Inspector Dall v Caines

Judgment 1Mr Andrew James Caines is before the Court for sentencing in relation to a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act") and also a breach of s 136(1)(b) of the Act. In relation to the s 8(2) offence, Mr Caines entered a guilty plea at the first mention of the matter. The s 136(1)(b) offence was contested by Mr Caines a in a judgment delivered on 18 December 2011 he was found guilty of that breach (see Inspector Dall v Caines [2011] NSWIRComm 166). 2Each offence arises out of the same circumstances. Mr Caines was a painter trading as Coral Coatings, Contract Painters ("Coral Coatings"). On 3 April 2010 he was undertaking painting work on a bull-nosed awning attached to a building situated at the corner of Park Avenue and Little Street, Coffs Harbour. At that work site, Mr Caines had employed Mr Drews to perform the painting work. Inspector Dall observed Mr Drews sitting on the roof performing the painting work in circumstances where there was a risk of him falling from height to the ground. 3In relation to the s 8(2) offence, the relevant particulars were as follows: (1)The defendant was, at all material times, an employer. (2)The defendant's place of work was at the site, namely, the Corner of Park Avenue and Little Street, Coffs Harbour. (3)The defendant's undertaking at the site was the painting of a bull-nosed awning. (4)The people who were at risk and who were at the defendant's place of work was Jason Drews. (5)The risk referred to in this charge and in these particulars refers to the risk of the defendant's contractor, Jason Drews, falling from height to the ground. (6)The defendant failed to ensure that there was an adequate means of fall protection (such as scaffolding properly erected and tied to an adequate height and extent of roof coverage, handrails or the use of harnesses) to prevent Jason Drews from falling from height. (7)The defendant failed to ensure that a falls arrest device, such as a harness or similar device, was used by Mr Drews whilst he was working at height, to prevent him from falling. (8)the defendant failed to provide adequate supervision to Mr Drews so that he did not work at height and left suitably erected scaffolding, guard rails or other suitable forms of fall protection were in place or that he was using harnesses or other suitable falls arrest devices. (9)As a result of the defendant's failures, Jason Drews was exposed to risk. 4In relation to the s 136(1)(b) offence, the particulars of the charge were found to be proved by the Court. Those particulars were: (1)The authorised official referred to in this charge and these particulars is Inspector Jeffrey Bell, being an Inspector duly appointed under Div 1 of Pt 5 of the Act who was an authorised official within the meaning of s 136(2) of the Act. (2)The function that the official was performing under the Act was the function invested in him by Pt 5 (Investigations) of the Act and in particular, s 50 and s 59 of the Act. (3)The defendant intimidated or threatened or attempted to intimidate Inspector Bell by standing in front of the defendant's vehicle and sticking his second index finger up at the Inspector. (4)The defendant told the Inspector words to the following effect: What the fuck do you think you are doing? Come on over and I will sort you out, hey soft cock, come over here, hey soft cock, fuck off you peanut-head. 5The evidence in the s 136(1)(b) offence demonstrated that Inspector Dall had observed the work being performed on the bull-nosed awning in circumstances where there was a risk of Mr Drews falling. Inspector Dall initially spoke to workmen at the site pointing out the inadequacies of the way in which the scaffolding was placed and giving some directions as to how the risk to safety might be addressed. During this discussion, the Inspector was informed that a harness was available and would be provided to Mr Drews. The Inspector then left the site but upon returning sometime later found that no steps had been taken to address the issues he had earlier raised. He also noted that Mr Drews was not wearing a harness. 6At the sentencing hearing, due to his circumstances, Mr Caines was able to participate by way of telephone conference rather than being present in Court. Mr Caines consented to the tendering of a Statement of Agreed Facts, being a document prepared with solicitors for WorkCover and solicitors then engaged by Mr Caines. That Agreed Statement of Facts in the s 8(2) breach will appear as an annexure to this judgment. 7The prosecutor also tendered photographs that had previously been shown to Mr Caines as well as certificates indicating that Mr Caines did not have any prior convictions. Both matters proceeded on the basis of the relevant facts appearing from the s 136(1)(b) proceedings and the Agreed Statement of Facts. 8As in the contested s 136(1)(b) proceedings, Mr Caines appeared for himself. Mr Caines had provided to the Court and counsel for the prosecutor copies of documents he wished to refer to during the course of his submissions. Mr Caines did not give sworn evidence but generally addressed his present circumstances, especially his financial circumstances. Amongst the documents tendered by Mr Caines was a letter acknowledging appointment of a Trustee of his estate in mid-May 2011 pursuant to the presentation and acceptance of his debtor's petition by the Official Receiver. He also provided evidence of money owing to him that had not been paid despite being followed-up. That material indicated that, from at least one source, an amount of more than $6,000 was owed to Mr Caines. That debt involved a painting firm that also been made bankrupt. Mr Caines' submissions tended to indicate that it was this particular bad debt that pushed him into bankruptcy. 9Under arrangements with the Trustee in Bankruptcy, Mr Caines said he was able to earn up to $47,000 p a but he was unable to live on that amount of money. He spoke of his house being "repossessed shortly." At the time he gave evidence, Coral Coatings was not earning any money because there had been a "terrible downturn" in the Coffs Harbour economy and there had been lots of rain. Mr Caines asserted that he was now uncompetitive in the area due to trying to adhere to all the WorkCover rules whereas his competitors were not abiding by those rules. His only work was operating his painting business by hiring others to perform the work because he had a WorkCover injury in 2000 and the only way he could earn money was to employ himself. He said he had left school at the age of 15, did not have any other skills and he had only ever been employed as a painter. He said he was trying to run his business but he was not making any income from that work. Nevertheless, he was still quoting on jobs, invoicing jobs that had previously been performed and trying to collect money for that work. 10Although he was not working at the moment because of lack of work, Mr Caines said that he employed five people and paid them wages. He did not have any other assets apart from his house (owned by his previous partner) and he did not own a truck or a car. He was paying lease payments in respect of four leased vehicles. The leasing company had agreed to re-finance these payments to an acceptable level. Mr Caines said he also had equipment to perform his work, including small ladders, plants, small trestles and hand tools such as brushes, rollers and scrapers. He had a harness and also owned the scaffolding that was used on the day of the incident. Mr Caines stated that the last time he worked was in early March 2012. In relation to the five people he employed, Mr Caines said that they had been employed full-time up until recently but the work situation had deteriorated to the extent that he only called them in when there was work and currently they were being employed, sometimes only three or four days per week.