Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others

Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others - [2006] NSWIRComm 97 - NSWIRComm 2006 case summary — Zoe

[99]

On 16 June at approximately 12.45 p.m Inspector Waterhouse attended the premises and performed a factual inspection and took 16 photographs. Tab F of the tender bundle is a copy of the photographs. Inspector Waterhouse observed the following: (i) Brickwork that had been partially completed to a height of between approximately 3050 mm and 1560 mm. (ii) In the centre of the rear area was a single course of brickwork aligned to an east west direction approximately 1095 mm long, which Inspector Waterhouse was informed by the Site manager, Mr Didio, to be the base of collapsed wall. This was located 2200 mm north of the external wall on the south of the new structure and approximately 3000mm from the western external wall. The bricks are of a type called "jumbo" bricks and measure approximately 226 mm long x 120mm and are pink in colour. (iii) The external wall to the south is of a two-skin construction each skin being constructed from 110 mm wide bricks. The overall thickness of the wall was 230mm and it was approximately 1560mm high. Part of the mortar in the wall was still wet and appeared to have been recently laid. In the east end of this wall there was a steel column set within the internal brick skin. (iv) On the ground immediately to the north of the base of the collapsed wall Inspector Waterhouse observed, lying on their side, three courses of brickwork 1095mm long still cemented together with dry mortar. (v) Approximately 1000mm north of the base of the wall was a wheelbarrow containing a number of bricks that appeared to come from the collapsed wall. On a brick that was in this wheelbarrow Inspector Waterhouse observed some fibres, which had the appearance of human hair. The barrow was yellow in colour and covered in dried mortar. (vi) The area surrounding the barrow was wet with what appeared to be water. (vii) Immediately to the south of the base of the collapsed wall were a number of bricks that appeared to have come from the collapsed wall. Contained within these bricks was a length of PVC flashing approximately 1050mm long. (viii) Approximately 2000mm to the south of the base of the collapsed wall two stacks of unlaid bricks were observed. Between these brick stacks was a red metallic tool box.

[110]

10 The case advanced by Ms McDonald of counsel for the prosecutor was that the offences here in question were serious. They each involved an obvious and foreseeable risk of injury, so serious that it could result in death. There were also simple remedial steps which could have been taken to control or avoid the risk. In fixing penalty the death of Mr Hands was an aggravating factor necessary to be taken into account, consistently with s 21A of the Crimes (Sentencing Procedure) Act 1999. 11 It followed that in this case, there was a particular need to pay attention to the element of general deterrence in the sentences imposed. It was relevant that in other cases, offences where other walls had collapsed at construction sites had come before the court. This also demonstrated how obvious a risk such as this was. 12 It was accepted that specific deterrence had a lesser, but somewhat different role to play in the case of the company and the two directors. 13 The evidence showed that the safety systems that the corporate defendant had put in place were not site specific, although referring to the need to ensure the stability of structures of the kind that here collapsed. The systems put in place after the accident, by way of comparison, were site specific and focussed on analysing, identifying and controlling risks at the site. 14 As to questions of parity and culpability, it was submitted that these three defendants were equally culpable. Others had also been charged with offences under the Act, in circumstances where it was this corporate defendant which was the principal contractor on the site. The wall which collapsed was constructed over a number of days by others, who it was argued were equally culpable for the failure to control the obvious risk created by the failure to brace the wall. That bracing could have been provided by easily available means. This circumstance, it was submitted, in terms of parity, would not necessarily result in similar sentences for all defendants, given that sentencing depended on evidence led in each case, both as to objective matters and subjective matters, relevant to each individual defendant, as well as the maximum penalty applicable to the offence in question in each case. 15 The evidence in this case showed that various people and entities had different responsibilities at the site and had made different contributions to the risks which had materialised, as reflected in the offences with which they were each charged. It was submitted that it followed that while there was equal culpability between all of those who had contributed to the risk in one sense, similar sentences would not necessarily result. That would depend on the evidence led in each case as to a range of matters. In any event, what sentences might be imposed on other defendants could not be known at this stage, as those other prosecutions had not yet been heard. As for the manslaughter charges which two people faced as the result of the death of Mr Hands, it was argued that they were irrelevant to the sentences here to be imposed. 16 As to the position of Mr Didio, the supervisor engaged by the corporate defendant, it was noted that he had not been charged with any offence under the Act. This was the result of a decision made by the prosecutor. Under the scheme of the Act, that decision was a matter for the prosecutor to make. It was argued, however, that it would be concluded, on the evidence, that Mr Didio was less culpable than these defendants for what had occurred, or those who faced other charges under the Act. 17 The prosecutor also acknowledged the early pleas entered and the steps taken by the defendants to address the safety concerns which had been identified, after the accident. 18 The case advanced by Mr Henskens of counsel for the defendants was that the prosecutor's submissions on comparative culpability and parity could not be accepted, having in mind the applicable Full Court authority. What was required was an assessment of the objective seriousness of each offence, here before the Court. That task had to be undertaken in circumstances where a number of defendants were at the site in different capacities, each having contributed to the relevant risk in different ways. It followed that the objective seriousness of each offence, in those circumstances, might differ. In these three cases, that was argued to be an important factor to be considered in the assessment of the penalty to be imposed. 19 Penalty depended on the objective seriousness of the offences. That would be assessed, it was submitted, not from the consequences which had flown from the breach, but from a consideration of all the circumstances, including all those persons who had contributed to the risk, thereby giving rise to differing levels of culpability for the risk. 20 While the prosecutor acknowledged that here various defendants had different responsibilities on the site and had contributed in different ways to the risk which had materialised, the result must be an acceptance that their culpability for what had occurred was also different. It could not be equal. In this case, on the evidence it would be concluded that the culpability of Mr Moore and Mr Didio for the risk in question, for example, was higher than that of these defendants. This was a matter which had to be reflected in an assessment of the objective seriousness of these offences. 21 Mr Rosenbaum and Mr Baidarman were charged with having committed offences by reason of their offices as directors of the company in charges brought under s 10(1) of the Act. This section was concerned with those controlling premises used as a place of work. Consideration would also be taken of the fact that, in reality, they had intermittent control of the premises, in the sense that true control at the time of the accident was being exercised by Mr Didio, the corporate defendant's supervisor on the job and Mr Moore, the bricklaying contractor, who each also had responsibility for ensuring safety. 22 In assessing the objective seriousness of these offences, it was also relevant that on the evidence, the corporate defendant engaged an appropriately experienced supervisor, to provide day to day supervision of the building activities on the premises, with specific responsibilities in relation to safety. It had also implemented systems which had recognised the risk in question. Even the applicable Australian Standard which required the wall which fell to be braced, had been identified. This was also relevant to an assessment of the seriousness of the defendants' breaches of their obligations. While it was accepted that they could not delegate those obligations, the evidence showed that they had been proactive in attending to them, albeit not proactive enough. 23 The evidence showed that the steps which were taken, were in fact sufficient to have the result that the risk in question was recognised by Mr Didio, who raised the need to brace the wall with Mr Moore. There was no suggestion that this risk, or the way that Mr Didio and Mr Moore decided to deal with it, was ever drawn to the attention of the defendants. 24 The defendants relied on Mr Didio and Mr Moore to act in accordance with the safety system established, which required the wall to be braced. The risk created by the unbraced wall manifested, because Mr Didio accepted what Mr Moore told him and no bracing of the wall was put in place, despite the obvious and identified risks which flowed from this unstable structure remaining unbraced. 25 The evidence here led demonstrated the involvement of Mr Didio and Mr Moore in what occurred. That a prosecutor had decided not to charge Mr Didio with an offence under the Act, was submitted to be irrelevant to a consideration of his contribution to the risk, demonstrated on the evidence here before the Court. That he and Mr Moore had been charged with manslaughter was also submitted to be irrelevant to an assessment of the penalty here to be imposed. The culpability for the risk which had materialised had to be determined on the evidence and should in this case result in a finding that these defendants were less culpable than the others who had contributed to the risk to safety in question. 26 It was further argued that the practical consequence of that situation must be that these defendants must receive a 'lesser penalty than would be the case if this risk was wholly contributed to by them'. This was because the objective seriousness of their offence was less than the offences committed by others, a matter which must result in a lower penalty, compared to that which would be imposed on someone who had contributed entirely, or in a majority sense, to the risk. 27 It was also submitted that the question of parity did not strictly arise at this time, because no other sentences had yet been imposed. Nevertheless, because there was a need to ensure parity in sentencing, it would be important in this case to expose the Court's finding on relative culpability of the different parties involved, so that a later court could deal with the question of parity in the sentences which it had to impose. 28 It was also argued that specific deterrence would have no role to play in penalty for these defendants, given the evidence as to the consequences of this accident for each defendant. All defendants were of previous good character. The evidence that the company was unlikely to engage in further construction work was unchallenged. The same conclusion would be reached in relation to Mr Rosenbaum and Mr Baidarman, given their ages and their evidence as to the effects which these events had had on them, as well as the steps they had taken in the aftermath of the accidents. It followed that no need for specific deterrence arose. 29 As to subjective matters, it was submitted that the evidence revealed the defendants' genuine remorse and contrition for their breaches of the Act. Consistently with that position, they had entered early pleas and had fully co-operated with the Authority. This should be reflected by way of mitigation of the penalty, including in relation to utilitarian savings, which included efficiency in the administration of justice and saving witnesses the need to give evidence. Consideration

[114]

And again in WorkCover v Schrader at para [61]: The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. However, when 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 34 The parties differed, however, as to the result of the application of that approach in this case, where other persons and entities apart from these defendants, including Mr Moore and KLA Constructions, have been charged with offences under the Act, (but not Mr Didio), and where Mr Didio and Mr Moore have been charged with manslaughter. None of those charges have yet been heard. 35 I am satisfied that in fixing penalty, consistently with the approach discussed in Schrader, attention must be paid to each defendant's respective contribution to the risk in question, having regard to the evidence here led. The corporate defendant was the owner of the property and the principal contractor on site. It has been charged with an offence under s 10(1) of the Act as a person who had control of the premises. The charges laid against Mr Rosenbaum and Mr Baidarman flow from the provisions of s 26(1), by virtue of their positions as directors of the corporate defendant, in circumstances where they each were also personally involved in the project. 36 These defendants each properly accepted their obligation under the Act to be proactive in relation to safety, accepting that they could not delegate to others such as Mr Didio and Mr Moore, their obligations under the Act. 37 In considering the nature and seriousness of those offences, it is relevant to take account of the fact that the need to ensure the stability of structures such as the wall which here collapsed, was a matter addressed in various parts of the paper safety system which the corporate defendant had in operation, even though site specific details had not been put into place, as those systems contemplated. The relevant Australian Standard was also identified. While these paper systems could have been improved, had the systems in place been absent, undoubtedly these offences would have been more serious than they were. 38 In any event, the expert evidence suggested that this structure was so unstable, that it did not require a safety system, for those involved in the supervision of this bricklaying project, to recognise the danger it posed. Indeed, the site supervisor Mr Didio in fact identified the risk and raised it with Mr Moore, the bricklaying subcontractor. Again, in assessing the objective seriousness of these offences, it is relevant that the corporate defendant did engage an experienced supervisor, who in fact, recognised that risk. Had there been no supervisor engaged, or had the risk been entirely unidentified by the supervisor, these offences would also have been more serious. 39 While neither Mr Rosenbaum and Mr Baidarman, themselves recognised the need to brace the wall before it collapsed, Mr Didio, the supervisor engaged by the corporate defendant to work at the site, did. Mr Baidarman's evidence was that he attended the site most days and had discussed safety issues which had arisen from time to time with Mr Didio and the relevant subcontractors. There was no suggestion that this risk was ever raised with him by Mr Didio or anyone else. Mr Rosenbaum had also attended the site about twice a week and he, too, had discussed safety matters with those working on the site, on such occasions. Again, there was no suggestion that this risk had been discussed with him. Mr Rosenbaum recollected a scaffolding erected adjacent to the wall which collapsed, a few days before the accident and deposed, after consideration that 'this could have acted as a barrier in the event of the fall of the wall.' 40 The possibility, that given their experience in the building industry, that Mr Rosenbaum and Mr Baidarman should themselves have recognised the risk, was not explored in the proceedings. Neither Mr Rosenbaum nor Mr Baidarman were required for cross examination, they having each accepted their responsibility for the offences with which they were charged and the problems which had flown from their reliance on the expertise of others. 41 On the evidence, the approach adopted by Mr Didio and Mr Moore to the obvious risk posed by this unbraced wall, appears entirely inexplicable, given the extreme instability of the structure and the fact that work was proceeding in close proximity to the wall. The defendants properly accepted their guilt for the offences charged. From the individual defendants' point of view, culpability flowed from the corporate defendant's obligations to ensure safety at these premises. The systems in place did not ensure either that a risk was not created by the erection of an unbraced wall. Nor did it ensure that once the risk had been created and recognised by Mr Didio, that he acted to ensure that it was removed, as he should have. Clearly, Mr Moore's assurances to Mr Didio, ought not to have been given, or accepted. The supervision provided to Mr Didio, also failed to ensure that he did not permit such an unsafe situation to persist. 42 This circumstance is not dissimilar to that considered by the Full Court in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121. There at issue was the defendant's responsibility for a risk to safety which had arisen at a construction site, in circumstances where the defendant's site manager had detected the risk which had there arisen, and had halted the work, more than once, so that it could be dealt with. The supervisor, also inexplicably, had later permitted the work to continue, without removal of the risk, which then materialised. While the Full Bench was divided on the question of whether the s 53 defence had been made out in the particular circumstances, there was no question that the defendant had committed the offence. Indeed the defendant accepted, as did the defendants in this case, that they could not delegate their responsibilities under the Act to ensure safety to others.

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47 Again, while it appears that there was in this case, a 'managerial mind' directed to ensuring safety at the site, the attention paid was inadequate. Nevertheless, it must follow that, had neither Mr Rosenbaum or Mr Baidarman themselves paid such attention to safety matters at the site, these offences would have been even more serious than they were. 48 There was no cross examination of either Mr Rosenbaum or Mr Baidarman. On the evidence they had some experience in building work. Whether their experience in building work was such that they should, like Mr Didio, have recognised the risk which arose is difficult to judge. Given that these issues were not explored in the proceedings, any conclusions about such matters can not properly be reached and any matters of doubt must be resolved in the defendants' favour. (R v Olbrich (1999) 73 ALJR 1550 at 24-28; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698-9.) Had the evidence shown that they had, or ought to have detected this risk and like Mr Didio and Mr Moore, had failed to deal with it, again these offences would clearly have been more serious ones. 49 It follows in this case, that it must be accepted that the steps which Mr Didio and Mr Moore respectively took and failed to take in relation to the bracing of the wall, were the immediate cause of the risk materialising, in circumstances where they each had responsibilities themselves to ensure safety. These defendants, nevertheless, have properly accepted their own contribution to the risk. That was a proper acceptance, given their respective control of the site as principal contractor and owner of the premises in the case of the corporate defendant, and their involvement in the project itself, as directors, in the case of Mr Rosenbaum and Mr Baidarman. 50 It was common ground between the parties that in here assessing penalty, some regard must be paid to the culpability of others who had made a contribution to the relevant risk. On the evidence here led, I am satisfied that while culpability for the risk in question was equal, as between these three defendants, the overall culpability of these defendants for what here occurred, was less than that of others involved. 51 The principle of parity was also addressed by the parties. The principle is that discussed by the High Court in Postiglione v The Queen (1997) 189 CLR 295 (at 301 - 303):

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52 While the responsibility of these defendants for the risk in question was accepted, the authorities demonstrate that in fixing penalty, some account must be taken of the fact that a potential defendant, Mr Didio, has not been charged under the Act, in relation to the role which he played for the events which have led to these defendants' convictions. (See Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312 at 322; WorkCover Authority of New South Wales v Walco Hoist Rentals Pty Limited and Anor (No2) (2000) 99 IR 163 at [31] to [34].) To fail to take that fact into account in determining penalty, might be to give rise to a justifiable sense of grievance, as to the penalty imposed. Accordingly, I have taken into account. 53 It was Mr Didio, after all, who raised with Mr Moore, the principal of the bricklaying subcontractor, KLA Bricklaying Pty Ltd, the need to brace the wall, while it was being constructed. Mr Moore advised that it was unnecessary to brace the wall. Mr Didio accepted the advice, notwithstanding its apparent instability on Mr Carrick's assessment, and despite the fact that the safety system in place clearly requiring that such a wall be braced. So it was that the wall remained unbraced, up to the point at which it collapsed onto Mr Hands. While it was a matter for the prosecutor to determine, whether or not to charge Mr Didio with any offence, I am unable to accept the submission on the evidence here led, that he was less culpable for the risk in question, than these defendants. 54 I turn to the question of the element of deterrence. Given the uncontested evidence that there was no intention that the company would again engage in construction work, the prosecutor accepted that there would be but a limited role for specific deterrence as an element of penalty, in this case. It was submitted that because the company had not been wound up, the possibility that a different course might be taken in future remained and would result in some element of specific deterrence. 55 A different submission was put in relation to Mr Rosenbaum and Mr Baidarman, in respect of whom the evidence was submitted to be to different effect. It was accepted, however, that specific deterrence would also have a lesser role to play in the penalty to be imposed upon them, than would be the case if they were still engaged in building work. Nevertheless, it was argued that some account of such deterrence must be taken. 56 For the defendants it was argued that the evidence showed that Mr Rosenbaum and Mr Baidarman were in a similar position to that of the corporate defendant and specific deterrence should play no role at all in penalty. They were respectively 56 and 60 years of age; had each been traumatically affected by Mr Hands' death, which they sincerely regretted; neither had engaged in building work since the completion of this project and in reality, were in a position that the likelihood that they would engage in further work of that kind, or would re-offend, was small. 57 As for general deterrence it was argued for the prosecutor that this must play a particular role in the circumstances of this case, given that the collapse of unsupported walls on building sites have resulted in other serious accidents and prosecutions before this Court. 58 I accept the submissions advanced in relation to the issue of general deterrence. The defendants did not argue against them and given the circumstances of this accident and other cases where unsupported walls have collapsed on building sites, leading to serious injury or death, I take the view that general deterrence has a real role to play in the penalty here imposed. As to specific deterrence, I am satisfied, on the evidence, that it has a relatively small role to play in all three cases. I do not exclude it completely, but accept that the prospect that these defendants will re-offend, or will engage in building work again, given their respective circumstances, is very small. 59 In assessing penalty, also to be weighed are other relevant matters, such as the defendants' early pleas of guilty, which together with the evidence led, demonstrated their real remorse and contrition for what had resulted from their failures. The fact that this was not a case where the defendants had paid no attention to safety at the site, is also relevant in assessing penalty. Various safety systems had been implemented, which identified the need for bracing structures such as this. While those systems did not deal with site specific safety issues, the risk to safety which materialised was, in fact, identified by Mr Didio, the supervisor engaged by the corporate defendant, with day to day responsibility to ensure safety at the site. As I have observed, rather surprisingly, in these circumstances, no steps were taken by Mr Didio or Mr Moore to address that risk. These defendants also gave prompt attention to improving safety at the site after the accident. Not only did they review the paper systems in place, and take advice from a consultant, Mr Rosenbaum and Mr Baidarman themselves undertook various safety training after the accident, so that they could ensure that the defendants' obligations under the Act were met. This must also be taken into account, by way of mitigation, as must the assistance which the defendants provided to the prosecutor. 60 Despite these mitigating factors, I am satisfied that a significant penalty must result in each of these cases. While this is a first offence for each defendant, the evidence as to the severe instability of this wall, the obvious risk that even a slight wind, or an inadvertent touch, would cause it to fall and the consequences of such a fall, if the wall struck a person, make that conclusion unavoidable. The defendants had an obligation to ensure safety at this site. On the evidence, I am unable to accept the submission that in practical reality, they did not always have control of these premises. The corporate defendant was not only the owner of the property, but also the principal contractor and Mr Rosenbaum and Mr Baidarman were on the site on a daily or bi-weekly basis, a matter I have taken into account in a way favourable to the defendants, in assessing the objective seriousness of the offence. I am satisfied that the defendants properly accepted that the steps they had taken in relation to safety on the site which they controlled, failed to satisfy the onerous obligations imposed upon them by the Act. 61 I have concluded that the penalties imposed for these serious offences must be significant - reflective of the circumstance where yet another unbraced wall on a construction site has collapsed. The defendants failed to ensure that obvious and available steps which would have precluded this risk materialising, were taken. Most regrettably, Mr Hands has suffered the consequence of what was entirely foreseeable and foreseen, from such an eventuality. 62 I have concluded that a penalty of $150,000 in the case of the company and $15,000 in the case of both Mr Rosenbaum and Mr Baidarman, must result. I note that in the absence of the defendants' early pleas, the penalties must have been significantly higher. 63 In arriving at these figures, I have had regard to the evidence and the various matters I have mentioned as necessary to weigh in the sentencing process. These figures also take account of the view which I reached, that the defendants were entitled to a significant discount for the mitigating matters I have discussed, including in relation to the undoubted utilitarian savings flowing from the entry of their early pleas. 64 As to this aspect, the prosecutor urged that I adopt the approach which I discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] - [31]:

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