof of the residence.

3 On 18 April 2001, Scott was painting the eastern side of the roof of the residence next to the chimney when he slipped and fell about 5.4 metres from the roof and down a rail embankment to the rail ballast surface. He sustained serious injuries including a broken arm, broken leg and facial injuries. Bruce's Brush Painting Services was charged in relation to the incident. It pleaded guilty and a fine of $50,700 was imposed: Inspector Chadwick v Bruce's Brush Painting [2004] NSWIRComm 60. 4 Inspector Christopher Chadwick ("the prosecutor") of the WorkCover Authority of New South Wales prosecuted the defendant under s 16(1) of the Act. Section 16(1) provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

5 The charge under s 16(1) was that the defendant failed to: Ensure that persons not in the defendant's employment, in particular, Jack Robert Scott, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work, contrary to section 16(1) of the Occupational Health and Safety Act 1983.

6 The particulars of the charge alleged that the defendant "failed to provide at the said site a safe system of work for working at height painting the roof of the said residence".

7 Agreement was reached between the prosecutor and the defendant on a statement of facts. The statement provided the following information (formal parts omitted): 3 At all material times the Defendant was an employer undertaking work within the building and construction industry. 4 The Defendant as principal contractor entered into a contract with the SRA to perform building and construction work by way of renovation and repair of the former Station Master's Residence located at No 1 Berkeley Road, Unanderra, New South Wales ("the place of work"). 5 In order to perform the building and construction work the Defendant entered into contracts with a number of persons including Bruce's Brush Painting Services Pty Ltd ("the contractor"). The contract as between the Defendant and the contractor required the contractor to perform all interior and external painting at the site. 6 The contractor was required under the terms of the contract to "provide all labour, tools, materials and equipment necessary to carry out complete internal and external painting including roof in accordance with specification and colour schedule". 7 The contractor entered into a contract with Jack Robert Scott trading as Mr Jack Robert Scott ABN 68501772056 ("the subcontractor") to provide labour. 8 On 7 February 2001 the Defendant as part of the contract between it and the SRA sent to the SRA's project manager Emco Building Consultants ("Emco") various Safe Working Method Statements (SMWS), including as to painting. These SWMS were generic and not site specific.

9 The performance of the external painting work required persons to work at height upon the roof.

10 The risk to safety was that persons engaging in such work could fall from the perimeter of the existing roof.

11 On 18 April 2001 at approximately 3.45pm Jack Scott whilst painting the eastern side of the roof of the residence slipped and fell about 5.4 metres from the perimeter of the roof and down a rail embankment to the rail ballast surface.

12 As at 18 April 2001 there existed an Industry Code of Practice "Safe Work on Roofs, Part 2 - Residential Buildings" (Annexure A).

13 The Defendant did not: (a) require the contractor or subcontractor to provide to it a Safe Work Method Statement (SWMS) describing how the work of painting the roof was to be done safely; and; (b) consult with the contractor or subcontractor for the purpose of assessing the risks involved in the carrying out of the work and the most appropriate methods of controlling the risk of falls and injury;

14 At no time on or prior to 18 April 2001 did the contractor provide a SWMS to the Defendant.

15 At no time on or prior to 18 April 2001 did the subcontractor provide a SWMS to the Contractor.

16 On or about 18 April 2001, the contractor's Behrouz (Bruce) Hashemi provided Scott with a new safety harness. Scott tried on the harness and indicated to Hashemi that if he needed to use it he would put a rope around the chimney. Hashemi indicated that the manufacturer's instructions were in the box.

17 On 18 April 2001 when he fell from the roof Scott was not wearing the safety 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.

8 Other evidence submitted by the prosecutor in the proceedings included a factual inspection report by Inspector Chadwick dated 7 June 2001 and six colour photographs showing various aspects of the stationmaster's cottage, including the roof. Evidence for the defendant included an affidavit of Bryan Ronald Denner, a director of the defendant, an affidavit of Kim Roper, accountant, employed by Atlas Construction Services Pty Limited, and paragraphs [21] to [24] of an affidavit of Behrouz Hashemi, director of Bruce's Brush Painting Services Pty Ltd, tendered in the proceedings in Inspector Chadwick v Bruce's Brush Painting. Neither Mr Denner nor Ms Roper was required for cross-examination.

9 A number of relevant matters emerge from Mr Denner's affidavit. Firstly, prior to Mr Scott's fall on 18 April the defendant had ordered scaffolding from Atlas Construction Services Pty Limited to be placed on the eastern side of the site due to its proximity to the rail line and height. Secondly, Mr Denner referred to Mr Hashemi's evidence in Inspector Chadwick v Bruce's Brush Painting that "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." Mr Denner deposed as follows: I say following my reading of Mr Hashemi's evidence that if he considered there was a need for perimeter fall protection by way of scaffolding that he should have approached Denbur with his concerns in one of two ways: - (a) if he understood perimeter fall protection was required by way of scaffolding he could have approached Denbur to provide it if he considered it to be the obligation of the principal contractor, Denbur; or

(b) alternatively, he could have made arrangements to obtain such perimeter fall protection and sought variation to the contract on the basis it was not provided for in his quotation.

Mr Hashemi does not appear to explain how he formed the belief that such provision of scaffolding was the obligation of Denbur.

10 Thirdly, the defendant, nonetheless, recognised that there existed upon the site on 18 April 2001 a risk to safety to persons required to work on the main roof performing painting work and accepted that had there been better communication as between it and Bruce's Brush Painting Services Pty Ltd the risk to persons such as Mr Scott would have been eliminated.

11 Fourthly, the defendant continues to operate in the building and construction industry. Fifthly, since April 2001 the defendant has taken a number of steps to ensure that it meets its obligations under occupational health and safety legislation. Sixthly, that the defendant was a small but profitable company.

12 Ms Roper's evidence indicated that the scaffolding was ordered from Atlas Construction Services by the defendant on 18 April 2001, sometime before 3.30 pm on that day, for a period of hiring from 19 to 26 April.

13 The primary consideration in sentencing is the nature and quality of the offence viewed objectively: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; Fletcher Constructions Australia v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum: WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at 196. The maximum penalty in this case is $550,000.

14 In Inspector Woodington v Thiess Services Pty Ltd (No 2) [2004] NSWIRComm 126 I observed at [7] to [9]: 7 Matters that are relevant to a consideration of the objective seriousness of the offence are the nature and quality of the offence and whether it involved obvious or foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, the practical and potential consequences flowing from the commission of the offence including whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety. The Court is also required, in fixing any penalty, to consider the need for both general and specific deterrence: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71]-[80]. 8 A secondary consideration is the subjective features of the offence, that is, the facts concerning the offender. This will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified. The penalty to be imposed must generally be such as to compel attention to occupational health and safety generally so as to ensure that workers whilst at work will not be exposed to risks to their health and safety: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388; Capral Aluminium. 9 In sentencing an offender the Court is also required by s 21A of the Crimes (Sentencing Procedure) Act 1999, to take into account prescribed aggravating and mitigating factors where they are relevant and known to the Court.

This is the approach I have taken in the present proceedings.

15 The obligation upon an employer under s 16(1) of the Act is to ensure that persons not in the employer's employment are not exposed to risks to their health or safety. The risk in this case was the risk of falling from the roof of the stationmaster's cottage whilst the roof was being painted.

16 Whilst the defendant did arrange for scaffolding to be erected as fall protection from 19 April 2001 and it, therefore, could not be said the defendant completely ignored the risk of working on the roof - a consideration in the defendant's favour, the arrangement to provide scaffolding seems to have occurred in a vacuum and without proper regard to what in fact was required in order to ensure that Mr Scott was not exposed to risk on 18 April 2001. As Ms A F Backman, counsel for the prosecutor, submitted no safe work method statement for work specific to painting the roof was required by the defendant nor was one generated by anyone at any time prior to the day of the accident. Nor did the defendant consult with any persons at the site with regard to the identification of any risk involved in carrying out the work of painting the roof. If the safe work method statement had been required before painting commenced on the roof and if a risk assessment had been carried out, appropriate fall protection, including scaffolding, would have been in place before Mr Scott commenced painting the roof.

17 In the absence of appropriate fall protection the risk was obvious. Where the risk of injury is obvious or foreseeable and insufficient is done to eliminate the risk or to protect employees from its impact, it will increase the seriousness of the offence: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Pty Limited (1999) 95 IR 383 at 452; WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 at 267.

18 This is yet another example of the principal contractor not taking sufficient steps to exercise proper management and control over its place of work, namely, the construction site, in respect of occupational health and safety matters. Experience shows that principal contractors in the construction industry cannot be assured that subcontractors will, as a matter of course, meet their responsibilities regarding safe working. Where subcontractors fail to ensure the safety of their employees it will often reflect a failure on the part of the principal contractor. This is one of those cases.

19 As it was submitted for the prosecutor, 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: Lawrenson Diecasting at 26. The obligation on the defendant was to ensure no painting of the roof occurred without adequate fall protection being provided and used. This the defendant failed to do by failing to ensure that Bruce's Brush and Mr Scott provided a safe work method statement that addressed the question of fall protection and by failing to ensure a risk assessment was conducted, which would have plainly demonstrated the need for fall protection to be in place in a timely manner. The measures open to the defendant to ensure against risk were simple and straightforward.

20 In Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32] the Full Bench stated: 32 In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

21 In the present case, Mr Scott fell 5.4 metres from the roof and suffered fractures and facial injuries. The injuries to Mr Scott manifest a serious risk to safety.

22 In Capral Aluminium at [74] the Full Bench observed that both general and specific deterrence are matters "which should normally be given weight of some substance in the sentencing process". In relation to general deterrence the Full Bench added at [75] that "The need for general deterrence in relation to serious offences under the Act is undeniable." A survey of the material available from the judicial information research system provided by the Judicial Commission of New South Wales confirms that falls from height, including in the construction industry, continue to be a regular feature of cases coming before the Commission in Court Session in its occupational health and safety jurisdiction. It is appropriate in this case that I give weight to the need for general deterrence.

23 As for specific deterrence, I note that the defendant continues to operate in the construction industry. However, I also note the defendant has taken appropriate steps since April 2001 to improve its policies and procedures regarding occupational health and safety. Moreover, the defendant has been operating in one form or another since 1985 and this is its only offence since that time. These considerations cause me to place only limited weight on the need for specific deterrence.

24 Turning to relevant subjective factors, the Court is required to take into account the fact that the defendant pleaded guilty and when the plea was entered: s 22 of the Crimes (Sentencing Procedure) Act. Further, it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton (2000) 115 A Crim R 104 at 138. The defendant initially pleaded not guilty in March 2003 and in April 2003 the matter was set down for hearing over three days in March 2004. On 8 March 2004 the defendant changed its plea to guilty and saved the cost and time associated with a three-day trial. The defendant deserves consideration for this and a discount should be applied to any penalty. However, in relation to the question of leniency, as distinct from utilitarianism, I consider the plea was entered in circumstances where the prosecution's case was a strong one. I propose to apply a discount of 15 per cent.

25 Other subjective considerations include the fact that: the defendant was a relatively small operation although there was no issue as to its capacity to pay any fine; it had no prior convictions; it cooperated with WorkCover in the investigation of the accident; the defendant took appropriate steps to avoid a re-occurrence of the accident; and, has improved its policies and practices relating to occupational health and safety. The defendant may be described as a good corporate citizen.

26 Given that the defendant in Inspector Chadwick v Bruce's Brush Painting Services Pty Ltd was fined an amount of $50,700 for a breach of s 16(1) in relation to the accident involving Mr Scott, the question arises as to the relative culpability of the defendant in these proceedings. The defendant in the other proceedings had a more direct connection with Mr Scott than did the defendant in these proceedings. In other words, the other defendant was in a position to be more conscious of the timing of when Mr Scott was going to commence painting of the roof and of the need to ensure that Mr Scott was not only provided with adequate fall protection but that he going to use it. This might suggest that the penalty for Denbur Constructions should be less than that for the defendant in Inspector Chadwick v Bruce's Brush Painting Services Pty Ltd. I am not so sure this is a valid proposition but accepting that it is in this case I consider it is also appropriate, in assessing relative culpability, to take into account that the other defendant at least made some attempt to address its responsibility as to safety by providing a safety harness, that Denbur Constructions had a responsibility for the whole of the site and that unlike the other defendant, Denbur's plea could not be described as one entered at the earliest opportunity.

27 I accept the prosecutor's submission that the respective culpability of the two defendants is approximately equal, given the overall circumstances. Accordingly, I propose to impose a penalty of $50,700 on the defendant, Denbur Constructions Pty Ltd.

28 I make the following orders: 1) A verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $50,700 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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