Inspector Connolly v Vujinovic trading as Drina Carpentry

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

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Inspector Chadwick v Bruce's Brush Painting [2004] NSWIRComm 60 CASES CITED: Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364

PROSECUTOR Mr O'Neil of counsel Solicitor: Ms F Miller WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

DEFENDANT Solicitor: Mr J Hajje John B Hajje & Associates

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

INSPECTOR MICHAEL CONNOLLY v MILAN VUJINOVIC T/AS DRINA CARPENTRY

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

1 On 7 September 2002 Nikola Boric, a self-employed person, was performing carpentry work on town houses being constructed at Picnic Point. The work being undertaken was pursuant to a contract with Milan Vujinovic trading as Drina Carpentry ("the defendant") who in turn had contracted with A D Clark & Co, the principal contractor on the site, to erect roof frames. 2 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. 3 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.

The charge against the defendant was that the defendant failed to: [E]nsure 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 whilst they were at the defendant's place of work contrary to section 9 of the Occupational Health and Safety Act 2000. 4 The failures alleged in the particulars of the charge were that: (f) the defendant failed to ensure that Boric was not exposed to risk of injury while working at the construction site on the roof of the townhouse number 4 erecting roof trusses and cutting rafters; (g) 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; (h) the defendant failed to undertake any risk assessment of the roofing work to be conducted by Boric at the construction site.

The defendant pleaded guilty to the charge. 5 An agreed statement of facts was provided to the Court. The statement described Mr Boric's fall as follows: 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. 6 The agreed statement indicated that whilst the defendant was present at the construction site at all material times on 7 September 2002, he was not present on the roof at the time of the accident as shortly prior to the accident he had left the roof to obtain equipment from his work vehicle. The defendant whilst obtaining the equipment heard a loud bang, he observed that Mr Boric had fallen and went to his assistance.

7 The statement also indicated that at the time of accident Mr 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 Mr Boric from falling. 8 The defendant tendered an affidavit and profit and loss accounts for the period 2002 to 2004. It is apparent that Mr Vujinovic's business is a very small one and he essentially works on his own with his wife doing any administrative work and bookkeeping. He deposed in the affidavit that Mr Boric was a "very experienced carpenter" who had been working with him for approximately two weeks up to 7 September 2002. Mr Vujinovic stated that it was a common practice for him to wear a safety harness when working at heights and required any person working with him to wear a harness. In his affidavit, Mr Vujinovic deposed: On the morning of the 7 September 2002 I had been working on the ceiling of town house Number 4. Later that day (approximately between 2-3p.m (sic)) I started work on the outside of the roof. I descended from the ceiling to get some tools and Nikola went to the outside of the roof to cut timber on the ends of the rafters. I did not see Nikola go to the end of the roof and I assumed he would have put his harness on while I was on the ground getting tools. I did not see Nikola fall, however, I heard a noise behind me and turned around. To my absolute shock, I saw that Nikola had fallen and a part of a brick wall had come down with him. I immediately rushed to Nikola's aid. 9 Mr Vujinovic stated that there was no scaffold erected around the building and the absence of the scaffolding was one reason he thought Mr Boric would wear a harness. Mr Vujinovic said that the injuries to Mr Boric had a "great impact" on him; he has difficulty sleeping and sought counselling. A letter from Mr Vujinovic's psychologist was tendered that indicated he had been receiving treatment for depression and high levels of anxiety arising from the incident on 7 September 2002. The affidavit also provided information about Mr Vujinovic's involvement in his church and sporting activities and the difficulties he was experiencing in maintaining those activities. 10 The financial information tendered by the defendant indicated that he was a person of quite modest means with a monthly income of about $2,500 per month from which he paid approximately $1,300 per month in mortgage re-payments. His business was the sole source of income, earned essentially by his own efforts. Consideration

11 This case is yet another example of the all too familiar failure, particularly by contractors in the construction industry, to take proper steps to ensure persons for whom they are responsible are not placed at risk of injury from roof falls. The defendant's particular failures in this case were a failure to provide a safe system of work and a failure to undertake a risk assessment. Whilst the defendant said that he required persons working with him to wear a harness, there was no system in place to ensure that requirement was met in circumstances where Mr Boric was working at a height of over five metres at the edge of a roof and where there was no scaffolding provided. If the defendant had carried out just the barest of risk assessments, which would have revealed the prospect of very serious risk of injury from a fall, he would not have allowed Mr Boric to work on the roof without adequate fall protection and would have put in place a system to prevent the risk arising. 12 The risk was an obvious one and could have been easily avoided. One very simple option open to the defendant was not to allow Mr Boric on the roof until scaffolding was put in place. It is no answer for a subcontractor to say that scaffolding is the responsibility of the principal contractor where the subcontractor has a responsibility under the Act for the health, safety and welfare of workers and where it is obvious that duty will be compromised in the absence of scaffolding, which was the case here. 13 The fact that the defendant provided a harness and required it to be worn is a significant factor that must count in his favour in considering the objective seriousness of the offence but the mere provision of safety equipment is useless unless a system exists that ensures its use. 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. 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. 16 As to specific deterrence, I do not see a need for any penalty to contain a significant element to deter the defendant from re-offending. As the prosecution conceded, the defendant has been severely affected by his experience and I am satisfied in future he will take every precaution to ensure he meets his obligations in respect of occupational health and safety. 17 As to the relevant subjective factors, the defendant entered a guilty plea at an early opportunity and is entitled to a discount on penalty in recognition of the utilitarian value of the plea. The defendant cooperated with WorkCover in the investigation of the accident and has shown genuine remorse and contrition. The defendant has no prior convictions. I have also taken into account the psychological impact of the incident on Mr Vujinovic and the disturbance that it has caused him. 18 As to the question of financial capacity, I have had regard to the evidence concerning the means of the defendant in accordance with the requirements of s 6 of the Fines Act 1996. The defendant's means are modest and I have taken that into account in fixing the penalty. 19 The maximum penalty in this case is $55,000. I consider an appropriate penalty in this case to be $10,000. This amount is to be discounted by 25 per cent for the utilitarian value of the guilty plea and a further 10 per cent for the other subjective factors, resulting in a penalty of $6,500. Orders 20 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 $6,500 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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