Inspector Connolly v Clark t/as A D Clark and Company

Fines Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000

Inspector Connolly v Vujinovic trading as Drina Carpentry [2005] NSWIRComm 76 Markarian v R [2005] HCA 25 CASES CITED: The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198 Yeung v Howie Herring and Forsyth [2005] NSWIRComm 266

PROSECUTOR Mr D O'Neil of counsel Solicitor: Ms F Miller WorkCover Legal Group LEGAL REPRESENTATIVES:

DEFENDANT Mr R Moore of counsel Solicitor: Mr R Collings MBA Lawyers

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR MICHAEL CONNOLLY v DAVID DANIEL CLARK T/AS A D CLARK AND COMPANY

Prosecution under section 9 of the Occupational Health and Safety Act 2000

1 David Daniel Clark trading as A D Clark and Company (ABN 96800 538 414) ("the defendant") was a self-employed person whose place of work was a building site comprising a complex of townhouses under construction located at 831 Henry Lawson Drive, Picnic Point in the State. The defendant was the principal contractor on the site and the site foreman responsible for the day to day running of the site. 2 The defendant hired Milan Vujinovic trading as Drina Carpentry, as a sub contractor carpenter to erect roof frames on the dwellings under construction at the construction site. The work required installation of roofing timbers on 13 two-storey townhouses and one single story villa. Mr Vujinovic in turn subcontracted Nikola Boric as a carpenter to undertake roofing work at the construction site. 3 On 7 September 2002, Mr Boric was on the roof of one of the town houses cutting rafters when he fell from a height of about 5.1 metres to the ground. He sustained serious injuries, including a broken elbow and hip and extensive bruising from his knee to his shoulder and neck. 4 The defendant was subsequently charged in relation to the incident by Inspector Michael Connolly of the WorkCover Authority of New South Wales under s 9 of the Occupational Health and Safety Act 2000. Section 9 provides: 9 Duties of self-employed persons

A self-employed person must ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. 5 The charge against the defendant was that on 7 September 2002 at the construction site he failed to ensure that persons not in his employment and in particular Nikola Boric, 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. The particulars alleged two relevant failures, namely, that: (1) The defendant failed to provide a safe system of work at the construction site for Boric while he was working on townhouse number 4 at a height of about 5.1 metres.

(2) The defendant failed to undertake any risk assessment of the roofing work to be conducted by Vujinovic and Boric at the construction site. The defendant pleaded guilty to the charge under s 9 of the Act. 6 The prosecutor tendered a statement of facts in which it was said: The defendant's undertaking included the giving of OHS induction training and site specific training to some contractors in his designated capacity as trainer at the construction site. There is no documented evidence that employees or contractors to Drina Carpentry underwent site induction training prior to commencing work at the construction site. On 7 September 2002 Boric commenced work at about 7.00am. Before lunch he was working on top of townhouse number 4 installing roof trustees and cutting eaves. After lunch, and shortly before 3.00pm, he had cut two roof rafters while positioned on the top of townhouse number 4 at a height of approximately 5.10 metres above the ground. As he prepared to cut a third roof rafter, he stood on the brick lintel, which was on top of a window. The brick lintel consisted of two rows of bricks, which gave way when Boric placed his weight on them, causing him to fall in excess of 5 metres to the ground. As a result of the incident on 7 September, 2002 Boric received serious injuries including a broken elbow and hip and extensive bruising from his knee to his shoulder and neck. As of 10 April 2003 he had not returned to work, was undertaking therapy and walked with the aid of a walking stick. At the time of (sic) accident Boric was not wearing a safety harness and lanyard or any other kind of safety device; nor was there any stable work platform such as scaffolding that may have prevented Boric from falling. Prior to the accident the defendant failed to undertake any risk assessment of the roofing work to be conducted by Vujinovic and Boric at the construction site. Prior to the accident there were no documented work method statements in place at the construction site. On 7 September 2002 and shortly after the accident, Senior Inspector Ian Tyler, WorkCover Authority of NSW, attended the construction site. While there he met the defendant, who showed him the scene of the accident. Senior Inspector Tyler took a number of photographs and made a number of observations from the ground level of townhouse number 4, including the following observations: (a) townhouse number 4 was a two-storey brick construction, part of a larger building with an incomplete timber framed roof; (b) there was a concrete balcony at the base of the structure with an opening into the building; (c) there were loose pieces of timber on the concrete balcony; (d) at the top of the brickwork was an aluminium window with timber rafters overhanging the edge of external wall of various lengths, some with freshly cut ends; (e) the townhouse next to townhouse number 4 appeared identical in construction but had a level of internal brick/block-work two courses above the top of the window frame, which was missing from townhouse number 4; Senior Inspector Tyler then proceeded into townhouse number 4 and upstairs into an unfinished room known as the unsuited level 1. There he continued his investigations and made further observations: (a) he measured, from the top of the ensuite window frame down to the concrete ground-floor balcony, a distance of 5.1 metres; (b) he observed mortar on top of half bricks and loose steel "hoop iron" strapping on the timber top plate of the brickwork; (c) he went to the level one balcony, situated adjacent to the rafter ends and the ensuite, and noticed that it had loose lengths of timber on the floor and no edge fall protection; (d) he measured the cross-section area of a rafter end at 95mm x 45mm. Three rafters had been freshly cut at an angle perpendicular to the ground level. All rafter ends were of the same cross-sectional area; (e) a slight circular indent was evident in the fresh cut of rafters two and three; (f) rafter four immediately adjacent to the ensuite window had been marked with pencil parallel to its cut; (g) on the other side of the rafter were three identical rafters protruding over the external wall all marked with pencil consistent with the cuts on the previous rafter ends; (h) there was no evidence of fall protection such as scaffold or anchor points for safety lines on the roof or the structure; (i) there was no evidence of tools, power or otherwise, evident at the scene of the accident. Following the incident on 7 September 2004 (sic) Inspector Tyler issued Improvement Notice No. 246347 upon the defendant requiring him to ensure that a safe and suitable system of work to prevent risk of falls was implemented and that he provide and maintain a stable work platform from which to work safely. Following the incident on 7 September 2004 (sic) the defendant arranged for external scaffolding to be erected at the site. 7 Annexed to the statement of facts was a Factual Inspection Report of Inspector Tyler dated 23 September 2002, 16 photographs taken by Inspector Tyler on 7 September 2002 and the Improvement Notice No. 246347. 8 The prosecutor also called evidence from Mr Vujinovic. That evidence went essentially to the discussions Mr Vujinovic had with the defendant and his father prior to and following Mr Boric's fall from the roof. A number of questions and answers were also allowed into evidence from a record of interview conducted by Inspector Connolly with Mr Vujinovic on 26 May 2003. It should be noted that Mr Vujinovic was prosecuted in relation to the incident on 7 September 2002 and fined an amount of $6,500: Inspector Connolly v Vujinovic trading as Drina Carpentry [2005] NSWIRComm 76. The prosecutor also called Robert Mayell, coordinator of the investigation construction team of the Occupational Health and Safety Division of the Work-Cover Authority. 9 Also in evidence were two affidavits, one by the defendant and one by Anthony David Clark, Daniel Clark's father and a partner in the family business. Both deponents were required for cross-examination. Evidentiary issues 10 Three evidentiary issues that emerged in the proceedings were: (1) Whether the defendant had a conversation with Mr Vujinovic prior to Mr Boric's fall as to how the work would be carried out near the en-suite dormer window and about the risks associated with stepping on the untied brick lintel. (2) Whether it was impracticable to erect a stable work platform around the buildings under construction, such as scaffolding, rather than rely on a safety harness, scaffolding being considered the best level of protection prescribed by cl 56 of the Occupational Health and Safety Regulation 2001. (3) Whether there was an obligation pursuant to cl 227 of the Occupational Health and Safety Regulation 2001 for the defendant to provide Mr Vujinovic with a written safe work method statement for the work to be carried out by Mr Vujinovic. 11 In considering the evidence in relation to the first issue, I have no doubt that a conversation took place between Mr Vujinovic and Mr Anthony Clark prior to Mr Boric's fall, whereby Mr Vujinovic was warned about the risks of working near the dormer window and about the instability of the brick lintel. I also consider Mr David Clark was present at the time of that conversation. What I am not convinced about, given the evidence of Mr Vujinovic who denied such a discussion and the lack of satisfactory corroboration by Mr Anthony Clark, is that Mr David Clark separately discussed with Mr Vujinovic the actual method by which the work was to be done. In my opinion, Mr David Clark merely relied on the warning given to Mr Vujinovic by his father and simply expected Mr Vujinovic to carry out the work in a safe manner. 12 In relation to the second issue, what I have difficulty understanding is why scaffolding was not in place from the outset given the evidence of Robert Mayell. Scaffolding would have provided a safe method of work for a number of the trades that would have been working on site including the work done by Mr Vujinovic and Mr Boric. 13 Mr Mayell's evidence was that at an early stage of the construction it would have been reasonably practicable to erect scaffolding from which rafters could have been tailed. However, as the construction progressed, it would not have been practicable to erect scaffolding in those areas where the dormer windows were located because, in the meantime, beneath those windows a lower roof covering was constructed. Mr Mayell said the first level of protection was a stable and securely fenced work platform such as scaffolding. If the installation of scaffolding was not reasonably practicable, secure perimeter screens, fencing, handrails or other forms of physical barriers that were capable of preventing the fall of a person should be put in place, and if that were not reasonably practicable the next level of protection was other forms of physical restraints (e.g., safety harnesses) that are capable of arresting the fall of a person from a height of more than 2 metres. Mr Mayell accepted that the second level of protection, handrails, etc., was not practicable. 14 After the accident the defendant did erect scaffolding but not in those areas where the dormer windows were located. After the accident a worker using a safety harness tailed the rafters adjacent to the dormer windows. 15 As to the third issue, my view is that the Regulation required the defendant to provide Mr Vujinovic with a written safe work method statement for the work to be carried out by Mr Vujinovic because the cost of the construction work at the defendant's place of work exceeded $250,000. Such a statement was not provided. Clause 227 applies to any place of work where construction work is undertaken. The application of the clause does not depend on the value of the work of a particular contractor. Consideration

16 The failures particularised in the charge were that the defendant failed to provide a safe system of work and failed to undertake a risk assessment. The defendant was aware of the importance of maintaining a safe place of work but I consider he failed to give it the priority it must be accorded especially in circumstances where work is being carried out on a construction site. 17 It is important for contractors to give early consideration to safety. Given the nature of the construction on the site and the size of the job, I consider that in the interests of safe working it would have been appropriate for an early decision to have been made to erect scaffolding and to structure the sequence of work so that the rafters, including those adjacent to the dormer windows, could have been tailed from the safety of a stable work platform rather than a harness. Scaffolding was reasonably practicable. The defendant did not take this course and in so far as work on the roof of the structure was concerned, relied on the use of harnesses, which increased the prospect of risks arising. Indeed, the very use of the harnesses in the circumstances of Mr Boric's fall posed a risk of injury.

18 Further, whilst the defendant understood the risks associated with working near the dormer windows when the brick lintels were still untied and was present when his father warned Mr Vujinovic of the risk and, I consider, assumed Mr Vujinovic would take appropriate safety precautions, it was necessary that he ensured the work was done safely. That meant satisfying himself beyond doubt that Mr Vujinovic and those that worked for him were not placed at risk of injury. 19 The system of work employed by the defendant in relation to safe working did not cause him to ensure that the warnings about the dangers associated with working at the edge of the roof and near the dormer windows, and which were conveyed to Mr Vujinovic, were in turn conveyed to Mr Boric. The defendant had no way of being sure that Mr Boric would be instructed and supervised as to safe working in the particular area from where he fell. The defendant did see harnesses being used from time to time and did check to make sure the harnesses were properly anchored and properly attached. But he did not satisfy himself that Mr Vujinovic had properly conveyed to Mr Boric the particular danger that Mr Anthony Clark had identified of working near the dormer windows. 20 This does not amount to the need for 24-hour supervision by the defendant. What it means is ensuring that the risk is identified and eliminated or that measures are put into place that avoid personnel being exposed to the risk. If exposure is unavoidable it means doing everything reasonably practicable to minimise the risk: The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198 at [42]. 21 In relation to risk assessment, in this case it was superficial. A properly structured risk assessment may well have led to the conclusion that using a harness as fall protection when tailing the rafters adjacent to the dormer windows was inadequate protection against the risk of injury and that an alternative method had to be adopted. 22 The risk was not only foreseeable but it was known to the defendant. Armed with that knowledge, greater attention should have been given to ensuring workers were not exposed to the risk in the manner I have described. 23 In Vujinovic I referred to the injuries suffered by Mr Boric and their implications for gauging the seriousness of the risk: 14 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case, Mr Boric suffered serious injuries after falling some 5.1 metres. The consequences of falling from such a height could have been worse.

Those observations apply with equal force here. 24 I also referred in Vujinovic to general deterrence: 15 One of the objectives of punishment is to deter others from committing the same crime. General deterrence is a matter that should be taken into account in determining the appropriate penalty to be imposed. In particular, a Full Bench of the Commission in Court Session has recognised that in the industrial context, it will be rare that a sentencing court need not impose a sentence that includes an element of general deterrence: See Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71]. As I observed in Inspector Chadwick v Bruce's Brush Painting [2004] NSWIRComm 60 at [21]: Falls in the construction and related industries are distressingly common and result in serious injury and, in some cases, death. There is a strong case here for any penalty to reflect the need for general deterrence.

I have taken a similar approach to general deterrence in this case.

25 As to specific deterrence, the defendant is a young man and this was his first, and hopefully last, experience of a serious injury on a construction site for which he was responsible. It has been a salutary lesson for him in this early stage of his business career of the fundamental importance of maintaining a safe workplace and the human consequences of not doing so. I have no indication that the defendant will re-offend but he remains in the dangerous business of construction and I intend to include an element in the penalty to remind the defendant of his ongoing responsibility to ensure safety. 26 As to the relevant subjective factors, the defendant entered a guilty plea at a relatively early stage but the utilitarian value of that early plea was diminished somewhat by the need to address the evidentiary issues referred to earlier. I consider an appropriate allowance to be 17.5 per cent. As to contrition, it was not apparent to me there was any meaningful act or expression of contrition or remorse and I make no allowance for it. 27 There is the question of parity with the penalty imposed in Vujinovic. I consider the degree of criminality of the two offenders was roughly equal - not because exactly the same considerations apply in both cases but in terms of objective seriousness the offences attract a penalties should be about the same. However, the defendant in Vujinovic had a number of mitigating factors in his favour that do not apply to the same extent to Mr Clark. These include the discount for the plea of guilty, contrition and considerations under s 6 of the Fines Act 1996. 28 Accordingly, having regard to the maximum penalty of $55,000 I consider an appropriate penalty in this case is $9,000. 29 Finally, I note the brief submissions by counsel for the prosecutor regarding the implications of Markarian v R [2005] HCA 25. In that respect, I take the same view that I did in Yeung v Howie Herring and Forsyth [2005] NSWIRComm 266. Orders

30 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 $9,000 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. ___________________________

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