Inspector Cooper v Bell Scaffolding Pty Ltd [2011] NSWIRComm 157 | Case summary

Consideration 36The question to be determined is the appropriate penalty to be applied to the defendant for the contravention of s 8(2) of the OHS Act. Insofar as maximum penalty is concerned in this case it is $550,000. 37The obligation on the defendant, in carrying out work in the digester, was to ensure that workers, in particular Xavier Nugent, were not exposed to risks to their health and safety. That is, in designing and erecting the scaffold in a digester that was approximately 60 metres high and 5.5 metres in diameter, which was a confined space with poor visibility and where surfaces had been coated with a black liquor residue, the defendant was required to ensure Xavier Nugent was not at risk of injury from falling. It was a dangerous environment. The risk was a serious one, because if a worker was to fall from Deck 5 of the scaffolding it was a 12-14-metre drop to the next level of scaffolding. It was fortunate Mr Nugent was not killed. There have been cases in this Court where the height of the fall was less than 12-14 metres, but death has resulted. 38As the Agreed Statement of Facts revealed, the particular configuration of the mid level lower/hanging platform scaffold required its construction beneath support needles erected in the digester. The design of the scaffolding devised by the defendant, including the hanging platform, had not been erected previously by the defendant for maintenance work carried out inside the digester on other occasions. In order to construct the mid level lower/hanging scaffold, scaffolding tubes were dropped below and secured to the tube supports. The tubing had to be installed slightly offset due to fact that the mid level upper scaffold frames were already erected above the tubes. 39The configuration resulted in a slight offset of the scaffold deck of work Deck 5 so that one side of the work deck was hard up against the inner wall of the digester. As a consequence, the opposite side was further away from the digester wall than the usual 100mm gap. 40The offset resulted in the custom designed curved boards of the work deck not fitting. The defendant's employees decided to utilise a straight timber scaffold plank, or lapping board, in lieu of the curved board. The scaffold plank or lapping board was lashed into position across the resulting void. However, the ends of the lapping board butted up against the inner wall of the digester and left a curved void where the lapping board met the curved inner wall of the digester. The maximum gap was measured at 430mm, tapering at either end to the point of contact of the ends of the board with the wall. The gap between the boards of the work deck and the inner wall of the digester was sufficiently large for a person to fall through. 41As a consequence of the exposure to the risk, Xavier Nugent fell through the 430mm gap between the lapping board on the work deck of the scaffolding and the inner wall of the digester. He fell approximately 12 - 14 metres onto another scaffolding platform below. 42The charge was that the defendant failed to provide and maintain a safe system of work for the installation and use of scaffolding in the digester. In that respect, the defendant failed in a number of ways described earlier in this judgment. The most obvious failure was the failure to cover and secure the void area between the inner wall of the digester and the deck of the scaffold work platform on Work Deck 5. The defendant also failed to: provide a railing or other barrier to prevent persons accessing the void area; provide any form of warning that the scaffold was incomplete and not safe to work upon; and failed to undertake an inspection by an appropriately qualified person to ensure that the scaffolding work was completed and was safe to permit persons to utilise the scaffolding. 43In designing and erecting the scaffolding, the defendant would obviously have been aware of the dangerous environment inside the digester including the fact it was a confined space and dimly lit. The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety are relevant in assessing the seriousness of the offence: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8 at 27; WorkCover Authority of NSW v ACI Operations Pty Ltd [1994] NSWIRComm 167; [1994] NSWIRC 11; Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. In the present case the availability of simple, straightforward steps to avoid the risk in such a dangerous environment, such as covering the void, erecting a barrier, providing warnings against accessing the Work Deck and/or carrying out an inspection by an appropriately qualified person, highlight the serious nature of the offence. 44The prosecutor submitted that the risk was reasonably foreseeable. The degree of foreseeability of a risk to safety 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 of injury will necessarily result in the offence being more serious in nature. The defendant submitted, however, that Xavier Nugent was not authorised to enter the digester; that the likelihood that Mr Nugent would act contrary to the instructions given to him and enter the digester without first being authorised to do so and checking the scaffold and digester before doing so was not obvious or reasonably foreseeable ( Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342; (2003) 130 IR 364 at [33]). 45Despite the way it was framed, the defendant's submission regarding Xavier Nugent not being authorised, appears to stem not from any deliberate or flagrant breach by Xavier Nugent of a direct instruction. Such a submission would not be consistent with the evidence, as Mr Nugent had a sign-on work permit on the day to enter the digester and perform work. Moreover, AIE was engaged by DME to coordinate the planning and scheduling of upgrading work on the digester during the shutdown and in particular, to undertake the upgrade work of replacing the screens located inside the digester. Consistent with that role, on 5 July 2008 Mr Hughes, having entered the digester at the same time as Xavier Nugent (about 4.10 pm), was issuing instructions and passing equipment to workers inside the digester. Clearly, Xavier Nugent was inside the digester with the approval of Mr Hughes. 46The defendant's submission regarding Mr Nugent's unauthorised entry into the digester appears to be based on the fact that both Visy and AIE failed to take certain steps to ensure safety and in the absence of those steps having been taken, Xavier Nugent was not authorised to enter the digester. In respect of Visy: it failed to follow its own policies and procedures by failing to undertake an inspection of the scaffolding; it failed to ensure that Work Permit #A22970 was returned before other work permits were issued, one of which permitted Xavier Nugent access to the incomplete and unsafe scaffolding and placed him at risk; it did not require the defendant to provide a documented system of inspection certifying that the scaffold was complete and safe to use; and it did not enforce its system of scaftags, which might otherwise have alerted workers in the area that the scaffolding was not safe. It is to be noted that in relation to what occurred on 5 July 2008, Visy was prosecuted: I nspector Cooper v Visy Pulp and Paper Pty Ltd [2011] NSWIRComm 136. 47Insofar as AIE is concerned, Backman J, in a related prosecution (Inspector Cooper v Allied Industrial Engineering Limited [Company No. 624453] [2011] NSWIRComm 131), described that company's failures in the following terms: [23]... Mr Hughes [AIE's Engineering Manager] knew that no scaftag had been attached to the mid-level lower/hanging section of the scaffolding shortly prior to the incident. He had relied instead upon the verbal assurances received from Mr Bellden that the scaffolding was complete and safe for use. It was, in those circumstances, incumbent upon AIE to undertake an inspection of the Work Deck to determine whether the scaffold was complete and safe for use prior to permitting persons to perform work from the deck. On the day of the incident, Mr Hughes had inspected the hanging platform scaffolding inside the digester, which included Work Deck 5, to make sure that there was adequate overhead clearance for the work to be carried out. He did not, however, inspect the whole of Work Deck 5. He failed to identify the void between the edge of the working deck and the internal wall of the digester. He took no other steps to inspect the mid-level lower/hanging scaffold to ensure that it was safe to use before work commenced in that area. No other person acting on behalf of AIE undertook an inspection of the hanging platform scaffolding erected inside the digester prior to the incident. These failures of AIE exposed persons working on the scaffold in the area of Work Deck 5 to serious risk to their health and safety. 48In Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 at [369] the Court said: [369] In determining whether a defendant should have reasonably foreseen a risk of injury, it is not necessary to show that a reasonable person placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect involved in the happening of the defendant's accident or, in other words, the precise risk of injury or how it occurred. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen or it was reasonable to foresee in a general way the kind of thing that occurred. 49On that basis, the question is whether it was reasonably forseeable that a person not in the defendant's employ may be put at risk of injury from falling through an open void on Work Deck 5. One does not need to ask whether it was reasonably forseeable that Visy and AIE would fail to ensure safety in the way they did and as a consequence a person would be placed at risk of falling through the open void. 50Mr Wragg, the defendant's foreman in charge of constructing the scaffolding, stated that as at 5 July 2008, the mid level lower/hanging scaffold platform in the digester was unfinished, and that the access was closed off to Work Deck 5 from the decks above and that is why he had not affixed a scaftag to the scaffold. Despite stating the platform was unfinished Mr Wragg did not place an 'incomplete scaffold' tag or signage at the entrance to the digester where the mid level lower/hanging scaffold was accessed or on the mid level lower/hanging scaffolding or at Scaffolding Deck 4 at the point of access to the ladder down to Work Deck 5 or at the point of egress from the ladder onto Work Deck 5 to indicate that the scaffolding at that level was not complete. Moreover, on 4 July 2008, neither Mr Wragg nor anyone from defendant placed any red-and-white barricading tape at the entrance to the digester where the mid level lower/hanging scaffold was accessed or on the mid level lower/hanging scaffolding to indicate that the scaffolding at that level was not complete and that the scaffolding in that area was not safe to use. 51There was an obligation on the defendant to ensure that either the work was completed and a scaftag affixed or that there was an 'incomplete scaffold' tag or signage or red-and-white barricading tape in place to prevent access to Work Deck 5. In the absence of these measures having been taken, it was reasonably foreseeable that a person might enter the area where the risk existed and expose that person to the risk of serious injury from falls from or through the scaffold inside the digester. 52The gravity of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendants: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [1999] NSWIRComm 343; (1999) 90 IR 464 at 476. Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: Cahill v New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201; (2008) 182 IR 231 at [35]. 53In the present case, as the prosecutor submitted, the risk that manifested itself resulted in serious injuries to Xavier Nugent. The injuries from falling from height of 12-14 metres inside the digester and striking various scaffold components could have resulted in more significant injuries, and potentially death. Section 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 provides that the fact that an offence involved a grave risk of death to another person or persons is an aggravating factor to be taken into account in determining the appropriate sentence for an offence. 54General and specific deterrence are matters to be taken into account in sentencing under the Act: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71] - [80]; Cahill (No 4) at [43]. In relation to general deterrence, I agree with the prosecutor's submission that the sentence imposed upon the defendant should reflect the need to deter others from failing to take a rigorous approach to ensuring that known hazards from working with scaffolding are rectified, and that ensuring that scaffold inspection systems, the use of scaffold handover certificates, and scaffold tags systems are carefully monitored to ensure work is undertaken only on scaffolding that is complete and demonstrated to be safe for use. 55In relation to specific deterrence, the defendant submitted that this was not a case where there was any need for the penalty to be framed so as to require the attention of the defendant to be drawn to the need to address safety issues. It was noted the defendant: [H]ad an excellent safety record and had comprehensive measures in place demonstrating its commitment to occupational health and safety so that its employees and visitors to its sites are not exposed to risks. Remedial steps were taken immediately following the accident to ensure there would be minimal risk of recurrence. In that regard, as per industry standards, little or no changes to the current safety procedures at the time were seen as necessary or critical. 56The prosecutor acknowledged the defendant had made modifications to its safety systems generally and including in relation to scaffolding work which is performed during shutdowns of Visy's plant. However, the prosecutor also noted the defendant continues to operate its business in the scaffolding industry and continues to provide scaffolding for the annual shutdown at Visy's plant. It was submitted specific deterrence should still be a factor taken into account in fixing the penalty: see Inspector Wilkie v Anstee (No. 2) [2007] NSWIRComm 20; Capral Aluminum. 57The chances of the defendant re-offending are, I think, not great. However, the defendant continues to operate in a dangerous industry and so I will include a small element only in the penalty for specific deterrence. 58The defendant identified a number of matters that it claimed should be considered by the Court in assessing its culpability. Reference was first made to the defendant's system of work including that: the defendant had its own OHS and safety management system, policies and procedures which included a mission statement on safety, safety manuals and incident reporting forms; the defendant had a Safety Manager who was responsible for the implementation and compliance, and provided a monthly report to the Managing Director, which was circulated to Company directors and Branch Managers; the defendant's OHS system was reviewed annually or in response to workplace issues. Bi-monthly meetings were held and work place issues were discussed; the defendant provided an in-house training program for new employees, including induction training. There is an annual written assessment on training and legislative requirements. A 'New Start' pack is provided to all new employees, which outlines Bell policies and procedures, forms and their own pocket "Erection Manual" for scaffolding. Bell also uses their payroll system to distribute flyers to employees on relevant workplace issues. 59It may be accepted that the defendant was not an employer who paid no regard to safety in the workplace. The defendant obviously took safety seriously. However, what occurred on 5 July 2008 was a serious lapse in the defendant's approach to safety. 60The defendant next referred to the fact that Xavier Nugent's employer checked the scaffold and the digester for safety, saw the gap between the lapping board and the inside of the digester and considered it too narrow for a person to fall through. Peter Nugent did not bring the gap to Xavier's attention. The gap was obviously not too narrow. It may be accepted that Peter Nugent's failure to warn Xavier or to prevent work proceeding whilst the gap existed, contributed to the risk. The defendant, however, cannot escape the fact that it created the risk and having done so, did not take appropriate or adequate steps to ensure personnel were not exposed to the risk. 61It was next submitted Xavier Nugent should also have checked the scaffold and the digester for safety before commencing work. The principle has been long established in this jurisdiction that the OHS legislation " was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry": Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257. Even if Xavier Nugent had failed to check the scaffolding this does nothing, in my view, to mitigate the seriousness of the defendant's failures to ensure that Mr Nugent was not exposed to the risk of falling from Work Deck 5. 62It was next submitted for the defendant that Visy failed to provide adequate lighting in the digester. That may be so, but given the obligation on the defendant to ensure safety, having seen that the lighting was dim it had a responsibility to either advise Visy to do something about it, provide its own lighting, complete the work of the Deck or prevent work from continuing until the standard of lighting was adequate. The fact that the lighting was dim and the defendant did nothing about it, only serves to add to the seriousness of its failure to prevent work taking place on Work Deck 5. 63The defendant further submitted as to culpability that Mr Nugent's employer failed to check whether the scaffold handover certificate for the erection had been returned to Visy, signifying its completion and safety certification. It may be accepted that if Peter Nugent had checked he would have found the certificate had not been returned and, therefore, it had to be assumed the scaffold was not safe. I have had regard to this failure on Peter Nugent's part in assessing the defendant's culpability. 64It was next submitted that independent subcontractors responsible for "hole watch" failed to prevent Xavier Nugent's entry into the digester before checking it was safe to do so. As I understand the evidence, ACN 123 556 374 Pty Ltd was contracted to provide trained staff at the digester, inter alia , to supervise and control entry of persons into and out of the digester. Xavier Nugent had the relevant authority to enter the digester. I do not understand that in addition to citing the authority, ACN 123 556 374 Pty Ltd was required to carry out visual inspections of the scaffold before permitting entry. 65Finally, as to culpability, it was submitted Visy failed to implement a safe system of work. I accept this was a significant contributing factor to the risk arising. However, as Walton J, Vice President observed in Workcover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25; (2002) 112 IR 284 at [61]: [W]hen determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 437) and WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31]; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99. 66There are a number of matters of a subjective nature that require consideration. The first is the guilty plea. The prosecutor submitted the plea was not entered at an early stage and, therefore, it was open to the Court to reduce the extent of the discount that the defendant may have otherwise received, consistent with the reasoning in R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 at [11] -[13] and R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] . 67The prosecutor's submission was based on the fact that the Application for Order was filed on 11 June 2010 but a guilty plea was not entered until 28 July 2011. The defendant filed a notice of motion on 26 November 2010 seeking orders that a preliminary hearing be conducted to determine as a separate question whether the digester was a 'place of work' within the meaning of s 8(2) of the Act. This notice of motion was the subject of considerable affidavit evidence, hearings in this Court and lengthy discussions between the defendant and the prosecution. It was submitted the time and costs associated with the prosecution preparing to meet that case and the hearing of that motion would to a significant extent, mitigate the extent of the utilitarian value that would have otherwise arisen from an early plea. 68The defendant accepted that the Court would not apply a discount of 25 per cent because the plea was not entered at the earliest opportunity. However, the defendant submitted the discount would be at the higher end of the scale because ultimately time and resources were saved by the abandonment of the interlocutory challenge and the need for a trial was dispensed with. I propose to apply a discount of 15 per cent to reflect the utilitarian value of the plea. 69As to remorse and contrition, the prosecutor accepted that the guilty plea might be regarded as an expression of remorse and contrition. However, it was submitted there was otherwise no expression of remorse or contrition on behalf of the defendant or express acceptance of responsibility for its actions, or any acknowledgement of the injury, loss or damage caused (see s 21A(3)(i) of the Crimes (Sentencing Procedure) Act ). 70The defendant submitted it had provided evidence that it accepted responsibility for the incident and acknowledged the injury caused by its actions or had made reparation for such injury, loss or damage or both. 71With respect to the defendant, apart from the plea of guilty it has provided no evidence that it has accepted responsibility for its actions and only in an oblique way has the defendant acknowledged the injury it caused to Xavier Nugent. The defendant has made no reparation for the injury. 72It seems to me the Court should not need to go searching for expressions of remorse hidden away in some form of conduct that is said to reflect a defendant's regret or sorrow for its actions. If a defendant wants the benefit of an expression of remorse the expression should be plain to see. Moreover, in this case a good deal of the defendant's submissions were directed to attempting to demonstrate the greater culpability of other parties for what occurred, which in the absence of an unambiguous expression of remorse tends to detract from a pleading that the defendant genuinely accepts responsibility for creating a risk that caused serious bodily injury to a worker. 73It is noted the prosecutor accepts the defendant co-operated fully with the WorkCover Authority throughout its investigation into the incident on 5 July 2008. The Court also accepts this was so. 74There are other subjective factors the defendant submitted should be taken into account. The Court accepts the following factors are to be taken into account in mitigation: (a) the defendant has conducted a significant business over many years in a dangerous industry [involving the erection of scaffolding in large structures of complex shape, with no prior convictions under the Occupational Health and Safety Act (2000) (NSW) or its predecessors, or related legislation in the other states of Australia; (b) the defendant had safety systems in place prior to the incident: (i) the defendant employs a Safety Manager. The Safety Manager's role covered many aspects with respect to scaffolding but in circumstances such as erecting scaffolding in confined spaces as was the case at the VPP9 digester vessel, the role was more specific. The Safety Manager was required to advise scaffolders of the hazards of encountering gases when working in confined spaces and how to detect the same. He also advised on the potential hazards of falling from height and how to set up recovery systems such as rope work for scaffolders to hook onto. This he did; (ii) It is apparent that the site owner and other contractors also had a duty of care to ensure viable and adequate safety systems were not only in place but also assiduously followed. No one should have been allowed into the VPP9 digester vessel without the appropriate training and qualification for working in confined spaces and it was also the primary duty of the other contractors to enforce this; (c) the defendant made improvements to its safety system following the incident. This has included: (i) higher standards of training for working in confined spaces and working at height; (ii) maintaining much more up to date training registers to ensure only those trained for particular tasks are given access to the various sites that require such training; (iii) all directors, managers and supervisors have undergone additional OH & S training including awareness of their obligations to company staff and, just as importantly, the obligations owed to other workers not employed by Bell Scaffolding who perform tasks within Bell's places of work; (iv) more detailed drawings of scaffolding systems will be available to employees to ensure that such things as unsafe gaps, which may have been the cause of the present offence, are not permitted to recur; (v) all of Bell's scaffolders have had their training requirements re-assessed and training has been repeated where necessary; (vi) increased inspections of scaffolding have been instituted to ensure its safety and that it is fit for purpose; (vii) the assessment of Bell's training requirements will be a continual process to ensure that the most up-to-date industry standards are implemented and adopted. (viii) supervision on shutdown sites has been strengthened with post scaffold erection inspections carried out by a second person to verify the integrity of the scaffold. (ix) tighter control on the training of scaffolders in specialist tasks such as confined space has been implemented e.g. the recording of information within the PayGlobal Qualifications module of the HR payroll system. This flows through onto shutdown sites where checks are made to ensure only those suitably trained enter the confined spaces. (x) tighter control and management of documentation i.e. the signing off of safe work Method statements by management before they are talked through and signed off by the scaffolding work crew. 75On the question of parity, the defendant submitted that the principal cause of the workplace injury was the failure of Visy, AIE and to a lesser extent Delter Services to ensure that the systems of work that required employees to be adequately trained for the safe work in the digester and confined space, were complied with. The failure to enforce the system of work established by Visy and to enforce the work permit system for occupation, it was submitted, led to the premature use of the worksite and in turn to the injury. The defendant submitted there was a sufficient difference between its culpability and Visy and AIE so as to permit the conclusion that Visy and AIE were substantially more culpable than the defendant for the offence. 76It was submitted that of the three corporations charged, the defendant was properly to be regarded as the least culpable and should, accordingly, applying the principle of parity, receive a penalty less than that imposed on either Visy or AIE. 77For his part, the prosecutor submitted it would be open for the Court to conclude that the defendant "had a greater degree of contribution to the creation of the risk and the failure to address the risk and, therefore, greater culpability in relation to the circumstances of the incident than..." AIE or Visy. 78AIE pleaded guilty to a charge under s 8(2) of the OHS Act. The maximum penalty available was $550,000. AIE was fined $90,000. 79In Inspector Cooper v AIE , Backman J considered the relative contributions of AIE, Visy and Bell Scaffolding to the circumstances of the offences. However, as her Honour noted, a difficulty she faced was that she did not know what acts and omissions were alleged against Bell: at [42]. Nevertheless, her Honour found as follows: [42]...What the Court does know is that Bell erected the scaffolding, and, like AIE, was required to operate within Visy's work permit system, relevantly in relation to that aspect of the system involving scaftags and other tags and measures signalling whether the scaffolding was complete and safe for use or incomplete and not safe for use. The Court also knows, on the facts relied upon in these sentence proceedings, that Bell, like AIE, failed to follow that system, and, that Mr Bellden, notwithstanding the failure of Bell to return Work Permit A22970 to Visy, verbally assured Visy that it was completed. In addition, the JSEA prepared by Bell in relation to the erection of the digester's internal scaffolding was deficient in a number of respects, significantly because of its failure to specify that on completion of the erection of the scaffolding a scaftag was to be affixed. [43] On the other hand, Mr Hughes, a director of AIE and its senior site representative at Visy's mill, was both aware of the work permit system (and that aspect of the system relating to the use of scaftags) and he knew, notwithstanding Mr Bellden's verbal assurance to him that the internal scaffold was complete, that no scaftag had been attached to the mid-level lower/hanging section of the scaffolding. In spite of this apparent contradiction, Mr Hughes took no steps to verify that the information from Mr Bellden was correct or that the scaffolding was in fact complete and safe to use. [44] Based on this material, it is open to conclude that the respective culpabilities of Bell and Mr Bellden are greater than that of AIE. It is of particular significance to this finding that Bell constructed the scaffolding and left it in an incomplete and unsafe condition without affixing a scaftag (or ensuring that one was affixed) to signal that the scaffolding was not safe to use. [45] AIE's culpability by reference to that of Visy's culpability is capable of being assessed because of the material available. A combination of that material in the Agreed Facts and the material in the amended charge against Visy, discloses that of the two parties Visy was the more culpable party in the circumstances of the incident which gave rise to AIE's offence. Visy was the principal contractor. AIE and Bell were required to operate within Visy's safety systems. Visy's systems of work permits was deficient. With regard to Work Permit A22970, Visy did not ensure that it was returned by Bell in accordance with its system which should have been before Mr Nugent was permitted to work inside the digester on Work Deck 5. The work permit was not returned by Bell until after Mr Nugent's accident. Despite this, Visy issued another Work Permit A22984 to AIE on 5 July 2008 which permitted work to be undertaken inside the digester. Peter Nugent and Mr Nugent, and other workers signed the "Work Party Sign On Sheet" attached to that Work Permit before they entered the digester to commence work on that day. Visy did not require Bell to provide a documented system of inspection certifying that the scaffold was complete and safe to use. Visy did not inspect the digester or the internal scaffolding to ensure a scaftag had been affixed or otherwise inspect the scaffolding to determine that the scaffold was complete and safe to use and it did not prevent non-employees such as Mr Nugent from commencing work inside the digester and utilising the scaffolding which was not safe. 80Visy pleaded guilty to a charge under s 8(2) of the OHS Act. Visy had a prior conviction and, therefore, faced a maximum penalty of $825,000: Inspector Cooper v Visy at [23]. Visy was fined $145,000. 81In Inspector Cooper v Visy Backman J again considered the respective culpability of the offenders and at [34]-[36] her Honour found: [34] In the earlier judgment against AIE, the Court examined the respective culpabilities of AIE, Visy, Bell and others, and, as best as could be done given the material before the Court, concluded (at [45]) that AIE was less culpable in the circumstances which gave rise to AIE's offence than was Visy. There is no good reason in the present proceedings why the Court should depart from this view. The Agreed Facts relied upon by the parties in both prosecutions are substantially the same, except for some areas of divergence. Given the substantial similarities between the two sets of facts relied upon against AIE and against Visy, the Court adopts and applies its findings with regard to their respective roles at [45] of the judgment in relation to AIE. In addition, the Court notes that the charge to which Visy pleaded guilty emphasised its failure to require the contractors to comply with its system of scaftags, as well as non-compliance with its broader system (encompassing the system with regard to scaftags) of utilising Work Permits. The charge also alleges failures by Visy to undertake an inspection of the digester and the scaffolding. Visy was the principal contractor at the mill and AIE, Bell and other contractors working on the shutdown were all required to work within Visy's systems. [35] Visy also submitted that its culpability was less than Bell and Mr Bellden, both of whom have been prosecuted in relation to the circumstances prevailing at the mill at the time of the accident. Visy based this submission on the following matters: (i) it engaged other parties to perform specialised tasks; (ii) the scaffolding was designed and erected by Bell and certified scaffolders; (iii) Mr Bellden advised Mr Hughes from AIE on 5 July 2008 that the internal scaffolding was complete. [36] With regard to the third point, it is not clear from the Agreed Facts at what time on 5 July 2008 Mr Hughes was advised by Mr Bellden that the scaffolding was complete, that is, before or after the accident involving Mr Nugent. Moreover, this piece of information has little (or no) weight (in the absence of any other information) to an assessment of the respective roles of Visy, Bell and Mr Bellden because what is not known is whether Mr Hughes passed this information onto Visy. While the scaffolding was designed and erected by Bell, which was a specialist contractor, Visy was the principal contractor and Bell, as the specialist contractor, was required to work within Visy's system. It was incumbent upon Visy to inspect the digester and the scaffolding to ensure that the scaffolding was complete and safe to use. It was also incumbent upon Visy to ensure that it, and its contractors, complied with its own system of Work Permits. This was not done with the result that a work permit (A22984) was allowed to issue which permitted Mr Nugent to enter the digester and commence work within the area of Work Deck 5 which was neither complete, nor safe, and which contained a void measuring 430 millimetres through which Mr Nugent fell. These facts, in the absence of other facts relied upon in these proceedings against Bell and Mr Bellden, facilitate the conclusion that Visy was the more culpable party. 82In the result, then, Backman J found on the information available, that the culpability of Bell was greater than AIE, but Visy was more culpable than Bell. The defendant, however, submitted that it was less culpable than both Visy and AIE and, therefore, deserving of a penalty less than $90,000. 83The difference in the present proceeings to those before Backman J is that the Court as presently constituted has the benefit of the two decisions of her Honour and, as well, has before it the acts and omissions of Bell and the agreed facts. What is more, I am not constrained to fix a penalty according to what her Honour determined in two different prosecutions, although I accept that I should avoid any inconsistency in sentencing that might give rise to a justifiable sense of unfair treatment: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606. 84Nevertheless, I agree with her Honour that Bell was more culpable than AIE and less culpable than Visy, although in my opinion only marginally less culpable than Visy. Bell, after all, created the gap on Work Deck 5. If it had not been for that gap no risk would have arisen in the first place. Bell compounded its culpability by failing to take simple, obvious steps to protect workers from falling through the gap until the scaffolding was safe to work on. 85The appropriate sentence to be applied to the defendant in this case, having regard to all of the relevant objective and subjective considerations is $120,000. I so find.

Inspector Cooper v Bell Scaffolding Pty Ltd

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