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[2003] NSWIRComm 350
plaintiff. Conviction recorded for contravention of s 16(1) of the Occupational Health and Safety Act 1983; fine imposed $105,000 (starting point $150,000 reduced by 20% for early plea and further 10% for...
Rawson Homes, the principal contractor for a two-storey house, failed to provide basic fall protection and site security. A subcontractor's nine-year-old son fell through an unprotected stairway void and suffered serious injury. The Industrial Relations Commission convicted Rawson under s 16(1) of the OHS Act for exposing non-employees to foreseeable risk. The Court rejected the defence that the subcontractor's acts on a non-working day absolved Rawson of responsibility. The offence was judged moderately serious; after allowing a substantial discount for an early guilty plea and other mitigating features, the company was fined $105,000 and ordered to pay costs.
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Rawson Homes Pty Limited was the principal contractor for a two-storey house. It engaged a subcontractor, Robert McDonald, to perform gyprocking. On 17 September 2000 Mr McDonald attended the site and, after an initial period, returned with his nine-year-old son, Daniel. The partially completed house had no permanent stair from the ground floor to the first floor, and no handrails, barriers, perimeter fencing or warning signs. A sizeable stairway void existed on the first floor (3310mm by 1450mm) and the fall to concrete below was about 2.4–2.5 metres ([1]–[2], [28], [31]–[33]).
No linked legislation citations have been extracted yet.
While working on the first floor, Daniel fell through the stairway void onto the ground floor and suffered serious injuries, including fractured skull, permanent hearing loss to the left ear, facial nerve palsy on the left, mild brain damage and cosmetic effects ([2], [27]). Inspector Stephen Charles of the WorkCover Authority prosecuted Rawson Homes under s 16(1) of the Occupational Health and Safety Act 1983, alleging the employer failed to ensure that persons not in its employment were not exposed to risks while at its place of work ([3]–[6]). A second charge under s 17(1) was filed, but no evidence was offered on that count and it was dismissed ([6]).
A statement of agreed facts recorded that the defendant had previously used practices such as erecting stair guards and posting signs, but none of these safeguards were in place on 17 September 2000; the site was unsecured; Mr McDonald had not been issued the usual written work order or induction paperwork; and the defendant's supervisors oversaw many sites and had limited presence at this one in the weeks preceding the accident ([8], [13], [29], [31]–[36]). Rawson pleaded guilty to the s 16(1) charge. Boland J accepted that the offence was in the moderately serious range and, after considering objective seriousness, general and specific deterrence and mitigation including an early plea and remedial steps taken by Rawson, imposed a fine of $105,000 (starting point $150,000 reduced by 20% for early plea and a further 10% for other factors), with a moiety to the prosecutor and costs ([32]–[39]).
The court's reasoning unfolded in two linked strands: liability under s 16(1) and appropriate sentence.
Liability: Section 16(1) imposes on every employer a duty to ensure that persons not in the employer's employment are not exposed to risks arising from the employer's undertaking while at the employer's workplace ([3]). Boland J applied that statutory rule to the undisputed facts. The decisive features were that the site had no fall protection around a large stairway void, no perimeter fence, and no warning signs; the defendant's usual practice involved erecting stair guards but none were present; the absence of even simple and obvious protective steps made the risk of falling and the risk of unauthorised entry by children readily foreseeable ([13]–[14], [21], [26]–[29]). The court rejected the submission that the primary causal act (Mr McDonald bringing his son on a Sunday) placed the principal causal responsibility beyond the defendant's control. Boland J distinguished Atco Controls, noting that in Atco the primary causal factors were the autonomous acts of third parties over which the defendant had no control; here, by contrast, the defendant had failed to provide any protection and had not given prohibitions or supervision to prevent access ([23]–[26]). On that basis the defendant was "significantly at fault" and guilty of breaching s 16(1) ([27]).
Sentencing: The court assessed objective seriousness relative to the statutory maximum of $825,000, concluded the offence was moderately serious, and proceeded to consider general and specific deterrence consistent with authorities such as Capral Aluminium ([30]–[33]). Specific deterrence carried less weight because the defendant had taken extensive remedial steps post-accident; general deterrence was relevant. The court allowed a substantial discount for the early guilty plea (20% rather than the full 25%) and a further 10% for cooperation, contrition and remedial measures; these reductions brought the starting penalty of $150,000 down to $105,000, reflecting both community denunciation and recognition of mitigation ([34]–[38]).
Before this decision, established authorities set out the sentencing framework and factors in OHS prosecutions: the need to measure objective seriousness against the maximum statutory penalty, to consider general versus specific deterrence, and to recognize mitigation such as pleas, cooperation and remedial steps. Cases cited in the judgment include Capral Aluminium (for general deterrence guidance), R v Thomson; R v Houlton (on plea discounts), Atco Controls (on apportioning causation when third parties are primarily responsible), and a line of OHS decisions discussing seriousness and the weight of resulting harm ([23], [30], [33], [36]).
Rawson Homes confirms and applies those principles in the construction context: an employer cannot escape liability under s 16(1) merely because a contractor or subcontractor acted in an unwise way on a non-working day, when the employer had not provided basic and readily available precautions nor given express directions or active supervision. The decision draws a clear line that where an unsecured site lacks simple protections and is open to entry, the employer's statutory duty remains engaged and breach attracts significant fines even if the immediate act causing the harm was the conduct of a subcontractor or visitor ([25]–[27]).
Statutory duty (para [3]): "Every employer shall ensure...", The law requires employers to prevent people who are not their workers from being put at risk at their workplaces. It is a direct statutory responsibility, not merely an aspirational standard.
Rejection of Atco analogy (para [25]): "I do not agree ... the situation in Atco Controls is analogous.", The judge says the Atco case (where third-party behaviours were primarily causal) does not apply here. Rawson had omitted fundamental safety protections; the risk arose from that omission, so Rawson remained primarily responsible.
Foreseeability (para [26]): "The site was one without any type of protection ... It was readily foreseeable ...", In plain terms: because the house was half-built, unfenced and had no edge protection or signs, it was obvious a fall or unauthorised entry could happen; the company ought to have foreseen and guarded against that risk.
Sentencing outcome (para [38]): "An appropriate penalty ... $150,000 with a discount ... 20 per cent and a further 10 per cent ... results in a fine of $105,000.", The judge explains the arithmetic: choose a starting point, then reduce it for a genuinely early plea and additional mitigating features like cooperation and remedial steps.
This decision is engaged where:
In such scenarios the court will scrutinise foreseeability and the availability of simple remedial measures; absence of those measures will point to liability under s 16(1) as in Rawson Homes ([13], [21], [25], [26], [28]).
This judgment applies settled sentencing and liability principles already articulated in OHS jurisprudence and subsequently forms part of the body of decisions applying s 16(1) to construction contexts where lack of edge protection and site security caused harm. Boland J expressly followed and cited authorities on sentencing and the significance of remedial measures and plea discounts (Capral, R v Thomson, McDonald's references), and distinguished Atco Controls on causation. Practitioners should read Rawson alongside these authorities when arguing mitigation based on third-party conduct; the decision indicates that mitigation is limited where the employer's failure created the unsafe environment in which third-party acts produced harm ([23]–[26], [30]–[38]).
Because Rawson emphasises foreseeability and the simplicity of protective measures, subsequent courts have treated it as reinforcing the duty of employers to implement obvious, inexpensive precautions on construction sites and to adopt clear site security and induction systems as standard practice. The judgment is consistent with the line of cases that weigh remedial action post-incident as mitigation but not as absolution of prior breach.
Quantifying causative contribution: Rawson distinguishes Atco Controls, but the margin between cases where third-party act is primary and where the employer's omission is primary remains fact-sensitive. How much proactive control or explicit prohibition must an employer show to persuade a court that a third party's conduct was the predominant cause?
Penalty calibration methodology: Rawson chose a starting point of $150,000 for a "moderately serious" offence and applied 20% and 10% discounts. Although the judgment cites relevant authorities, there is still a degree of judicial discretion in selecting starting points and discount percentages. More systematic guidance or a sentencing grid for OHS breaches in construction contexts could increase predictability.
Role of industry practice and timing of protective measures: Rawson noted that stair guards are normally erected, and that no guard was expected because detailed first-floor work was not anticipated. Where common practice varies by stage of construction, courts will need to assess what measures are reasonably practicable at each stage. This case suggests that where a known fall hazard exists, basic protections should not be deferred.
Interaction with contracted-out work and subcontractor autonomy: The decision shows that a principal contractor retains statutory responsibility even for harms caused during subcontractor-led work. The precise boundaries of that responsibility, especially where subcontractors are independently operating and where the principal genuinely lacks knowledge, may require further elaboration in later decisions.
In summary, Inspector Charles v Rawson Homes emphasises that employers must proactively manage obvious and readily remediable risks on their sites, and cannot rely on the independent imprudence of others to negate statutory duty. The case is a helpful, fact-rich application of s 16(1) and of OHS sentencing principles, with significant practical lessons for site management, induction, and the framing of mitigation in prosecutions.
Industrial Relations Commission of New South Wales in Court Session
CITATION : Inspector Charles v Rawson Homes Pty Limited [2003] NSWIRComm 350 PROSECUTOR Inspector Charles PARTIES : DEFENDANT Rawson Homes Pty Limited FILE NUMBER: IRC 5178 & 5179 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under sections 16(1) and 17(1) of the Occupational Health and Safety Act - No evidence offered in relation to charge under s 17(1) - Charge under s 17(1) dismissed - Plea of guilty to charge under s 16(1) - Second offence - Building industry - Contractor's son injured when he accompanied his father on site - Son fell through a stairway void - No handrails or barriers erected - Foreseeability - Offence proven - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources v Berrima Coal (2001) 105 IR 348 Department of Mineral Resources v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Hannah v Albury City Council (1999) 90 IR 397 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992) Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 CASES CITED : R v Thompson, R v Houlton (2000) 49 NSWLR 383 State Rail Authority of NSW v WorkCover Authority (NSW) (2000) 102 IR 218 Tyler v Sydney Electricity (1993) 47 IR 1 Warman v WorkCover Authority (1998) 80 IR 326 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority (NSW) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 WorkCover Authority v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover v Capral Aluminium Pty Limited (1998) 82 IR 468 HEARING DATES: 08/21/2003 DATE OF JUDGMENT: 10/24/2003
PROSECUTOR Ms L McManus of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr A Moses of counsel Solicitor: Mr J Doyle Doyles Construction Lawyers
JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION
Prosecution under section 16(1) of the Occupational Health and Safety Act 1983
Prosecution under section 17(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 350 1 Rawson Homes Pty Limited ("the defendant") was the principal contractor for the construction of a two-storey brick veneer house being built at Lot 23 Foreshaw Avenue, Griffith, Murrumbidgee Estate, in the State of New South Wales ("the site"). In about September 2000 the defendant awarded a contract to Robert McDonald for the work of gyprocking the walls and ceilings at the site. Mr McDonald has a son, Daniel, who in September 2000 was nine years old.
2 On Sunday, 17 September 2000 Mr McDonald attended the site to perform some work. His son accompanied him. Mr McDonald was working on the first floor of the site. There was no staircase from the ground floor to the first floor in place at the site and no barrier or handrails in place around the staircase void on the first floor. At some stage Mr McDonald noticed that his son had disappeared. He found him lying on the concrete floor on the ground level. Daniel McDonald suffered injuries including a fractured skull, permanent hearing loss to his left ear, facial nerve palsy on the left side and mild brain damage. He has an enlarged eye.
3 Inspector Stephen Charles of the WorkCover Authority of New South Wales ("the prosecutor") prosecuted the defendant under s 16(1) of the Occupational Health and Safety Act 1983. 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.
4 The charge alleged that the defendant being an employer failed to: [E]nsure that persons not in its employment, and in particular Daniel McDonald and Robert McDonald were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work contrary to section 16(1) of the Occupational Health and Safety Act 1983.
5 The Particulars of the charge were that the defendant: (a) Failed to provide handrails, safety fences or other forms of physical barriers capable of preventing the fall of persons in the vicinity of the stairway void on the first floor at the Site. (b) Failed to ensure that unauthorised persons, namely children, did not enter the Site and in particular the first floor. (c) As a result of the said failures Daniel McDonald and Robert McDonald were placed at risk of injury.
6 The defendant was also charged under s 17(1) of the Act but given no evidence was offered by the prosecution in relation to that charge it is dismissed. In relation to the charge under s 16(1) the defendant pleaded guilty.
7 A statement of agreed facts was tendered. The statement described what occurred on 17 September 2000 and provided other relevant information as follows:
8 Other evidence in the proceedings included a bundle of colour photographs of the site and a report indicating a prior conviction under s 16(1) of the Act. an affidavit of Mr Lawrie Rawson, a director of the defendant. Mr Rawson was not required for cross-examination. His affidavit addressed the following matters: (a) Mr Rawson's background. He has been in the construction industry for 20 years and his trade is carpentry and joinery. (b) The defendant's background. It was first established in 1979 and now employs 36 full time employees and appoints numerous subcontractors on various projects. The defendant currently constructs approximately 15 houses per month. (c) The incident on 17 September 2000 and the subsequent investigation. It is noted that prior to a contractor starting work on a site a written official work order and a "Rawson Homes Occupational Health and Safety policy is issued. For reasons unknown to the defendant Mr McDonald had not been issued with a written work order and policy before he commenced work. It is also noted that Mr McDonald was not instructed to work on Sunday 17 September 2000 but he was also not instructed not to work. Mr Rawson said it was normal practice to erect stair guards in two-storey constructions and for occupational health and safety signs to be displayed. Mr Rawson did not know why this had not been done on the site. Mr Rawson described the defendant's subsequent investigation of the incident and its cooperation with the WorkCover Authority. (d) The defendant's concern at what had occurred. (e) The defendant's commitment to occupational health and safety. Mr Rawson said that risk assessment training had been provided to employees prior to 17 September 200 and the defendant had in place a comprehensive occupational health and safety policy and practices. (f) The measures taken by the defendant to prevent a recurrence of the incident. These included: re-wording of the occupational health and safety policy to prohibit children under 16 years of age entering the defendant's workplaces; requiring all workers to have completed an occupational health and safety induction course accredited by the WorkCover Authority and to possess a certificate to that effect; fencing of all two-storey homes; erection of pedestrian barricades where required; conduct of risk assessments on all homes built by the defendant; implementation of a policy whereby no work is permitted on weekends without a supervisor's approval; halving of supervisor's workloads to ensure better supervision and maintenance of occupational health and safety systems; maintenance of a site-specific induction register. Mr Rawson indicated no further incidents had occurred since 17 September 2000. He said he was currently undertaking the role of occupational health and safety manager. (g) The defendant's community involvement including a wide range of sponsorships in the central western district of the State. (h) A prior conviction under s 16(1) of the Act relating to an incident in 2000 in respect of which the defendant was fined $42,000.
9 Ms L McManus of counsel appeared for the prosecutor. Ms McManus addressed the principles relating to sentencing. She submitted that given the prior conviction the maximum penalty in this case was $825,000. It was submitted that in fixing the penalty there was a need for both general and specific deterrence. In relation to specific deterrence Ms McManus referred to the nature of the defendant's business as involving inherent risks to safety.
10 It was submitted for the prosecution that the risk of falling from the first floor to the ground floor was readily foreseeable given: (a) The defendant was the principal contractor for the construction of a two-storey house; (b) There was a staircase void on the first floor measuring 3310mm by 1450mm; (c) There was no fixed staircase in place between the first floor and ground floor; (d) The height from the ground floor to the first floor was approximately 2.4m - 2.5m; (e) There were no handrails, safety fences, or other forms of physical barriers in place in the relevant area to prevent persons from falling from the first floor to the concrete ground floor below.
11 It was also submitted that the risk of children entering the site was foreseeable given: (a) The Site was accessible as it was not fenced; (b) There were no signs prohibiting access; (c) The defendant was not advised that Mr McDonald was bringing Daniel onto the Site but the defendant had not prevented Mr McDonald from doing so either by specific instruction, providing information, or through supervision.
12 Ms McManus submitted that appropriate measures were not taken to ensure safety even though such measures were available and feasible. These included ensuring that: (a) Handrails, safety fences or other forms of physical barriers capable of preventing persons falling were provided; (b) Subcontractors were provided with adequate information, instruction and supervision to prevent children being brought onto the Site; (c) Adequate fencing and signs were in place to prevent children accessing the Site.
13 It was submitted that after the accident the defendant took the following steps thereby demonstrating that simple measures were available to avoid a risk to safety: (a) Arranging for handrails to be built around the stairwell on the first floor and secured a ladder in the stairwell; (b) Rewording its Occupational Health and Safety Policy to state that children under 16 are not permitted onto its workplaces; (c) Requiring all workers entering job sites to have completed an OHS induction course and possess an OHS certificate and maintaining a register for Site Specific Inductions; (d) Fencing all two storey homes and ensuring pedestrian barricades are ordered for sites if required; (e) Halving supervisors' workloads.
14 Ms McManus referred to the relevant subjective factors as being: a plea of guilty; the one prior conviction; and, the defendant's cooperation with authorities.
15 Mr A R Moses of counsel appeared for the defendant. Mr Moses also canvassed the principles relating to sentencing. With reference to authority he submitted that the relevant issues to be taken into account in determining the objective seriousness (nature and quality) of the offence were: (a) The extent to which the risk to health and safety was foreseeable and might have been remedied by simple measures: see Workcover Authority (NSW) v McDonalds (2000) 95 IR 383 at 450.
(b) The extent to which the Defendant had control over the primary causal factors of the risk: Workcover Authority (NSW) v Atco Controls Pty Limited (1998) 82 IR 80 at 84-85.
(c) The extent of the Defendant's contribution to the relevant detriment to safety (or the contribution to that detriment made by others): McDonalds at 437.
(d) The existence of a settled system of work which would have prevented the accident if it had been adhered to by the relevant others: Warman v Workcover Authority (1998) 80 IR 326 at 342 and Department of Mineral Resources v Kembla Coal & Coke Pty Limited (1999) 92 IR 8.
(e) General and specific deterrence: Fisher v Samaras Industrial Pty Limited (1996) 82 IR 384 at 388 and Capral Aluminium Limited v Workcover Authority (2000) 99 IR 29 at 57-62.
16 It was submitted the relevant subjective features included: (a) A plea of guilty - in which respect the guideline judgment of the Court of Criminal Appeal in R v Thompson; R v Houlton (2000) 49 NSWLR 383 is relevant (see State Rail Authority of NSW v Workcover Authority (NSW) (2000) 102 IR 218 at 236). In that judgment it was stated that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of a 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea.
(b) Lack of prior convictions: Department of Mineral Resources v Berrima Coal (2001) 105 IR 348 at 392.
(c) Co-operation of the accused with the Workcover Authority: McDonalds at 429.
(e) Measures introduced by the Defendant to overcome deficiencies in safety which the accident highlighted: McDonalds at 429.
(f) The industrial "good citizenship" of the company as particularly reflected by its safety consciousness and the nature and extent of its safety systems: McDonalds at 454. 17 Mr Moses submitted the presence of prior convictions may aggravate the punishment but it cannot result in a greater punishment than the principal offence itself would warrant (see Workcover v Capral Aluminium Pty Limited (1998) 82 IR 468) and that the presence of prior convictions may cause the court in its discretion to lessen the value that the subjective mitigating features may otherwise have had (see Capral Aluminium (1998) at 479).
18 In considering the circumstances in the present case it was submitted for the defendant that it was not readily foreseeable by the defendant that Mr McDonald would perform work at the site on a Sunday accompanied by his nine year old son. Further, it was not readily foreseeable by the defendant that Mr McDonald having recognised the danger of working on the first floor, would assist his son to gain access to the first floor.
19 Mr Moses submitted that it was far from clear that any of the matters referred to by the prosecutor relating to the foreseeability of children entering the site would have abated the risk. Further, it was submitted it was normal practice for the defendant to erect stair guards in two-storey construction sites. No stair guards appear to have been erected at the site prior to 17 September 2000 because it was not expected that any detailed work would be performed on the first storey.
20 Reference was made to the fact that the circumstances surrounding Mr McDonald commencing work at the site on 17 September 2000 without an official work order has not been the subject of any adequate or satisfactory explanation to the defendant. And further that there were no supervisors at the site on 17 September 2000 because of the fact that the defendant did not require its employees or contractors to work on Sundays.
21 The defendant submitted that the primary causative feature of the risk in this matter was beyond its control because Mr McDonald had brought his child on site without its knowledge on a non-work day. Once that proposition is accepted, then the mitigation applied by Hill J in Workcover Authority v Atco Controls Pty Ltd (1998) 82 IR 80 at 84-85 is appropriate to be applied to the defendant.
22 As to relevant subjective features, it was submitted: (a) The defendant entered a plea of guilty at the earliest opportunity. Accordingly, the defendant was entitled to the maximum discount permissible in respect of an early plea of guilt - 25 per cent. (b) The defendant cooperated with the WorkCover Authority in the course of its investigation of this matter. (c) The defendant expressed its contrition for the events that have occurred. (d) The defendant took prompt and effective steps to prevent a recurrence of the risk. (e) The defendant has extensive community involvement and is a good citizen. (f) The one conviction has to be seen in the context that the defendant has been operating since 1983 and has been engaged in extensive projects.
23 It was submitted for the defendant that the primary cause of the risk in this case was that Mr McDonald brought his child onto the site on a non-working day. This, it was submitted, was beyond the defendant's control and, therefore, the Court should take a similar approach to mitigation as that taken by Hill J in Atco Controls. In that case it had been submitted on behalf of the defendant that the primary causes of the accident were not the acts and/or failures of the defendant but those of the forklift driver and the van driver; the former had omitted to look behind him while reversing; the latter, who had attended at the premises for the last eight years on a daily basis, and had been verbally instructed as had all other interested persons who visited the premises, that they were not to park in the loading area, had so parked in breach of those directions (see 83-84).
24 Hill J agreed that the primary causal factors of the accident were the conduct of the forklift driver and the van driver over which the defendant had no control. His Honour considered this to be a mitigating factor.
25 I do not agree with the defendant in this case that the situation in Atco Controls is analogous. Here there was a clear failure on the defendant's part to provide any type of protection against falling in the stairway void from the first floor either by workers or children and a failure to ensure that children did not enter the site either by means of signage or fencing or directions to persons who might be expected to enter the site. That Mr McDonald did work on a non-working day is of no consequence to any plea of mitigation. There was no direction to Mr McDonald not to commence work before being provided with an official work order and no direction that Mr McDonald should not work on the site on a Sunday. Moreover, there was no direction to the carpenters prior to 17 September 2000 that they should erect handrails around the stairway void on the first floor of the site. In other words, it was not as though on the next working day - Monday 18 September 2000 - the site would have been a safer place for Mr McDonald to work because handrails had been erected.
26 The site was one without any type of protection against risk to injury; it was sitting on a block of land without any surrounding fencing, without any signage warning against entry and the partially completed house was wide open to entry by anyone. It was readily foreseeable, in my opinion, that the failure to provide fall protection or take any other appropriate measure might give rise to a risk of falling from the first floor. Similarly, it was foreseeable that a failure to take appropriate steps to restrict access to the site might give rise to the risk of children entering the site.
27 Whilst it was most unwise of Mr McDonald to take his son onto the site and especially unwise to allow his son onto the first floor with a gaping hole in it, there is no doubt that the defendant was significantly at fault in failing to provide a safe environment in the first place.
28 The prosecution referred to the steps that could have been taken, and were taken, to avoid the risk. These steps were obvious and simple remedies.
29 The occurrence of death or serious injury may manifest the degree of seriousness of the risk to safety: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476; WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428-428; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185. In this case Daniel McDonald suffered serious injuries.
30 In relation to the relevance of the maximum penalty for an offence, Wright J, President observed in Walco Hoist Rentals at 185-186: The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council at 407 - 408.
32 I consider that the offence was in the moderately serious range.
33 In relation to general deterrence, in accordance with the principles laid down in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80], I intend to have regard to the need for general deterrence in fixing penalty.
34 As to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps to improve safety following an accident is relevant. I accept that the defendant has a proper perspective on the fundamental importance of a high standard of occupational health and safety in its workplaces. I note the steps taken by the defendant following the accident were extensive and most appropriate. They indicate the seriousness with which the defendant treats the matter. Accordingly, whilst I have had regard to the need for specific deterrence, it has not figured prominently in my consideration as to penalty.
35 The subjective factors in the defendant's favour that are relevant have already been identified and include a plea of guilty, cooperation with the authorities, contrition, the remedial steps taken by the defendant following the accident and the good citizenship of the defendant.
36 The defendant contended that it had entered an early plea of guilty and that, therefore, it was entitled to the maximum discount of 25 per cent. In R v Thomson; R v Houlton (2000) 49 NSWLR 383 Spigelman CJ (at par [160]) set out a number of sentencing guidelines applicable to offences against State laws. The Chief Justice also said at par [155]: 155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.
37 In the present case the prosecution conceded that the utilitarian value of the defendant's guilty plea would be at the higher end of the discount scale. I agree, but I do not consider this is such an exceptional case that it attracts the maximum discount. 38 Having regard to the objective seriousness of the offence committed by the defendant, I consider an appropriate penalty to be $150,000 with a discount for the early plea of 20 per cent and a further 10 per cent for other subjective factors. This results in a fine of $105,000. Orders
39 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $105,000 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.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Inspector Charles
Rawson Homes Pty Limited
(1993) 32 NSWLR 683
(2000) 49 NSWLR 610
(2001) 105 IR 348
(1999) 92 IR 8
(1996) 82 IR 384
(1999) 90 IR 397
(1999) 90 IR 464
(1998) 87 IR 312
(2000) 49 NSWLR 383
(2000) 102 IR 218
(1993) 47 IR 1
(1998) 80 IR 326
(1998) 82 IR 118
(1998) 82 IR 80
(2000) 95 IR 383
(2000) 99 IR 163
(1998) 82 IR 468
(2000) 99 IR 29
Conviction recorded for contravention of s 16(1) of the Occupational Health and Safety Act 1983; fine imposed $105,000 (starting point $150,000 reduced by 20% for early plea and further 10% for other mitigating factors), a moiety of the fine to the prosecutor, and payment of the prosecutor's costs as agreed or by further order ([38]–[39]).