Inspector David Singh v Steven Anthony Lindner; Inspector David Singh v Kaybron No 5 Pty Ltd; Inspector David Singh v Austec Panel Systems Australia Pty Ltd

Industrial Relations Commission (NSW)|2005-08-22|Before: Marks J, Mr P, Ms P

Industrial Relations Commission of New South Wales in Court Session

Inspector David Singh v Steven Anthony Lindner; Inspector David Singh v Kaybron No 5 Pty Ltd; Inspector David Singh v Austec Panel Systems Australia Pty Ltd [2005] NSWIRComm 307 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

PROSECUTOR Inspector David Singh

DEFENDANT (IRC 4/3287) Austec Panel Systems Australia Pty Ltd

CATCHWORDS: Occupational health and safety - prosecution - guilty pleas - alcove floor gave way - prior removal of ceiling supporting alcove floor - worker sustained serious injuries - failure to identify a forseeable hazard - failure to properly supervise - failure to provide training re risks - Prosecutor to prove facts adverse to defendants beyond reasonable doubt - no evidence concerning forseeability of risk other than that constituted by plea of guilty - objective seriousness of the offence - unable to assess forseeability - causal connection between creation of risk and conduct of defendants - specific and general deterrence - subjective matters considered - s 6 of the Fines Act considered - penalties imposed - convictions delayed until resolution of costs issues.

Fines Act s 6 LEGISLATION CITED: Occupational Health and Safety Act 2000 s8(1) 8(2) 26(1)

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Cheung v The Queen (2001) 209 CLR 1 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'Ng) (1999) 90 IR 432 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Maxwell v The Queen (1995-1996) 184 CLR 501 CASES CITED: Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96 Isaacs v R (1997) 41 NSW LR 374 R v Olbrich (1999) 199 CLR 270 R v Storey [1998] 1 VR 359 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & Ors [2005] NSWIRComm 31

PROSECUTOR Mr P Strickland of counsel Solicitor: Julian O'Connell WorkCover Authority of New South Wales

DEFENDANT (IRC 3285) Mr M Easton of counsel Solicitor: Richard Shakenovsky LEGAL REPRESENTATIVES: Greenstein Shakenovsky Solicitors

DEFENDANT (IRC 3286) Mr M Cahill of counsel Solicitor: Paul Cutrone Sparke Helmore Lawyers

DEFENDANT (IRC 3287) Ms P Nash of counsel Solicitor: Peter Snelgrove Snelgroves Lawyers

18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under s.26(1) and 8(2) of the Occupational Health and Safety Act 2000 Matter No IRC 3286 of 2004

Prosecution under s.8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 3287 of 2004

INSPECTOR DAVID SINGH v AUSTEC PANEL SYSTEMS AUSTRALIA PTY LTD

Prosecution under s.8(2) of the Occupational Health and Safety Act 2000

1 The Prosecutor, Inspector Singh of the WorkCover Authority of New South Wales, instituted proceedings against three defendants alleging breaches by each of them of certain provision of the Occupational Health and Safety Act 2000 ("the Act"). Each of the defendants pleaded guilty. The proceedings arise out of an incident in which a person sustained serious injuries. By arrangement with the parties the hearing of each of the proceedings concerned with the fixation of penalty was conducted concurrently, although in general terms the evidence given with respect to each of the proceedings was to be confined to those proceedings and was not to become evidence in any of the other proceedings. Because there is a substantial factual matrix which is common to all of the proceedings, it is convenient to determine each of them within the one document, containing reasons for judgment in each of them. 2 There are three defendants. In matter number 3285 of 2004 the defendant is Steven Anthony Lindner ("Lindner"). In matter number 3286 of 2004 the defendant is Kaybron No 5 ("Kaybron"). In matter number 3287 of 2004 the defendant is Austec Panel Systems Australia Pty Ltd ("Austec"). 3 All of the evidence in each of the proceedings was in documentary form, including an agreed statement of facts, photographs, reports of inspectors of the WorkCover Authority of New South Wales and the like. No oral evidence was called.

The Factual Background 4 I set out hereunder a number of facts taken from the agreed statements of fact filed in IRC 3286 of 2004 as representative of the agreed statements of fact filed in each of the proceedings which are either uncontroversial or common to all of the proceedings:

"… 3. At all material times, the Defendant [ Kaybron ] was a member of the group of companies trading as "Primo Smallgoods", which operated a small goods plant at 18 Hume Highway, Chullora in the State of New South Wales ('The Premises'). The Defendant, Kaybron, supplied the employees, who worked at the Premises. 4. At all material time, the Defendant [Kaybron] was an employer. 5. On 7 August 2002, at the Premises, the defendant [ Kaybron ] contravened section 8(1) of the Occupational Health and Safety Act 2000 ("the said Act"); 6. On 7 August 2002 the defendant [Kaybron] employed Omar Bhagdadi ("the worker") at the Premises, as a boner. 7. At approximately 1:30pm on that day, whilst in the course of his employment at the Premises the worker fell from a height of 4.612 metres and sustained injury. 8. In July and August 2002 modifications were being done to a segment of the Premises at 18 Hume Highway, Chullora ("the Works"). 9. Austec Panel Systems Pty Ltd ("the principal contractor") was contracted by Primo Quality Smallgoods Pty Ltd to design and construct the modifications to the Premises. ("The Works.) for a sum of $139,825.40. 10. Austec Panel Systems Pty Ltd subcontracted the performance of part of the Works including the demolition of the suspended ceiling to Vidual Pty Ltd ("the subcontractor"), which provided labour to carry out the Works. [ The defendant, Lindner, was a director of Vidual Pty Ltd ]. 11. The Works involved the construction of new salami curing rooms. The contract with Austec included the design, planning and conduct of the works, subject only to specifications for the curing/refrigeration plant that was to be installed above the new salami curing rooms. The Works included: (a) the demolition of the old salami curing rooms on the ground floor of Primo's premises, (i) the demolition of a suspended ceiling of a height of 4500mm; (ii) demolition of walls; (iii) demolition of some existing concrete plinths; and (iv) demolition of non-insulated office area whose ceiling was a height of 3500mm; (b) the construction of new insulated rooms, including; (i) construction of some new concrete plinths; (ii) construction of new walls of insulated materials; and (iii) construction of a new suspended ceiling of a constant height of 3500mm. … 13. An enclosed suspended corridor was located above the non-insulated office area, that was to be demolished. ("The Corridor"). The Corridor was the main thoroughfare from the change rooms, toilets and lunchroom to the processing areas. Approximately 40 workers employed by Kaybron and 210 other workers used the Corridor up to four or five times a day when travelling to and from the change rooms, toilets and lunchroom to the processing areas. 14. At the time of the subject incident there was a service passage, or alcove, off the corridor. ("The Alcove") The floor of the Alcove was 620-650mm above the Corridor floor level. The Alcove was 835 mm deep. There was a two-step iron ladder and a grab rail on the wall to assist service personnel in getting into and out of the Alcove. 15. At the time of the subject incident, the Alcove provided access to a door into the ceiling void. ("The Alcove Door".) The ceiling void also contained essential services, fire, water and some plant equipment. The Alcove Door was accessed from time to time by Primo's/Kaybron's service personnel for the purpose of conducting routine inspections, maintenance and repairs of the upper portions of machinery housed in the ceiling space. 16. The new salami curing rooms were to be constructed under both the Corridor and the new ceiling void. The new insulated ceiling height was to be approximately 1 metre below the Alcove flooring. 17. At the commencement of the Works, Steven Lindner (director of Vidual Pty Ltd) "sealed off" the entry to the Alcove from the Corridor by means of security tape. 18. In addition to the tape, 2 pieces of blue tape were 'criss-crossed' over the alcove door and a safety, or warning, sign was affixed to the security tape. The sign read words to the effect of 'Danger, Ceiling has been removed'. Also, a steel bar was placed through the locking device of the access door (on the 'ceiling side'), which prevented people from opening that door from the Alcove. 19. Approximately two to three days before the incident, employees of Vidual, the subcontractor, removed the suspended ceiling and some panels, which was a preparatory step to the construction of a new salami curing room. ... 22. The Worker was employed in the pork boning room, which was located on the ground floor of the factory. From time to time, the Worker used the Corridor in order to walk between the processing area and the change room, toilets and/or the meal room. 23. The Worker was not a maintenance worker and his duties did not otherwise require him to access the Alcove or the ceiling void. 24. On 7 August 2002, for reasons unknown, the Worker accessed the Alcove area from the Corridor, after returning from the boning room following a meal break with another employee. In order to access the alcove area, the Worker must have climbed up the two step iron access ladder and then, stepped into the corridor. It is not known why the Worker climbed the access ladder and stepped into the alcove. 25. When the Worker put weight on the floor of the Alcove, the floor collapsed and the worker fell, together with the flooring, to the concrete flooring approximately 4.612 metres below. 26. A fitter, employed by the Primo Small Goods group of companies walked up to the Corridor shortly after the incident and did not seen any security tape sealing off the Alcove and did not see any security tape wrapped around the worker. He saw bits of tape stuck to the wall. He said, "That is a main passageway and through the course of the day there are hundreds of people using the passageway". ... 28. After the incident, the subcontractor sealed off the entry to the Alcove with plywood, which was screwed to the Alcove's entrance. The subcontractor did this to prevent any access to the Access Door and the Alcove from the Corridor following the collapse of the Alcove floor."

5 With respect to the defendant Kaybron, the agreed statement of facts contained an assertion that after the incident the defendant had conducted an investigation and was unable to locate the tape or the safety sign which had been affixed to the opening of the alcove area. In addition, in an affidavit sworn by Stephen Bertram, human resources manager of Kaybron, a statement was made: "An investigation conducted after the subject incident concluded that when the workers were demolishing the ceiling over old offices, the workers also pulled out the structure that had provided the support for the alcove flooring…the works which Austec was retained to perform did not include demolition and/or removal of the supporting structures for the alcove floor and neither Austec, nor any of its subcontractors, advised any of the Primo Smallgoods group of companies, including Kaybron, that the works would impact in any way upon the structural safety of the alcove, including the alcove floor". 6 There was no evidence to the effect as is set out in the paragraph above brought against either the defendant Austec or the defendant Lindner. 7 In an affidavit tendered on behalf of Austec, Joseph Edward Zadro, the sole director of that company, asserted that: "…shortly before the accident occured, I had been standing in the alcove area where the floor subsequently gave way. I went there to observe that the door on the side of the alcove was still secured and taped…I did not detect any visible or other movement in the floor and I did not regard it as unstable. No one else drew my attention to any problem with the floor". Mr Zadro also stated that the alcove floor was not part of the contract works. 8 Each of the defendants pleaded guilty to a breach of s 8 of the Act, which is in the following terms: s 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

9 The defendant Kaybron was charged with a breach of s 8(1). It was said that it had failed to ensure that premises controlled by it where its employees worked were safe and without risks to health, in that the alcove and the alcove floor were not adequately sealed off or barricaded from the access corridor, it had failed to identify hazards which existed, and it had failed to assess the risk of harm arising from the hazard caused by the failure to seal off or barricade the alcove and alcove floor. There was also an allegation that Kaybron had failed to properly supervise Austec and Vidual Pty Ltd ("Vidual") in ensuring that the alcove and the alcove floor were adequately sealed off or barricaded. 10 The defendant Austec was charged with a breach of s 8(2). It was alleged that it had failed to ensure that the alcove and alcove floor were adequately sealed off or barricaded, and had failed to exercise reasonable care in identifying "a foreseeable hazard" that may arise from the conduct of its undertaking and that had the potential to harm the health or safety of persons not in its employment" in that it failed to identify a hazard arising from that failure. There are also allegations of a failure to assess the risk of harm, to eliminate or control "reasonably foreseeable risks" created by the failure to adequately seal off the alcove and alcove floor, a failure to properly supervise the employees of Vidual and a failure to provide information, instruction and training with respect to the risks and hazards which it was said were created. 11 The defendant Lindner was a director of Vidual, a company in liquidation, which company was said to have contravened s 8(2) and he was therefore deemed to have contravened the same section pursuant to s 26(1) of the Act. The breach alleged against Vidual was that it had failed to ensure that the alcove and the alcove floor were adequately sealed off or barricaded whilst demolition and construction works were being undertaken in the vicinity and that the injured worker had thereby been placed at risk of injury. 12 In essence, each of the defendants recognised that there was an absolute obligation created by the relevant provisions of the Act and that obligation had been breached in a specific way. This was the failure to ensure that an appropriate barrier had been constructed so as to preclude a person from entering the alcove area and being exposed to the risk of injury by reference to the unsafe nature of the floor in the alcove area. The plea of guilty constitutes "an admission of all the essential elements of the offence" (per Dawson and McHugh JJ in the High Court of Australia in Maxwell v The Queen (1995-1996) 184 CLR 501 at 510).

Fact Finding in the Context of Sentencing Procedures 13 It is apposite to commence a discussion of the principles in this area with an extract from the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in the High Court of Australia in R v Olbrich (1999) 199 CLR 270. At 274 their Honours commenced their judgment by saying: "The process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is determined. Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important". 14 The joint judgment to which I have referred makes it clear that a judge in conducting sentencing proceedings is not obliged to make inquiries concerning any particular factual matter which is of relevance but about which no evidence is adduced. Furthermore, the judge is compelled to take into account the nature and circumstances of the offence so far as they are "known to the court" (see paragraphs 15 and 17 of the judgment referred to above). 15 It is helpful also to refer to what their Honours said at paragraph 25 and 27 of their judgment: "[25] Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof (Fox and Frieberg, Sentencing: State and Federal Law in Victoria , 2nd ed (1999), pp 100-107). References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.) ... [27] As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369, per Winneke P, Brooking and Hayne JJA and Southwell A-JA - that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."" 16 Questions of proper approach to fact finding were also considered by the High Court in the later case of Cheung v The Queen (2001) 209 CLR 1. In a joint judgment, Gleeson CJ, Gummow and Hayne JJ referred with approval to what had been said in the joint judgment in Olbrich. In adopting observations of the Court of Criminal Appeal of New South Wales in R v Isaacs (1997) 41 NSW LR 374 their Honours referred to two specific principles which are relevant for the purpose of these proceedings. The first is that "subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing …". Also, "…findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt".

17 As will be seen, the focus of attention in the proceedings revolved around an assessment of the objective seriousness of each of the offences. This in turn related to the foreseeability of the particular incident created by the failure of the floor in the alcove area to hold the weight of the injured worker. Although no part of the injured worker's duties required him to have entered the alcove area, it was recognised by each of the defendants that the obligations created by the Act extended to persons whose safety might be endangered, even as a result of their own lack of attention, inadvertence or, in some cases, deliberate misbehaviour. 18 The risk of injury in the circumstances of all of these proceedings was confined to risks associated with the failure of the flooring in the alcove area. Such evidence as is before the Court is to the effect that other persons had stood on the flooring in that area without encountering any difficulty and, in the case of Mr Zadro, without any apparent signs of any problems "shortly" before the accident. Some understanding of the physical layout may be gleaned from the photographs which were tendered into evidence and which contained appended to them some explanatory notes, which also became evidence in the proceedings. One photograph shows the "upper section of the collapsed floor covered with flexible flooring cover". Another photograph shows the bottom of the alcove area from where the floor collapsed. There appears to be at the bottom a lipped edge by way of a frame on to which the flooring rested. This is consistent with an observation made in the report of Inspector Singh. However, in his report, Inspector Singh said "there were no marks or indication on the cement board as to how it was fixed in position apart from presence of adhesive material on three sides of the board". He also observed that the cement board had cracked right across its width. 19 There may or may not be a reference to the floor of the alcove area in the report of Senior Inspector Tyler. That report is framed in cryptic terms in a manner which does not permit me to ascertain whether Mr Tyler is referring to the floor area or to some other part of the area inspected by him. By way of example, paragraph 6 of that report says "front face on aluminium brackets 40x40mm. Pop rivet holes in the top and secured to face out very loose approximately 85mm below steel plate (foot)". There is a further reference to the "depth of bracket from floor platform soffit" and a reference to "no other brackets or evidence of fixing hole at same level…". I am unable to discern whether the brackets refer to the alcove floor area or some other part of the property. In the absence of any oral evidence from Mr Tyler, my inability to comprehend the contents of his report renders it unsafe to rely in any way on its contents. 20 It is possible to discern from the statements of agreed facts that the suspended ceiling, part of which was previously located below the alcove floor and which had been removed 2 to 3 days before the incident, was 4.5 metres above the height of the ground floor. It is said that the distance which the worker fell to the concrete floor was approximately 4.612 meters. Accordingly, it may be inferred that there was a gap of about 100 millimetres between the alcove floor and the ceiling below it which had been removed. It was an integral part of the prosecution's case that a "hazard was created following the removal of the suspended ceiling. This meant that the alcove floor was dangerous if a heavy person stood on it". 21 There is no evidence before the Court which, in my opinion, would indicate that there was any risk to the safety of any person in standing upon the floor in the alcove area. No evidence was adduced about any examination conducted of the flooring which failed and as to the likely manner in which it may have failed. Although there is evidence that the flooring material was cracked, as a matter of logic, the crack may have been caused by it falling a distance of over 4 meters. In the same way, there is no evidence as to how the flooring was secured in the alcove area, although one may possibly infer that some adhesive substance had been used at some stage. There is no evidence about the properties and suitability of the flooring material.

22 Mr Strickland of counsel, who appeared for the Prosecutor in each of the matters, submitted that it was possible to infer that the integrity of the alcove area floor was disturbed or otherwise affected by the removal of the ceiling work. As against the defendants, Austec and Lindner, there is no evidence of any kind which would support such an assertion. As against the defendant, Kaybron, this was a conclusion reached by persons associated with that company, but that conclusion was expressed in very general terms.

The Objective Seriousness of the Offence 23 The starting point for the assessment of penalty in each case is the objective seriousness of the offence (see Morrison v Coal Operations Australia (No 2) [2005] NSWIRComm 96 and the authorities cited therein). It is well established that, in determining the objective seriousness of the offence, the foreseeability of the creation of a risk to health and safety is a factor which is to be taken into account (see Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646). Accordingly, the extent to which the risk was foreseeable will assist in determining the level of culpability of each defendant. In Morrison a Full Bench of this Court observed that foreseeability was not necessarily the only factor to be taken into account in assessing the objective seriousness of an offence. In making this observation, the Full Bench had regard to the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (1999) 92 IR 188. His Honour (at 210-211) said that the "proactive approach" required by persons bound by the Act entitled the court to take into account the fact that work being undertaken was "very dangerous or perhaps even inherently unsafe" by reference to the particular industry or part of the industry with which the defendant was involved. In those proceeding his Honour was dealing with circumstances involving the construction of a bridge 16 to 18 meters above a gorge or gully which his Honour noted involved a significant risk to health and safety which was not a remote possibility. Whilst it might be said that the construction work being carried out by Austec and Lindner might have carried some inherent risk to the integrity of the alcove floor, there is, as I have previously indicated, simply no evidence to this effect. In the case of the defendants Austec and Lindner it must also be noted that none of the contract works required anything to be done to the alcove area, including the floor. 24 As Mr M Cahill of counsel, who appeared for Kaybron, submitted "…the more remote and less foreseeable a risk to safety, the less objectively serious the offence". 25 Of course, the question of whether and what remedial steps may have been taken to avoid or preclude the risk of injury is also bound up with the degree of foreseeability of the risk. 26 In the absence of any evidence as to what caused the alcove area floor to give way, it is difficult to assess the foreseeability that such an event might occur. In these circumstances I find it impossible to draw any particular inference as to what caused the floor in the alcove area to fail whilst the employee of Kaybron was standing upon it. On one view the absence of any factual evidence renders it unnecessary to resort to the requirement that the Prosecutor establish any such facts beyond reasonable doubt. 27 The Prosecutor, in fairness, recognised that the state of the evidence as to the foreseeability of the alcove floor area failing was less than clear. Mr Strickland submitted that the objective seriousness of each of the offences was in the "low to moderate" range. The way in which this was put in greater detail involved two distinct elements. The first was that the removal of the suspended ceiling created a situation where, if the alcove flooring failed, an effective barrier which may have prevented the worker from falling all the way to the floor had been removed. If I were to accept this assertion, it would follow that all structures where employees or others are required to work other than on a ground floor level, would need to have, in effect, a second floor in case the principal floor failed in some way. It might be appropriate, in my opinion, for such a course to be adopted so as to avoid a breach of the Act, but this would depend upon the integrity of the principal floor, about which there is no evidence. The second basis advanced on behalf of the prosecutor was that the removal of the suspended ceiling must have impacted adversely on the integrity of the alcove floor. As I have observed, such an assertion must be based upon some evidentiary material which would allow the Court to determine that such a proposition was established to the relevant standard. There is simply insufficient evidence to allow such a conclusion to be found to the requisite standard. I have already summarised the evidence with respect to the floor and such evidence that might indicate how it was attached, if indeed it was attached, to the frame on which it was placed. There is, however, no evidence at all that impacts upon the consequences of the removal of the suspended ceiling with respect to the integrity of the alcove floor. As I have already indicated, there is no evidence of any forensic examination which might give some clue as to what may have occurred. No one has expressed any opinion, expert or otherwise, concerning the likelihood or otherwise of the integrity of the alcove floor, having been adversely affected by the removal of the suspended ceiling. 28 It is obvious that the alcove floor failed. However, there is no evidence as to why or how it failed. There must be some causal relationship between the creation of the risk and the conduct of each defendant, whether by way of commission or omission. This is especially so in connection with prosecutions brought under s 8(2) of the Act because it is an essential ingredient that the risk to health and safety "arises from" the conduct of the undertaking of the defendant. Lest there be any doubt, I refer to a decision of a Full Bench of this court in Drake Personnel v WorkCover Authority of New South Wales (1999) 90 IR 342. At 449, in a joint judgment, Wright J, President, and Walton J, Vice President, said: "…a number of decisions of the Court have demonstrated, appropriately in our view, that the mere occurrence of an accident causing injury to employees of the defendant is not sufficient in itself to prove the commission of an offence under s15(1). It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the defendant and the consequent risk to the health, safety or welfare of its employees". Their Honours then went on to cite well-known authority in this area. For completeness, I note that that s15(1) of the Occupational Health and Safety Act 1993 is in sufficiently similar terms to s 8(1) of the 2000 Act. 29 In all the circumstances I agree with the submissions made by counsel for each of the defendants to the effect that the lack of any evidence of a risk of injury which was foreseeable renders the objective seriousness of each of the offences at the very low end of the range. Indeed, on one view of the matter, there is no evidence before the Court that there was any foreseeable risk of injury by reference to the integrity of the alcove floor other than the admission of each of the essential ingredients of the charge by the making of a plea of guilty, to which I have earlier referred 30 Each of the defendants was represented by a barrister and a firm of solicitors. Presumably, therefore, the Court can proceed on the basis that each of the defendants determined to enter a plea of guilty on the basis of advice properly given by legal practitioners. Accordingly, there can be no question that the plea of guilty was not made on a genuine basis or that there was any other factor which might militate towards the giving of a direction that a plea of guilty not be entered, in the limited circumstances as referred to by Dawson and McHugh JJ in Maxwell, previously referred to, at 511. Of course, in the case of the defendant Kaybron it needs to be borne in mind that the premises were controlled by it, and that it had an overall obligation under s 8(1) to ensure that its premises were safe and without any risk to health. The circumstances of each of the other defendants is, I feel, somewhat different in that the alcove area did not form, in any way, any part of the contract works and there is simply no evidence of any kind which would allow the court to infer in any way that the demolition of the ceiling or the undertaking of any other part of the contract works in some way impacted upon the integrity of the alcove flooring.

Other Matters Concerning Penalty 31 With respect to each defendant I acknowledge that it is necessary to take into account both specific and general deterrence. Even though Vidual is in liquidation, there is evidence that the defendant Lindner is still engaged in the construction industry, albeit in an employed capacity. 32 There are a number of subjective matters which were agreed between the parties. None of the defendants had any prior convictions for a breach of the Act. Each of the defendants expressed contrition and cooperated fully in the investigations conducted by the WorkCover Authority of New South Wales. Each of the defendants demonstrated a recognition of responsibilities attaching under the Act and demonstrated there were policies and processes in place designed to bring about compliance with the requirements of the Act. Following the incident, the defendants Kaybron and Austec introduced changes to their occupational health and safety procedures designed to improve their commitment to complying with the Act's requirements. The defendants Kaybron and Lindner pleaded guilty at the earliest possible opportunity. The defendant Austec pleaded guilty at an early opportunity. 33 With respect to each of the defendants Kaybron and Austec the maximum penalty is $550,000. With respect to the defendant Lindner the maximum penalty is $55,000. 34 The defendant Lindner filed affidavit material as to his financial circumstances and his means, which the Court is required to take into account under s 6 of the Fines Act. The affidavit material was not challenged by the Prosecutor. 35 The evidence as to Mr Lindner's financial circumstances is to the effect that he and his wife have a joint income which only just covers his expenses, three dependants and debts of about $38,000 with no tangible assets. I shall take these circumstances into account in the context of considering an appropriate penalty by reference to the objective seriousness of the offence and the other matters to which I have referred. 36 Having regard to all of the matters to which I have referred, and in particular the lack of any appropriate evidence as to the foreseeability of this unfortunate incident, I propose to impose a monetary penalty on Kaybron of $12,500; and on Austec of $7,500. In the case of the defendant Lindner, having regard to all of the matters and, in addition, his financial means and circumstances, I intend to impose a fine of $200. 37 The Prosecutor sought and is entitled to a moiety of each of the fines. 38 The Prosecutor has sought an order for costs in each of the proceedings, which was not resisted. However, I shall reserve the right of the parties to have costs assessed in the event that sensible agreement cannot be reached between the parties, particularly having regard to the level of penalty fixed. In accordance with observations of Staunton J in Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & Ors [2005] NSWIRComm 31, I shall defer recording a conviction and formally imposing any fine until the question of costs has been resolved. Liberty to apply may be exercised by application by any party to my Associate.

AMENDMENTS HISTORY: 15/09/2005 - - Paragraph(s)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(1997) 41 NSW LR 374

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Cases Cited (9)