Consideration
45The Court must first, and primarily, consider the objective seriousness of the offence in determining penalty: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. This requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32].
46The defendants pleaded guilty to amended charges that involved a risk to persons of being struck and/or trapped and/or asphyxiated by wall collapse whilst working in an excavated trench and a risk of injury from falling into the excavated trench.
47The risk arose in the following circumstances:
(a) a trench up to 3.5 metres deep; 17 metres in length and 2.4 metres wide was excavated by a backhoe;
(b) tonnes of spoil from the trench was placed within a metre of the edge of two sides of the trench;
(c) the backhoe was parked overnight over the eastern end of the trench;
(d) the "H" beams were supported by four wooden stakes 9000 mm long sledge hammered into the earthen sides of the trench, the uppermost two stakes appearing to be about one metre from the top of the trench;
(e) three persons entered the trench and manoeuvred a steel "H" beam into the correct position in the north-eastern pier hole assisted by two persons who were standing on top of the trench.
48As the three persons in the trench were manoeuvring the steel "H" beam into pier holes, the north-eastern trench wall behind the north-eastern pier hole collapsed toward the men in the trench. As a result of the trench wall collapsing, Timothy Haynes sustained traumatic asphyxia causing his death.
49There was almost a complete absence of any active consideration by the defendants of the risk and no measures were put in place to guard against it. It simply did not consciously enter the minds of the personal defendants that the task they were undertaking carried with it the most serious risk of a person or persons being killed. The facts in this regard included that:
(a) there was no site-specific induction or a work activity induction given to the men undertaking the work;
(b) there was inadequate risk assessment conducted;
(c) there was no safe system of work put in place by the corporation for the insertion of "H" beams into the excavation;
(d) in leaving materials stacked near the edge of the excavation work the corporation failed to comply with cl 240(4) of the Regulation; and
(e) in failing to put an adequate system in place in relation to shoring the corporation failed to comply with cl 240(1) of the Regulation and in failing to control the risks of falling from height the corporation failed to comply with cl 56(1) of the Regulation.
50The fact that the defendants were unaware of the risk is no reason in this case why the Court would be more lenient than it otherwise might be. The test is whether the risk was reasonably foreseeable, that is, whether or not the ordinary jury person or reasonable observer could have foreseen the risk: Inspector Kelsey v The University of Sydney (unreported, Industrial Court, Hill J, No 1280 of 1995, 2 April 1997 at 10).
51In Hannah v Ricegrowers Co-op Ltd (unreported, Industrial Court, Fisher P, No 90 of 1988, 20 November 1988) Fisher P stated:
It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety standards.
52In Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Limited [1999] NSWIRComm 353; (1999) 92 IR 8, Walton J, Vice-President stated:
Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng, Matter No. IRC 3064 of 1997, 12 August 1999 at 39), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust.) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and The University of Sydney (at 16).
53In WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd [2001] NSWIRComm 62; (2001) 105 IR 236 at [70]-[74] Walton J, Vice-President stated:
[70] The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature: Capral at [82]....
[71] The defendant submitted, however, that the risk had not been actually foreseen and, therefore, the offence was relatively less serious. In support of this contention, it was submitted that the process giving rise to the incident was not considered by the defendant to be a normal work practice. Further, it was submitted that the means of transferring the molten metal by the defendant on the day of the incident had not been assessed for risk and, therefore, the risk had not been foreseen.
[72] I accept the contention advanced by the defendant that had the risk to safety been actually foreseen, there would be an increase in the overall seriousness of the offence: Axer Pty Ltd v Environmental Protection Authority (unreported, Court of Criminal Appeal, Matter No. 60763 of 1992, 22 November 1993) at [8]. I also accept the submission by the defendant that the risk of injury had not been actually foreseen in the present matter.
[73] However, the submissions made by the defendant as to whether the incident was 'foreseen' also reveal that the defendant had not established a system for the assessment of risk in relation to the work practice in question prior to the incident. Whilst the defendant, on the evidence, had taken elaborate and extensive steps to ensure occupational health and safety at the workplace, the adoption of the particular process giving rise to the incident, without the assessment of risk, does indicate at least some flaw in the safety systems adopted by the defendant.
[74] True it is, that the procedure adopted was not a regular work practice. However, the systems of work adopted by the defendant must include searching for and identifying all possible risks and the institution of safety measures to guard against those risks: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No. CT1280 of 1995, 2 April 1997 at 21). Employers are required to maintain constant vigilance and take all practical precautions to ensure safety in the workplace: Capral at [77].
54In applying those authorities to the present case one may first ask whether the risk was reasonably foreseeable. In my opinion, the answer to that question is "yes". The reasonable observer would see a trench dug into the earth up to 3.5 metres deep, 17 metres in length and 2.4 metres wide. The observer would see that there was no shoring up of any of the walls of the trench, that wooden stakes had been driven into the earthen walls at the point of the pier holes to hold the "H" beams temporarily in place, and that if the walls collapsed there would be no protection for any person working in the trench. The reasonable observer could come to no other conclusion than that a risk existed.
55The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Kembla Coal and Coke. In the present case death and injury did result.
56An offence will be serious "where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible": Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [90]. Clearly, shoring the walls of the trench was an available and feasible measure.
57Whilst it may be accepted the defendants did not foresee the risk, the facts were that they never considered whether a risk might exist notwithstanding the work they undertook was unfamiliar to them. The corporate defendant was engaged in an active business; it was an employer of labour and the two personal defendants were the directors of that business. The business was subject to the occupational health and safety laws. Mr Allan Wadwell agreed in cross-examination that he was familiar with the concept of undertaking a risk assessment before doing work and familiar with safe work method statements. Scott Wadwell agreed in cross-examination that as a director of the corporate defendant he had an understanding of safety management plans as at 14 May 2009 and that he had an understanding of risk assessments and safe work method statements. However, none of the experience and knowledge gained in the operation of the defendants' business in relation to safety was applied to the task of the bungee pool at the premises.
58In my opinion, the objective seriousness of the offence is not diminished by the defendants not having foreseen the risk in circumstances where they did not undertake an adequate risk assessment and took no safety precautions whatsoever: see Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 at [11]-[12].
59It was said by Allan Wadwell that he had relied upon Mr Blakemore's experience and knowledge to carry out the excavation safely. However, he also said he did not consider safety and consulted no one, including Mr Blakemore, about the safety of the excavation including whether sledge hammering the pegs into the wall might have some effect on the stability of the walls. He simply assumed it was safe. Scott Wadwell said he was unaware that it was dangerous to put spoil close to the edge of the excavation and he was unaware of the need to shore up the hole. He said he thought that Mr Blakemore would have known about the danger of putting spoil close to the edge of the excavation and that Mr Blakemore would have taken the appropriate precautions with the excavation.
60Even if it be accepted the defendants relied on Mr Blakemore to advise them about the safety of the excavation because of his purported expertise and even if it were accepted Mr Blakemore was negligent in not doing so, that does not excuse the conduct of the defendants. The responsibility for safety may not be delegated. It is the employer upon whom the Act places the obligation to ensure a safe workplace: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2003) 123 IR 121 at [40]-[42].
61 A further matter relevant to the objective seriousness of the offence is the maximum penalty: Morrison v Powercoal (No 3) at [16] and [17]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [30] and [31]. In respect of the corporate defendant that maximum is $550,000 and for the two personal defendants it is $55,000 each.
62The Full Bench in Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 99 IR 29; (2000) 49 NSWLR 610 held that both general and specific deterrence should normally be given weight of some substance in the sentencing process, "and although there may be exceptional cases ... we would expect such cases to be very rare ..." (at [74]).
63In relation to general deterrence, counsel for the prosecutor submitted:
There must be a clear message coming from the court as the Act recognises, that if companies are going to have their contractors and/or employees involving themselves in areas that they are not familiar with, companies must take the appropriate steps to inform themselves of all relevant safety information in relation to that work.
64In this regard, I agree with the prosecutor. There will surely be occasions where directors of corporations, especially smaller ones in the contracting field, are asked by family, friends, neighbours or community organisations to undertake or assist in undertaking work because, as employers, they have certain resources and/or business contacts that will enable the work to be done more cheaply or efficiently than otherwise might be the case. The work will range from small jobs to large and may involve the corporation using its employees or contractors. Where that is the case and whether the job involves work familiar to the corporation and its directors or is unfamiliar, it will require the corporation and its directors to take the same approach to safety they are required to take in their normal work under the occupational health and safety laws, whether that be on a construction site, in a factory or any other place of work.
65Accordingly, the penalties will include an appropriate element for general deterrence.
66In considering what weight is to be attached for specific deterrence, the Court must consider a defendant's propensity to re-offend. Allan and Scott Wadwell continue to assist on community projects using their corporation's labour. However, the Court is satisfied the incident on 14 May 2009 had a devastating effect on both these men and their propensity to re-offend and that of their company, in my view, is low. I take into consideration the fact that the incident has caused the personal defendants to review and update the safety policy and procedures of their company when undertaking its usual work of commercial fitouts and external cladding.
67In the context of objective seriousness one must examine the level of culpability of each of the defendants. The first matter I need to deal with in this respect was a dispute about particular 2(a) in the amended charges. That particular provided that the defendant:
a. Did not ensure that the principal contractor put in place a site specific OH&S management plan.
68There seems to have been agreement that the principal contractor was the owner of the premises, that is, the Hoskings. The WorkCover Authority's Code of Practice covering Excavation Work (March 2000) provides that:
The principal contractor should ensure that a site specific occupational health and safety management plan is prepared and documented for each place of work where construction is to be carried out.
69The Code of Practice was approved as an industry code of practice pursuant to s 44A of the Occupational Health and Safety Act 1983 ("the 1983 Act") and is relevant in these proceedings: see s 46 of the Act.
70The Occupational Health and Safety Regulation 2001 provided at cl 210 that a principal contractor was to be appointed in respect of a place of work at which high risk construction work was undertaken and the cost of the work did not exceed $250,000: cl 210(1)(b) and (2). Clause 210(6) provided:
Subject to subclause (4), if an owner does not appoint a principal contractor for the construction work, the owner is taken to be the principal contractor for the construction work.
71Clause 210(4) is not relevant. The pertinent point is that cl 210 provides that the Hoskings were the principal contractor.
72There was no specific legislative obligation on the defendants or any of them to ensure the Hoskings put in place a site-specific OH&S management plan. However, the Code of Practice required a contractor to consult with the principal contractor on matters of safety including prevention of collapse or failure of trenches and open excavations (3.1), shoring (3.3) and fall prevention (3.6.1). The Code of Practice also required consultation between a contractor and principal contractor to ensure that a site-specific occupational health and safety management plan was prepared and documents before construction commenced.
73If the charge had been that the defendants had failed to consult about the site-specific occupational health and safety management plan that particular would have been made out. However, I am disinclined to find the defendants guilty of failing to ensure that the principal contractor put in place a site-specific OH&S management plan when there was no legislation obligation to do so. The particular 2(a) is struck out, although consistent with the view of all parties, to do so makes little difference to the gravamen of the amended charges.
74The next matter is that the charges relate to a specific day, namely, 14 May 2009, and to a risk that arose, in my opinion, on that day once persons approached the edge of the trench (risk of falling in) and once persons entered into the trench (risk of injury from collapse). So any conduct before or after that day, for example, Allan Wadwell's involvement with Robin Hosking in planning and designing the bungee pool, is not a matter for the Court's consideration and cannot be taken into account in aggravation. However, the Court is able to take into consideration that Allan Wadwell had far greater involvement in the construction of the pool than the other two defendants and on 14 May 2009 was in the most informed position to recognise risks to safety and undertake safety measures.
75The corporate defendant had no involvement until 14 May 2009. According to the amended charge, the corporate defendant's involvement was limited to "work related to the construction of a bungy (sic) pool and in particular the insertion of 'H' beams into an excavation at the premises." Scott Wadwell was aware of an intention to build a bungee pool in April 2009, but it was not until 13 May 2009 that he was told an excavator had been organised to dig the trench. Then at about 8.00 am on 14 May 2009 Scott Wadwell was asked by his brother to "come over and give me a hand."
76In terms of relative culpability, Allan Wadwell is most culpable. He had the closest involvement and was clearly in charge of the work. Scott Wadwell's culpability is less than that of his brother for the reason that his involvement in what occurred on 14 May 2009 was essentially limited to providing his labour.
77The level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s 26(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, the culpability of the personal or individual defendant may be less than that of the corporate defendant: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [38] in which Wright J, President was referring to the predecessor provision of s 26, namely, s 50(1) of the 1983 Act.
78The corporate defendant's culpability is limited by the fact it did not become engaged until its contractors were placed at risk on the morning of 14 May 2009. That is to say, the corporate defendant could not be held to be culpable in relation to the construction of the bungee pool. However, once it became engaged its failures to ensure safety were comprehensive, both in respect of its failures to ensure that the premises were safe and without risk to health and its failures to provide a safe system of work for the task of insertion of 'H' beams into the excavation at the premises. Whilst the corporation was not involved in excavating the trench for the bungee pool it was involved in the insertion of the "H" beams in the excavation. The insertion of those beams required persons to stand near the edge of the excavation and to go into the excavation. The failure by the corporation to ensure the safety of those personnel in that circumstance is central to its culpability.
79There are a number of subjective considerations. First, the three defendants pleaded guilty. However, the pleas were not entered at the earliest opportunity and frankly I am unable to see any great difference in the amended charges compared to the original charges. It would have been open to the defendants to enter pleas at an earlier stage. As it was, the defendants did not enter pleas until the charges were amended in October 2012 to limit the liability of the corporate defendant to the task of insertion of 'H' beams into the excavation at the premises. I am prepared to discount the penalties by 20 per cent.
80Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides in relation to remorse as a mitigating factor as follows:
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
81It is undoubtedly the case that Allan Wadwell has accepted responsibility for his actions. He has pleaded guilty and sought to take the whole of the blame for what occurred. It is evident he has been personally severely affected by Mr Haynes' death. Mr Scott Wadwell also pleaded guilty and was badly affected by the death. He also arranged to take comprehensive steps to ensure the corporate defendant in undertaking its usual work had up to date policies and procedures in place regarding occupational health and safety. The corporate defendant is the alter ego of the personal defendants. One may accept their remorse is reflected in the corporate defendant.
82A further consideration is the co-operation by the defendants with the WorkCover Authority. Whilst cooperation is required, I note there was no reticence or unwillingness to cooperate with the investigating authority.
83The evidence also indicates that the defendants are of good character and are unlikely to re-offend.
84It was submitted by counsel for the defendants that in respect of Scott Wadwell, an order pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act would be appropriate. Sections 10(1) and 10(3) provide respectively:
(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
...
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person's character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.
85An offence that is objectively serious will rarely attract the exercise of a sentencing discretion under s 10 in favour of a defendant: WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; (2004) 136 IR 449 at [55]. The exercise of such a discretion is saved for extraordinary and highly exceptional circumstances: Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 at [13].
86The offences in this case were objectively serious. In respect of Scott Wadwell, whilst I accept his culpability was considerably less than his brother what cannot be overlooked is that Scott Wadwell had been in business with his brother for 16 years. During that period the business were subject to the occupational health and safety laws and Scott Wadwell had an understanding of safety management plans, risk assessments and safe work method statements as at 14 May 2009. There was no reason why that understanding should not have been applied to the tasks involved on 14 May. Scott Wadwell's late entry into what occurred on 14 May is also no reason to withhold conviction. It was part of Scott Wadwell's responsibility to search out risks to safety and those risks being so obvious in this case preclude any resort to s 10.
87The Court accepts the defendants' guilty pleas and the defendants are convicted of the offences charged.