John Holland Pty Ltd v Industrial Court of New South Wales and ors (2010) NSWCA 338
Johnson v Miller (1937) 59 CLR 467 and John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
Kirk & anor v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531
Maxwell v The Queen (1995-1996) 184 CLR 501 at 510Morrison v Chevally [2010] NSWIRComm 116
Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7Thorneloe v Filipowski (2001) 52 NSWLR 60
Walsh v Tattersall (1996) 188 CLR at 110 et seq)
Category: Principal judgment
Parties: Inspector Michael Duncan (Prosecutor)
Oliver Joseph Enright (First Defendant)
Mainbrace Constructions (NSW) Pty Ltd (Second Defendant)
Representation: Mr Reitano of counsel (Prosecutor)
Mr Murphy of counsel (First Defendant)
Mr Kostopoulos of counsel (Second Defendant)
Criminal Law Practice, Legal Group, WorkCover Authority (Prosecutor)
Pendlebury Workplace Law (First Defendant)
Kreisson Legal (Second Defendant)
File Number(s): IRC 376 of 2009
IRC 378 of 2009
[2]
BACKGROUND
1Inspector Michael Duncan, a WorkCover Inspector appointed under the provisions of the Occupational Health and Safety Act 2000, has commenced two prosecutions following a March 2007 fatal workplace accident. On 29 March 2007, a development known as the "Kooindah Waters Project" was being constructed in Pollock Avenue, Wyong. That project involved the integration of the residential/golf resort complex into the existing surrounds of the Kooindah Waters golf course. Mainbrace Constructions (NSW) Pty Ltd ("Mainbrace") was contracted for development works in what was known as Precinct 1 being the design and construction of a health facility building, a golf club house, an apartment building and carpark. The work performed by Mainbrace included the design and construction of these facilities. In that role, Mainbrace contracted with Gallim Constructions Pty Ltd ("Gallim") to provide supervision, labour, materials, testing, transport and equipment for the supply and laying of bricks and blocks at the site and in particular, in relation to Precinct 1 works. On 29 March 2007, Mr Robert George Watson was employed by Gallim as a bricklayer. In the course of performing those duties, a completed brick wall collapsed on him and Mr Watson received fatal injuries.
2Gallim entered voluntary liquidation in late February 2008. In March 2009, Inspector Duncan commenced proceedings against Oliver Joseph Enright, the sole director of Gallim, alleging a breach of s 8(1) of the Act by virtue of the operation of s 26(1) of the Act. At the same time Inspector Duncan commenced proceedings against Mainbrace alleging a breach of s 8(2) of the Act. Allowing for differences in the entities being prosecuted, the particulars in each case were the same: for present purposes the relevant particulars were as follows:
(b) the defendant failed to ensure that there was a safe system of work in place at the site for brick and block laying in that the defendant failed to ensure that brick or block walls at the site, and in particular partition walls, were adequately braced or otherwise supported;
(c) the defendant failed to ensure that there was a safe system of work in place at the site for brick and block laying in that the defendant failed to ensure that lateral loads were not placed against brick or block walls at the site, and in particular partitioner walls, that were not adequately braced or otherwise supported;
(d) the defendant failed to ensure employees and persons other than its employees did not undertake work in the vicinity of brick or block walls at the site, and in particular partition walls, that were not adequately braced or otherwise supported;
(e) the defendant failed to ensure that an adequate risk assessment of brick and block laying at the site was undertaken so as to identify and guard against the risk to persons other than its employees of brick or block wall collapse;
(f) the defendant failed to provide adequate information, instruction and training to persons other than its employees in relation to brick and block laying at the site;
(g) the defendant failed to provide adequate supervision to persons other than its employees in relation to brick and block laying at the site.
As a result of the abovementioned failures, Robert Watson was placed at risk and suffered fatal injuries .
3On the return date of the summons and Application for Order Mr Enright entered a plea of guilty. In relation to Mainbrace there were continuing discussions as to the details of the Agreed Statement of Facts and a plea of guilty was entered at the third listing of the matter,
[3]
EVIDENCE
4Although these two matters were heard on the same day, the parties consented to the matters being heard consecutively. In both cases the Agreed Statement of Facts dealt with the different circumstances of each defendant but the annexures were identical. The Agreed Statement of Facts appear as an annexure to this judgment.
5The annexures in each matter contained the following:
(a) a photograph of the workplace, including the area where the wall fell, taken by Mr Michael Fague, the full-time site project manager employed by Mainbrace;
(b) Mr Fague's statement dated 3 September 2007;
(c) an engineer's report of Mr Joe Tropiano, structural engineer of Taylor Thompson Whiting dated 30 March 2007;
(d) an engineering report prepared by Mr Chris Turner, a WorkCover senior engineer, Strategic Specialist Services Group dated 4 November 2008;
(e) factual inspection report prepared by Inspector Flintham dated 30 March 2007;
(f) 20 WorkCover photographs taken by Inspector Flintham dated 30 March 2007;
(g) Mainbrace Constructions Pty Ltd "Hazard and Risk assessment Revision 1A, Kooindah Waters Golf Resort, Stage 2" dated 22 November 2006;
(h) Mainbrace Constructions Pty Ltd "site safety plan, revision D, project job No 402, Kooindah Waters Gold Resort" dated 22 November 2006;
(i) Mainbrace Constructions Pty Ltd Site Induction Register and Site Induction Forms of various entry dates;
(j) Mainbrace Constructions Pty Ltd "Safety Plan Review Register" and "Safety Plan Review Checklists" of various dates;
(k) Mainbrace Constructions Pty Ltd "Work Method Statement Checklists" of various dates;
(l) Mainbrace Constructions Pty Ltd "Plant and Equipment Register" of various entry dates;
(m) Mainbrace Constructions Pty Ltd "Toolbox Meetings Records" of various entry dates;
(n) Mainbrace Constructions Pty Ltd "Weekly Safety Walk Minutes" of various entry dates;
(o) Mainbrace Constructions Pty Ltd "Monthly Safety Reports" of various dates;
(p) Mainbrace Constructions Pty Ltd "Safety Improvement Notices" issued on Gallim dated 27 March 2007 in respect of non-compliance with the site safety police by failure of two of Gallim's employees to wear appropriate equipment, namely, hard hat and vest;
(q) Gallim Constructions Pty Ltd "safety management plan" dated 16 January 2007 for brick and block laying work at the site;
(r) Gallim Constructions Pty Ltd "Hazard Identification and Risk Assessment" dated 16 January 2007 in respect of block laying works at the site;
(s) Gallim Constructions Pty Ltd "Safe Work Method Statement" (SWMS) dated 24 January 2007;
(t) Gallim Constructions Pty Ltd "Training Attendance Register" unsigned and undated and "OHS induction register" unsigned, dated 16 January 2007;
(u) Gallim Constructions Pty Ltd "Electrical Equipment Register" unsigned and undated;
(v) Gallim Constructions Pty Ltd "Lifting Gear Register" undated;
(w) Gallim Constructions Pty Ltd "Personal Protective Equipment Issue Record" dated 5 February 2007, signed by some but not all contractors engaged by Gallim;
(x) Gallim Constructions Pty Ltd "Record of Toolbox Talks" unsigned and undated;
(y) Gallim Constructions Pty Ltd "Subby Pack Check List" unsigned and undated;
(z) WorkCover Prohibition Notice No 144239 issued to Mainbrace Constructions Pty Ltd dated 29 March 2007;
(aa) Gallim Constructions Pty Ltd revised SWMS dated 24 January 2007;
(bb) judgments in relation to prior convictions of Mainbrace Constructions Pty Ltd being Inspector Charles v Mainbrace Constructions Pty Ltd [1999] NSWIRComm 463 (re liability) and [2000] NSWIRComm 36 (re penalty);
(cc) Statement of Prior Convictions for Mainbrace Constructions Pty Ltd.
It was an agreed fact that Mr Enright (and so far as is relevant, Gallim) had no prior occupational health and safety convictions .
6The prosecutor also handed up four Victims' Impact Statements prepared by members of Mr Watson's family. A lengthy, typewritten statement was prepared by Mr Watson's wife, Mrs Kathleen Watson. Ms Hollie Watson prepared a Victim's Impact Statement noting that she was in Year 10 when her father was killed. Ms Tianna Watson prepared a Victim's Impact Statement stating that she was ten years' old and attending school when her father was killed at work. Mr Kyle Watson prepared a Victim's Impact Statement and is Mr Watson's eldest son. These statements were marked for identification but having concluded that in each case the defendants are guilty of the breach with which they are charged, the Victims' Impact Statements are accepted into evidence in the proceedings. Mrs Watson chose to read her statement to the Court. Those statements demonstrate the ongoing grief and dislocation of the family following the death of Mr Watson. From their various perspectives those statements speak in heartfelt terms of the devastating consequences that followed this workplace accident and how, nearly three years after that accident, their lives in almost every respect continue to be devastated and how the entire family has struggled, largely without success, to return to some form of normality. It is quite impossible to fully appreciate how Mrs Watson found the strength to read her statement to the Court and it was clear that the sudden loss of Mr Watson remains a raw and ongoing source of distress, disbelief and disillusionment. Unfortunately, there is little the Court can do directly for the family to assist them in their grief other than by way of words of sympathy but the family should understand that the contents of their statements which appear to have been carefully prepared, are an important part of not only informing the Court of the consequences of workplace accidents but also serve to bring home to defendants the ongoing effects of their acts and omissions in the workplace. The Court expresses its sympathy to the family for their tragic loss.
7The evidence from Mr Enright was constituted by his sworn affidavit and an annexure, being Gallim's Safe Work Method Statement sent to Mainbrace. At the time of the accident, Mr Enright was the sole director of Gallim and that company provided building construction services by supplying workers directly for construction sites. Mr Enright had served a bricklaying apprenticeship in Ireland and completed the course in 1986. He then worked on various building projects in London and Sydney before he obtained his builder's licence in 1996.
8Since 1996 the company, as a sub-contractor, had successfully completed various domestic, commercial and industrial masonry projects ranging from new houses, apartments, factory units, industrial units and schools and had done so under principal or head contractors such as Fugen, St Hilliers, G & T Constructions, Ricon Constructions and Consolidated Constructions. Mr Enright said it was usual for the company to engage three to four sub-contractors on these projects. On the Koonidah Resort Project the company had engaged up to 16 sub-contractors and that was an unusually large number.
9Gallim had entered a sub-contract agreement with Mainbrace to provide bricklayers and labourers for the residential section of the project. The company had provided Mainbrace with a number of documents, including a Safe Work Method Statement (SWMS) dated 24 January 2007 and Mr Enright spoke about that document addressing perceived risks associated with the job. Item 14 of the SWMS dealt with the task of bracing of brick and block walls and identified the hazard of the walls falling on an employee. The controls to be adopted involved free-standing walls (not tied) to be braced at an angle of 45 degrees creating a right-angle support for the wall to prevent it collapsing. The person who was to ensure that this occurred was the site manager and employees. Mr Enright said that this approach had been adopted with previous contracts and represented standard practice on jobs in Sydney as well as within New South Wales. He had told the company's workers not to lean anything against the walls. In practice, the SWMS in relation to free-standing double skinned brick walls involved the use of planks at 45 degree angles to give the wall stability until the mortar set. The bracing was then removed prior to the construction of adjoining walls which provided structural stability to the wall first built. That practice had been followed on this project site and was a practice that Mr Enright had observed on building sites in which he had worked throughout his time in the industry and over 20 years or so. He had not seen that practice as constituting a safety risk during that lengthy period. He had not been advised that the practice constituted a safety risk by a principal contractor or by a WorkCover Inspector until the accident involving Mr Watson.
10To the best of Mr Enright's recollection, the wall that had fallen on Mr Watson had been braced in the manner he described. It was now apparent, however, that the bracing was removed some time prior to the accident but Mr Enright did not know when or how long that had occurred before the accident. He stated that he did not remove the bracing from this wall nor did he give any directions to any other worker to do so. It was also apparent to him that the wall fell on Mr Watson as a result of someone leaning scaffolding planks against the wall but Mr Enright was not aware of this happening before the wall collapsed and the practice was contrary to his verbal directive issued to Gallim workers.
11In relation to safety systems, Mr Enright said that all workers at this site were required to undertake a safety induction course on site provided by Mainbrace. At the site, Gallim had at least one supervisor on site at all times and on the day of the accident, two supervisors from the company, including himself, were working on the same floor where the accident occurred. The supervisor did not give Mr Watson any direction to commence work on the patio wall on which he was working when the accident occurred. That patio wall would not normally have been built until after the internal wall had been built, adjoining at 90 degrees to the wall in question and thus giving it greater stability had it been completed. Mr Watson had been directed to proceed to a different wall to complete two courses of bricks to take the wall to the required height. The supervisors and Mr Enright were setting out further walls in readiness for the bricklayers to commence building and this was standard practice. Mr Enright did not know why Mr Watson was working at the place where the wall fell and at the time, Mr Enright was unaware that he was working in that area.
12Weekly safety walks were conducted by Mainbrace at this site where issues of concern could be raised and referred to appropriate contractors for action. By the end of March 2007, Gallim had constructed at least eight similar walls to the wall that fell using the same procedure and had received no notices from Mainbrace. Since the accident involving Mr Watson, Mr Enright said he had been scrupulous in ensuring that all masonry and brick walls for which he was responsible were securely braced or otherwise rendered stable to ensure that a similar tragedy did not occur again. Following the accident, Gallim contacted all employees and offered individual or group counselling. Mr Watson's wages were paid to his son-in-law and Mr Enright authorised a cash payment of $2,000 in order to help cover immediate family expenses. During the two weeks the site was shut down after the accident, he continued to pay wages to Gallim's employees. In late April 2007, Gallim made a further payment of over $57,000 to Mr Watson's family. Mr Enright said he co-operated as fully as he could with the WorkCover investigators and provided them with everything they requested. He did everything he could to ensure that other Gallim workers fully co-operated with the investigation.
13Mr Enright stated that the accident was a terrible personal shock to him and that the untimely death of a worker was an awful tragedy. He said he was acutely aware of the impact on Mr Watson's family and he could not adequately express the remorse he felt and still felt about the accident. He noted that, while his own misfortunes in no way compared with that of Mr Watson's family, he too had suffered a great deal emotionally and financially as a result of the accident. The company was liquidated in January 2008 due to its inability to meet its debts and Mr Enright said at present he was struggling to earn approximately $50,000 per annum. His only asset was the family home which was mortgaged.
14The evidence for Mainbrace was constituted by a lengthy affidavit with numerous exhibits sworn by Mr Gregory Scott, the managing director of Mainbrace. Mr Hymas, a structural engineer, provided two expert reports dealing with a number of aspects raised in the prosecution case, especially in relation to bracing.
15Mr Scott indicated that the main purpose of his affidavit was to set out evidence of the safety management systems directed to ensuring safe work practice and safe work places that were developed and implemented by the company since approximately 1997 to the present time. He exhibited numerous documents in four large folders that represented the company's safety systems. In summary, those documents concerned the occupational health and safety training documents and the defendants' improvement of the risk management procedures documentation from 1997 to the present date; project specific site safety plans, forms and templates; project specific examples of Mainbrace site specific safety plans, forms and templates including the "One Safe System" templates; and site incident summary examples and documentation relating to the development and implementation of the Mainbrace "One Safe System".
16Mr Scott spoke of his training and work history indicating that he held a Bachelor of Building from the University of New South Wales completed in approximately 1981 and the fact that he had worked in the construction industry since 1973 for a variety of construction companies. He had worked in the industry in a number of roles, including as a quality surveyor, a contract administrator, site manager, construction manager and project manager. He commenced his employment with Mainbrace in February 1995 in his first position as senior project manager. He then performed roles of construction manager, operations manager, general manager and managing director. He became a director of Mainbrace in 2001 and was appointed managing director in 2004.
17Mr Scott described Mainbrace as a construction company engaged in the construction of retail, commercial and industrial projects. The company was established in 1989 and since that time had completed more than 500 projects ranging in value from $100,000 to approximately $40 m. The combined value of projects undertaken by Mainbrace since 1989 was in excess of $1 billion. Currently, the gross turnover of Mainbrace was approximately $160m per annum. The projects undertaken by the company included the design and construction, and in other cases construction only, of warehouse facilities, industrial sites, office space, cinemas and shopping centres. Mr Scott gave details of nine recent projects involving a variety of buildings such as towers, auditoriums, clubhouses, hotels, clubs, and shopping centres as well as refurbishment of shopping centres. These projects ranged in value from approximately $16 m to over $37 m.
18Speaking of his involvement with the Mainbrace Occupational Health and Safety Program, Mr Scott said that, in approximately 1997, as part of his construction management role, he became responsible for the development and management of the company's safety system/safe work practice on construction sites controlled by the company. That role had previously been managed by two founding directors of the company. Prior to his appointment as construction manager in March 1996, the company had been involved in an accident at one of its construction sites which became the subject of a WorkCover prosecution. Mr Scott said he had been actively involved in the management of the company's occupational health and safety work practices since 1997 and in various roles with the company. He stated that the company was committed to safe work practices and the operation of a safe workplace in relation to all project sites controlled and/or operated by the company.
19In his role as construction manager, Mr Scott's responsibilities included: ensuring the existence of a safe work system at all company construction sites in accordance with the Occupational Health and Safety Act and Regulation ; the development of the then existing safe work systems and policies of the company; the co-ordination of the training of company employees, including project managers, site supervisors, foremen and other members of the site teams to ensure implementation and proper safety procedures on site; and, providing ongoing revisions, updating and education of staff members regarding existing occupational health and safety practices, procedures and protocols. As at 1997, Mr Scott explained the company's occupational health and safety program included site inspections, safety walks, safety committee meetings and safety plans for site safety. Mr Scott explained these elements and their operation.
20Mr Scott then explained the development of the company's occupational health and safety programme since 1997 to the present time which began in May 1998 with the engagement of an external consultant for a period of 14 months to assist in the development of a safety system and the implementation of structured safety procedures. During this time the consultant developed a series of manuals which formed part of the company's safe management system and they were to be integrated as part of the management system and implemented on every project undertaken by the company. Mr Scott explained the site specific management plan that provided a template to be completed on site before the commencement of work. In 1998 there was a general safety plan that was to be read in conjunction with the site specific safety plan. The plan showed by name and title the personnel who had specific safety responsibilities on a particular construction site. The general safety plan dealt with: safety management system; safety policy; responsibilities; safety planning; safety strategies; site safety committees; and, WorkCover compliance requirements. That plan spoke about the company's commitment to occupational health and safety. There was also a Mainbrace site production sub-process safety management document dated July 1998 dealing with, amongst other things, principles of risk management, work method statements, induction, hazardous materials, emergency responses and site safety layout.
21Following changes to the Construction Safety Amendment (Amenities and Training) Regulations 1998 that commenced in April 1999, Mainbrace ensured that, in 1999, staff had undertaken a one-day industry induction course. Following the induction course, site staff received an occupational health and construction induction certificate. As a consequence of the new Regulations, it was not possible for site staff to work on a construction site without completing induction training and being in possession of the Occupational Health and Safety Industry Certificate. The certificate issued by Mainbrace was a personalised card which each member of the staff and trades had to produce prior to commencing work on any site operated by Mainbrace and that was done as part of the company's site induction requirements that ensured that staff and trades were trained in the State's occupational health and safety requirements .
22In 1999, Mainbrace conducted workshops with its consultant for site supervisors, project managers and site teams. In order to implement a safety management plan developed by the consultant, workshops were conducted on a regular basis. One of the outcomes of protocols introduced by the consultant was the preparation of the general hazard and risk review prepared by the company. This review could be tailored to any particular project after a review of the specific site. The review was to be completed by the site supervisor before work commenced and updated as required before the commencement of each trade. In March 2002, the company developed a general safety plan incorporating the project hazards assessment. An internal training session was undertaken with Mainbrace staff in relation to this revised document.
23The Mainbrace safety plans were constantly revised and Mr Scott set out particulars of the revisions from 2000. From October 2000, the company employed a full-time safety officer. Mr Scott explained the nature of that role which included audits, the provision of safety advice, reports of incidents and participating in training workshops. In 2001, the safety officer commenced safety audit reports and examples were in evidence. The company has since revised and improved those reports. Audits had been conducted on each of the company sites since January 2001.
24In dealing with the company's safety systems, Mr Scott explained the operation of: the safety work scoring systems; the April 2001 safety system review; the formation of the Mainbrace safety steering committee in December 2001; the company's use of safety alerts; operation of the safety steering committee as demonstrated by samples of Minutes that were placed into evidence; the commencement in January 2002 of regular supervisor safety workshops; a substantial safety document review from early 2002; from June 2004 staff performance reviews being altered to include occupational health and safety; the implementation of improved reporting on safety performance on each project site from 2005 implemented by the safety steering committee; the project safety reports with examples; the September 2007 site safety forum with sub-contractors; the data collection review and continuous improvement programmes as well as the development of sub-contractors' performance reviews.
25Between November 2007 and June 2008, senior officers of the company met on a regular basis to upgrade the safety system and to develop what was referred to as the "One Safe System". The purpose of this initiative was to establish a uniform protocol of procedure applying to all sites so that communication and notification of safety issues could be interpreted uniformly and consistently by the company, its operatives and trades. Mr Scott explained the course of consultation and discussion with staff as well as the process of review and assessment. One Safe System templates were developed and also a database was developed for site incident summaries to identify injury types and to establish trends in those injuries being reported. The One Safe System implemented by Mainbrace formed part of steps taken by the company to obtain Best Practice Accreditation through compliance with AS 4801. That certificate was obtained in January 2009 and issued by an accredited auditor. In addition, the company's management systems had been accredited by the New South Wales Department of Commerce. Mr Scott spoke of Mainbrace being committed to the continuing improvement of its safety system to ensure that it had systems in place addressing safety practices at all its sites.
26Mr Scott expressed the company's regret that the incident occurred causing the death of Mr Watson. At the time the company extended and continued to extend its deep sympathy to the family for their loss. In oral evidence, Mr Scott said that Mainbrace made an ex gratia payment to Mr Watson's family through the CFMEU in the sum of $50,000. He spoke of the company's assistance by way of donations to charities, including the Cancer Council, the Sydney Children's Hospital and Care Flight with donations ranging from in excess of $30,000 to $60,000 per year. There had been contributions to the Fire Appeal, the Bushfire Appeal and the Tsunami Appeal. In his oral evidence, Mr Scott also expressed sympathy for Mr Watson's family and said that he and the company were very sorry for that had happened and he had spoken to Mrs Watson about that matter.
27After the incident in 2007, the company issued a safety alert to all projects requiring them to comply with a rigid framework of assessing the risk involved in brick and block work. The company instigated a practice of not stacking material against the walls, of bracing walls where required and went further than the WorkCover guidelines in the type of bracing used. Everybody was on notice that this was something where the company had to continue to be vigilant. The company currently had 112 employees, including approximately 12 apprentices. On an average week there would be not only those employees but also a number of sub-contractors on project sites with a lot of human movement within those sites. Mr Scott was aware of guidelines published by WorkCover in December 2009 regarding bracing for walls and noted that the company had reviewed the Guidelines and reinforced the actions it had taken during the two and a half years following the accident. The company's requirements met and exceeded the Guidelines. In compliance with a Prohibition Notice, an approach had been made to an engineer, Mr Tropiano, in relation to a report on the cause of the accident involving Mr Watson and the company had complied with all the recommendations of Mr Tropiano and with the requests made by WorkCover during its investigation of the incident. During the investigation the company tried its very best to supply WorkCover with everything they required and the managing director and representatives of the company underwent two records of interview. The company tried its best to continue to maintain a safe worksite despite this tragic event.
28Mainbrace tendered two reports it had commissioned from Mr Ian Hymas an engineer who had been involved in the building and construction building since 1964. He held a Masters Degree in Engineering Science with subjects in the field of structural engineering. He had prepared reports in August and December 2009 with the second report being prepared on the basis of the proposed Agreed Statement of Facts to be tendered in these proceedings. The first report dated August 2009 noted that Mr Hymas attended the site on 30 March 2007 at the request of Mainbrace and he had observed the location of the accident. Mr Hymas was instructed as to the method of construction in two lifts of brickwork and had been shown a similar standing wall at the site. He was told there was a minimal breeze on the day of the collapse and that allegedly some scaffold planks had been placed against the wall and this had caused the collapse.
29The mixture of the mortar was considered by Mr Hymas and found to be adequate for the task. It was concluded that the inclusion of flashing on the wall was standard practice and necessary. Consideration was given to the term "free standing" and the term "untied" in relation to various standards as there were confusing aspects identified in their application. Mr Hymas initially concluded that the collapsed wall at the time was free standing in terms of cl 7.3.4.3 of AS 3700, Masonry Structures. In considering potential loads on the wall, it was concluded that wind loads were clearly not the cause of the collapse and unexpected or accidental loads such as impact loads could not be predicted or quantified and therefore could not be identified. Mr Hymas said that the best defence against impact and accidental loads was to reduce the chance of their occurrence and that could be achieved by minimising trades working simultaneously in the same space and restricting plant movements in the area. These were matters for site management rather than engineering expertise. The opinion was proffered that the wall collapsed at the flashing/damp proof course and the bond at that point in the wall would be negligible. Mr Hymas then looked at the effect of leaning planks against the wall. From observations and measurements of one plank at the site he assumed a density resulting in a weight per plank of 21 kgs. He counted 16 planks in the area. He found that 16 planks leant against the wall could easily cause the wall to topple. He also found it was difficult to see how this cause could have been foreseen. Following the accident, structural engineers were asked to design temporary bracing for the brickwork and Mainbrace installed that bracing as designed.
30In relation to prevention of the accident, Mr Hymas again stated that it was difficult to see how the cause of the failure could have been foreseen. He stated that recognising a practice to be dangerous was the first step in prevention and hazardous identification was either learned from a bad experience or the bad experience of others. If the Mainbrace supervisors, from their experience or the experience of others passed on to them, were not aware of the dangers of leaning equipment against walls, it was difficult to see how they would identity this hazard. He accepted that logic would indicate a danger in the practice but that was a matter of degree. A shovel leant against a wall would clearly be trivial but where to draw the line between trivial and dangerous was not apparent merely from observation. The summary of his conclusions was that the wall that had collapsed was free standing at the time although it may not have been considered to be free standing in terms of the safety management document prepared by Gallim. The wall was not braced. Leaning 16 planks against the wall produced sufficient lateral force to cause it to collapse and the wall could not have withstood the design wind loads as defined in AS1170 Pts O and 2.
31As earlier indicated, Mr Hymas' view was sought in a second report which dealt with issues raised by instructing solicitors. Mr Hymas firstly commented upon a WorkCover guidelines publication issued in 2009 entitled "Masonry wall safety during construction work". That document identified the practice of leaning equipment and materials against masonry walls as a risk. Prior to the accident he had seen little or no literature warning against the practice. In his view, the absence of such warnings from technical and educational literature limited the possibility of operatives and supervisors being alerted to the danger to personal bad experience or the bad experience of others passed on by word of mouth. It was noted that the publication did not completely ban the practice but warned of its danger and that was appropriate because there were safe ways of leaning equipment against walls. In relation to bracing walls, Mr Hymas stated that with walls up to three metres high there was little or no culture within the industry for bracing walls and its acceptance would have to be driven by documents such as the WorkCover guide as there would be considerable extra cost involved. Where bracing was currently used, it was usually site designed and more for the purpose of holding the wall plumb whilst the mortar "goes off" but is his view it would be of little value when resisting wind loads or impacts.
32In cross-examination, Mr Hymas agreed that, if he had seen this wall in the state it was in and had calculated the wind, he would have arrived at the conclusion that it needed bracing. It was a free standing wall but was not supported by other walls. He would not simply look at the wall but would undertaken calculations and having done so, he would have reached the conclusion that there was a risk of the wall falling. Potentially, the wind, lateral load or some other impact damaging the wall could lead to it falling and all three could have occurred. Because of this risk a wall, such as the one that fell being unsupported by another wall or additional means of support, was more likely to fall than a wall that was supported in some way. Of all the walls on a building site, free standing walls were the most likely to collapse. He agreed, in general terms, that was a correct statement. Mr Hymas agreed that the hazard that had to be recognised was the hazard and risk of the wall falling over at all times. It was foreseeable that any one of the identified circumstances might give rise to the real possibility that a free standing wall would collapse. It was clear that, if a huge number of planks had been placed against the wall, it would be a foreseeable risk but there was a grey area where the number and nature of the planks would need to be calculated to see if there was a risk that the wall would collapse and not everyone on a building site had an engineer's capacity to make those calculations and hence he had proffered the view that, in the circumstance, this particular accident was not foreseeable to building employees working on the site. As a general proposition Mr Hymas did accept that, from the masonry standard, free standing wall were at risk of falling over. The level of risk depended on the dimensions and what was being used on a particular wall or the particular circumstances. Mr Hymas accepted that this wall could have been braced in a way that would have prevented it from collapsing from a lateral load of 16 planks being laid against it. In re-examination, Mr Hymas said that even if the walls were braced there was a going to be a load which would cause a braced wall to fall or part of it to fall.
33Pursuant to a Prohibition Notice issued by WorkCover, Mainbrace engaged a firm of engineers to assess the site. On 30 March 2007, an engineer, Mr Tropiano, following inspection of the walls at the site, wrote to Mainbrace and provided on-site advice on the rectification required. Attached to correspondence was a plan indicating that the walls should be braced in identified locations to provide lateral stability against wind and/or accidental loading. Suggested bracing details were also provided. The following additional recommendations were made:
(i)all materials, such as planks, scaffold frames, palettes etc leaning against walls are to be removed so there is no superimposed lateral load on the walls;
(ii)from now on, intersecting walls to be built concurrently with main walls to a minimum height equal to half the height of the main wall, raked back. This applies particularly to blade walls.
34An engineering report concerning the collapsed brick wall prepared by Mr Chris Turner, an engineer with WorkCover. He had attended the site on 30 March 2007 and obtained a report from the Bureau of Meteorology regarding the wind recordings at the nearest weather station. Dealing with possible causes of the collapse, Mr Turner said they fell into two categories. The first category was that the wall was in a temporary weaker state compared to how it would have been after completion when it would have been incorporated in the finished structure. The contributing factors included: there was no lateral support to the top or sides of the wall; an internal cross wall that would provide some lateral support had yet to be construction; there was no temporary support provided ; and, the damp course at the base of the wall provided a line of weakness as there was no tension bond across that mortar course. The second category dealt with what triggered the collapse at the time. In relation to wind, the recorded speed on the day showed that the wind remained light throughout the day with recorded maximum gales ranging from nine to twenty-six kilometres per hour but well below the wind velocity that should be used in design. Secondly, the lateral loading of 16 scaffold planks leaning against the wall was the most likely cause of the collapse, possibly including the impact as the last planks were added. There was no indication that the wall was subjected to any other direct loads such as impacts with loads suspended from cranes, loaded pallets being moved on palette trolleys, loaded wheelbarrow loads or other site activities. Whilst out of vertical construction was a theoretical trigger, a wall of this limited height would have to be very obviously out of vertical and there was no indication that the wall was other than vertical.
35In relation to preventative measures that could have been implemented to prevent the wall from collapsing during construction, Mr Turner identified the following measures:
evaluate the design to identify walls that are free standing or have excessive distances between supports and are therefore in need of temporary support and to incorporate it into the complete structure;
provide temporary support to the wall until there it is sufficiently incorporated into the finished structure;
build the cross walls at the same time as the support they provide will reduce or eliminate the temporary support needs. In this case the internal wall and the balcony dividing wall would have provided significant support;
prevent lateral loads from the construction activities being applied to unsupported walls. Avoid leaning material against unsupported walls, avoid positioning crane loads near walls as the load may know the wall while being lifted in or out, keep material movement paths away from supported walls.
36Mainbrace also tendered a number of references going to its reputation in industry and its standing in the community. These references were provided by individuals and companies in a commercial relationship with Mainbrace and were in similar terms. Nevertheless, they reflected a considerable period of experiencing, at first hand, Mainbrace's safety culture in operation on building and construction work. They spoke of Mainbrace's excellent reputation in that industry, its commitment to safety and the respect and responsibility generally instilled within Mainbrace project managers and foremen in respect of the audit process.
37As already indicated, Mainbrace had a previous conviction arising from a penalty imposed in March 2000 by Kavanagh J in relation to a breach of s 16 of the 1983 Act. Those were contested proceedings bought in relation to an incident that occurred on 5 March 1996 when three electrical workers standing on a trafficable suspended ceiling of an area known as the "Hanging Area" suffered injury when part of that ceiling collapsed. A number of the particulars alleged against Mainbrace were found to be established and in separate proceedings, her Honour imposed a penalty of $100,000 in relation to a maximum penalty of $500,000. It was found that the offence was "serious" in its nature although Mainbrace had imposed a system of work to address site safety but that system was not adhered to. It was noted that the company, although there were defects in relation to this type of work in its safety system, had been operating in the high-risk building industry with a significant number of workers on its sites without prior conviction. That first offender status and good safety record was taken into account in mitigation of the ultimate penalty, together with the fact that Mainbrace had acknowledged the risk exposed by the accident by making significant endeavours at considerable expense to the company to re-evaluate safety procedures. Those endeavours assured the Court of " a commitment of safe working".
[4]
DELIBERATION
38The first and primary consideration in the sentencing exercise is to consider the objective seriousness of the offence. Counsel for Mr Enright openly accepted that this was a serious offence but sought to place the offence in the context of the good industrial record of Mr Enright and Gallim as well as their systems of safety that otherwise paid close attention to safety and the avoidance of risk in the workplace. Counsel for Mainbrace, in terms, did not address the level of seriousness of the breach but went to some lengths to portray the relative culpability of Mainbrace as being significantly lower than Gallim. Gallim had the responsibility for the erection of the walls and the supervision of employees performing that work and it was Gallim employees who placed 16 or so heavy planks against the wall thus causing it to collapse. It was put that Mr Enright and his company, bore "the lion's share of culpability for the accident". On the other hand, Mainbrace's conduct was described as "inadvertence" having regard to it supervisory role against the hands-on role played by Mr Enright and his company, Gallim.
39Counsel for the prosecutor submitted that this offence in each case fell within the higher range of serious offences that come before this Court. It was described as "a very serious offence". The particulars firstly focused upon the system of brick and block laying and the need for adequate bracing or other support and the need to ensure that lateral loads were not placed against brick or block walls, while the second aspect of the particulars dealt with ensuring adequate risk assessment of brick and block laying and providing adequate information, instruction and training in relation to brick and block laying as well as adequate supervision in relation to this task. There were a number of people on site from Mainbrace as well as those engaged by Gallim. Although the planks were laid against the wall for a relatively short time, no one identified the risk of doing so against an unsupported wall.
40The engineer engaged by Mainbrace, Mr Tropiano, had identified the fact that a number of brick walls at the site required bracing and recommended that all building materials against brick walls be removed. Mr Turner from WorkCover concluded that the partition wall that fell was in a state of substantial weakness at the time of the collapse. The prosecution case was that there were glaring omissions in respect of safety and in respect of the support of walls or masonry brickwork during the course of construction, a known and identified risk in the construction industry. It was also pointed out that safety audits performed by Mainbrace did not adequately identify the risk arising from brick and block laying, including: constructing inadequately braced or unsupported brick or block walls at the site and in particular partition walls; the placement of scaffolding planks against inadequately braced or unsupported walls and in particular partition walls; and working in the vicinity of inadequately braced or unsupported walls and in particular, partition walls.
41Gallim had a hazard identification risk assessment dated January 2007 in relation to brick and block laying works at the site. That identified the risk of walls blowing over but there was no reference to lateral loads. The method of minimising risks were to be identified by a site specific safe work method statement and the relevant statement for this site dealing with the bracing of brick and block walls was that free standing walls that were not tied were to be braced at an angle of 45 degrees creating a right-angle support for the wall to prevent it from collapsing. The site manager and employees were identified to ensure that this occurred. However, it was not common practice for people at the site to brace walls while being constructed. Importantly, after the accident, expert advice identified 21 of 56 walls as requiring bracing. Mr Turner's report referred to the occupational health and safety regulation and further spoke of the usual temporary masonry wall weakness during construction not being a new issue but had been known and dealt with for many years. Mr Turner had identified preventive measures that were simple, straightforward and easily able to be implemented. In fact, the bracing of the walls occurred after the event on the advice of expert engineers engaged by Mainbrace. For these reasons, counsel for the prosecutor submitted that, not only was the breach serious, but the risk of collapse of a unbraced and unsupported wall was well known in the industry over a long period of time and therefore the risk was foreseeable.
42The Court accepts the thrust of these submissions made on behalf of the prosecutor. The injuries sustained by Mr Watson is evidence of the consequences that may follow should an unsupported wall of this nature collapse. Although it can be accepted that the placing of 16 heavy planks against this unsupported wall occurred in a relatively short time span before the wall collapsed (and the Court is inclined to accept the defendant's evidence that this occurred approximately 15 minutes beforehand), it is significant that not only were these planks placed there contrary to Mr Enright's instructions but unknown persons also removed the timber Gallim traditionally used to support and brace the wall. That is not to suggest that there was little or no attention paid to safety by the defendants and each appears to have been well experienced in this industry with commendable records having regard their size and longevity. Indeed, the prosecutor accepts that consideration had been given to the stability of unsupported walls but the provisions made fell short of adequately providing against the identified risk. In relation to Mr Enright, it is of some significance that he was the hands-on site supervisor yet he was unaware that Mr Watson was working close to the unsupported wall when he was supposed to have been working elsewhere - that situation goes directly to the lack of proper supervision. Mainbrace was a large corporation and had the authority to direct its sub-contractors as to the work they were performing and the manner in which that work would be performed.
43In relation to supervision, the larger than usual number of sub-contractors engaged by Gallim should have alerted Mr Enright to the need for constant supervisory vigilance. The submission cannot be accepted that this larger number somehow relieved Mr Enright of his wider supervisory role or operated as some mitigating factor. As earlier noted not only was Mr Enright not aware that Mr Watson was performing work that had not been authorised and was not performing the work he had been directed to perform, but Mr Enright was also unaware that the support timbers for the wall had been removed, nor did he know when that occurred and by whom. Contrary to submissions by his counsel, these failures and omissions cannot be diminished by regarding the accidents as occurring because of the "convergence" of circumstances that should not have occurred but occurred without Mr Enright's knowledge. In relation to Mainbrace, although it can be acknowledged that it appears to have been implementing the content of the recently issued WorkCover guideline some three years before that guideline was published, it cannot be accepted that Mainbrace's actions were the result of mere "inadvertence".
44The Court is unable to accept the view expressed by Mr Hymas that this risk was not foreseeable absent previous experience with a similar problem. Mr Enright was aware of the risk of placing objects against unsupported walls and the need to brace such walls. He had orally warned his workforce against leaving objects against such walls and his SWMS referred to the necessity of bracing free standing walls. Unfortunately, these directions were not followed by the workforce and were not, or not adequately, enforced by Mr Enright or Gallim. Further, Mr Hymas' opinion on this matter seems to be based on the necessity to make load calculations in order to form the view that a wall was at risk of falling because of the load placed against it. It is to be remembered, however, that the Act is concerned with "risk" not mathematical certainties that may only be calculated by experts such as structural engineers. In cross-examination Mr Hymas accepted that, had he seen this wall before it collapsed, he would have assessed it as requiring bracing for support. For all the reasons referred to, while the Court is satisfied that this was a serious breach, it cannot accept the prosecutor's submission that it is to be properly regarded as at the higher end of the scale of seriousness and gravity or as demonstrating gross negligence or recklessness.
45As to the relative culpability of each defendant, the Court is unable to accept the proposition that because Gallim was present on site with a hands-on supervisor, Mr Enright, that it must follow it is more directly culpable for the risk to safety particularised in each case, nor does that result flow from the fact that the planks were owned by Gallim and placed against the wall by Gallim engaged or employed workers. As earlier mentioned, Mainbrace had the contract for the development works and sub-contracted certain aspects of that work to Gallim. More importantly, Mainbrace had a full-time site manager present at the site as well as a full-time project manager at the site. Mainbrace had the authority to direct Gallim's work. Although the two companies came to be involved in this accident as a result of these contractual arrangements, in this case that factor would not operate so as to cast a higher level of culpability on either of them. Broadly speaking, both companies and hence Mr Enright appear to the Court to be equally culpable. It does not follow from that finding that the penalty to be imposed on each of the defendants will bear the same relationship to the maximum penalty available, firstly, because the sentencing exercise is not a mathematical process and secondly, because Mainbrace, being a prior offender, is subject to a higher penalty regime than Mr Enright who is a first offender.
46In relation to each defendant, both general and specific deterrence will operate to form a significant part of the penalty to be imposed. In relation to specific deterrence, both defendants continue to operate in this relatively high-risk industry although Mr Enright's company has been wound up. Both defendants continue to be in a position, having regard to their individual circumstances, to influence safety on the sites on which they operate.
47For each defendant there are considerable subjective factors to be considered. In the case of Mainbrace, there is no doubt that the company is a significant player in the industry and is involved in the construction of many large projects. Having regard to the size of the projects, the number of staff and sub-contractors it engaged and the time the company has been involved in this high risk industry, its safety record could properly be described as a good record notwithstanding it has a prior conviction. That conviction relates to an incident that occurred nearly 13 or 14 years ago and the circumstances of that accident are so significantly different from the present matter as to not constitute evidence of a repeated failure in relation to the same issue of safety nor does it constitute evidence of a propensity to continually re-offend. As found by Kavanagh J in relation to its first offence, Mainbrace continues to promote safety amongst its employees and sub-contractors and has paid considerable attention to the promulgation of a variety of safety systems and measures at its workplaces. Shortly after the accident, the company sought and acted upon expert engineering advice and issued alerts regarding the risk exposed by this accident. It took prompt steps to rectify the deficiencies in its safety system and 21 walls were braced in accordance with expert engineering advice provide to the company. In addition, a full management review was initiated. Its good reputation in the industry is supported by a number of references provided to the Court. Mainbrace's good corporate citizenship is demonstrated by its financial support of numerous charities. The evidence of Mr Scott referred to earlier also demonstrates that the company has taken responsibility for this accident, has participated in providing compensation to Mr Watson's family and has recognised the harm it has caused. Having regard to those matters, the requirements of the Sentencing Procedure Act 1999 have been met and contrition will be taken into account as a mitigating factor. It is also of some importance that Mainbrace co-operated with the WorkCover investigation. Lastly but of some real significance, is the fact that Mainbrace, after discussions with the prosecutor, entered an early plea and the Court accepts the submission of its counsel that there is considerable utilitarian value in the plea having regard to the detail of the issues that the Court may otherwise have had to consider if the charge was contested. It is appropriate that, having regard to the early plea, the fine be reduced by 25 per cent.
48In relation to Mr Enright, he is a first offender and is entitled to the leniency usually accorded to a person in that position. Although involved in a smaller operation than that of Mainbrace, Mr Enright participated in this industry through his own company as a hands-on director working on site and employed a number of people in conducting its undertaking. It speaks well of his attention to matters of safety that, in this high-risk industry, he has operated for a number of years without being brought to adverse attention for a breach of the safety laws. His company had a well-developed safety system that had turned its mind to the risk of unstable walls although the systems adopted were not adequate in all the circumstances. The Court accepts the submission of counsel for Mr Enright that he fully co-operated with the WorkCover investigation, provided everything that was required of him and engaged in a record of interview with the Inspectors giving full and frank answers to their questions. He has also demonstrated genuine remorse and there was evidence that, as submitted, Mr Enright still carries with him regret at the occurrence and remorse that it had occurred. On the evidence, it is established to the Court's satisfaction that Mr Enright has accepted responsibility for this action, including the harm caused by it involving not only the death of Mr Watson but the effect on his family and has participated in making payments to the family to assist the inevitable re-adjustment they had to make to their lives after the death of Mr Watson. The provisions of the Sentencing Procedure Act in relation to contrition and remorse are satisfied and that aspect will be taken into account in mitigating the penalty to be imposed. Mr Enright also entered a plea of guilty at the first listing of the matter and that early plea warrants a discount of 25 per cent on the total penalty in recognition of its utilitarian value.
49One further matter needs to be dealt with: on 8 February 2010 the parties were notified that the Court would soon be in a position to deliver judgment on the issues raised and announce the penalty to be imposed. Having regard to the judgment of the High Court in Kirk & anor v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531, (" Kirk") a decision delivered after this matter was reserved, the parties were invited to inform the Court whether they wished to raise any further matter in relation to the pleas entered or the nature of the proceedings commenced by the Inspector. Both defendants requested a period of two weeks to consider their position, a request acceded to by the Court.
50Unfortunately, the defendant was not able to adhere to that timetable and considered the issues to be very complex. Finalisation of the matter was further delayed when this Court convened two Full Benches to consider references in the matters of Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72 and Morrison v Chevally [2010] NSWIRComm 116. The John Holland matter was then considered by the Court of Appeal ( John Holland Pty Ltd v Industrial Court of New South Wales and ors (2010) NSWCA 338 and judgment was delivered on 9 December 2010. In mid-October 2010 the parties agreed that a motion filed by Mainbrace in mid-March 2010 should be listed for hearing early in the 2011 law term. The Notice of Motion by Mainbrace, in substance, sought an order that the Application for Order filed on 20 March 2009 by the WorkCover Authority be dismissed. On the hearing of that motion, counsel for the prosecutor informed the Court that financial difficulties prevented Mr Enright being represented in those proceedings: he had been asked to inform the Court that Mr Enright was content to abide by the outcome in the Mainbrace Notice of Motion but did not adopt either the submissions of the prosector or Mainbrace on the Mainbrace motion.
51Counsel for Mainbrace emphasised that his instructions were not to withdraw the guilty plea in view of the detriments that might flow from such a course but to focus on the issues raised in Kirk by the High Court, being matters that were not understood to be available when the plea was entered and later heard in December 2009. It was submitted that Mainbrace could not enter a plea and particularly a plea of guilty to a charge that was not known to the law and was invalid. Not surprisingly, counsel for the prosecutor pointed out that a guilty plea, unless special circumstances were shown to exist, would constitute an admission of all the essential elements of the offence ( Maxwell v The Queen (1995-1996) 184 CLR 501 at 510 per Dawson and McHugh JJ) and that the plea of guilty was "attributable to a genuine consciousness of guilt" (re Boag (1994) 73 ACrim R 35 at 36 per Hunt CJ at CL citing with approval Badgery-Parker J in Davies (unreported Court of Criminal Appeal, NSW, 16 December 1993).
52The argument raised by Mainbrace was that the charge was incurably defective in its initiating process because, as required by Kirk, it did not particularise the identifiable risks and it failed to state with precision the measures that Mainbrace should have taken or failed to take.
53The particulars of the charge are set out in para [2] of this judgment. For present purposes they may be summarised as follows:
a failure to ensure a safe system of work for brick and block laying by failing to ensure that brick or block walls at the site, and in particular partition walls, were adequately braced or otherwise supported;
failure to ensure that there was a safe system of work for brick and block laying in that the defendant failed to ensure that lateral loads were not placed against brick or block walls, and in particular partition walls that were not adequately braced or otherwise supported;
the failure to ensure that persons other than its employees did not undertake work in the vicinity of brick or block walls at the site and in particular partition walls that were not adequately braced or otherwise supported;
a failure to ensure that an adequate risk assessment of brick and block laying was undertaken so as to identify and guard against the risk of the collapse of brick or block walls in relation to persons other than its employees;
failure to provide adequate information, instruction and training to persons other than its employees in relation to brick and block laying at the site;
failure to provide adequate supervision to persons other than its employees in relation to brick and block laying at the site.
54In full written submissions filed by Mainbrace it was argued that, arising from Kirk, the prosecutor was "to particularise its case from the outset in its pleadings" as a matter of prosecutorial duty in relation to a criminal prosecution. The statement of offence must identify the act or omission said to constitute the contravention of the employer's duties, especially having regard to the availability of the defences under s 28 of the Act. The defendant could only invoke the defence provisions by addressing particular measures identified as necessary to have been taken as particularised in the statement of offence. Mainbrace had to "know precisely the allegations made against them at the commencement of proceedings." The defendant, in the absence of a particularised identifiable risk or risks, was not to be required to negative the general provisions of s 8 of the Act and to establish that every possible risk was obviated. The onus was on the prosecutor to carefully set out the relevant facts, to establish all the elements of the offence and to prove those elements beyond reasonable doubt before the defendant was required to defend the proceedings, including under the special statutory defence. Absent adherence to this process, the defendant would be at a distinct forensic disadvantage in relation to its defence of the prosecution case or to call evidence establishing the special statutory defence in order to defeat the prosecution. This was part of the proper due process of which a fair trial was the cornerstone of the law. There was only a contravention of s 8 where there had been a failure of an employer to take a particular measure and to take that particular measure to prevent an identifiable risk. Thus, there was a necessity for the statement of offence to identify with precision the act or omission of the employer said to constitute the contravention of the section.
55Applying these requirements from Kirk to the particulars supplied to Mainbrace, it was firstly submitted that the second and third particulars simply used the words of s 8(1)(c) with a reference to "brick or brick walls" being "adequately braced or otherwise supported." It was submitted that there was no identification of the deficiency in the system of work or the measures which Mainbrace should have taken to address it and the particulars did not take into account the contractual relationship between Mainbrace and Gallim or Gallim and the deceased. There was no acknowledgement in the particulars that there was no contractual relationship between Mainbrace and the deceased and the particulars did not specify "precisely" how Mainbrace should have ensured that there was a safe system of work in place at the site for brick and block laying in light of the contractual relationship which in fact existed. So stated, the particulars did not disclose the acts or omissions of Mainbrace in circumstances where Mainbrace had contracted with Gallim in respect of the provision of supervision, labour, materials, testing, transport, plant and equipment to complete the supply and laying of bricks and blocks at the site. The particulars were general and as such served little or any utility. Similar complaints were made in relation to the remaining particulars with the added submission that the failure to ensure an adequate risk assessment did not identify what risk assessment Mainbrace should have undertaken but failed to: the same submission was made in relation to the failure to provide adequate information, instruction, training and supervision. Again, there was a failure to identify precisely what Mainbrace should have done. These submissions were repeated in the context of insufficient attention being paid by the prosecutor to the contractual relationships in force at the site.
56A number of authorities cited during the course of argument or referred to by the Court bear upon the contentions of the parties. The principle matters dealt with are:
(a) in Kirk, the High Court referred to the longstanding and well known cases of Johnson v Miller (1937) 59 CLR 467 and John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 dealing with the particulars necessary to support a valid charge. In John L Pty Ltd , Mason CJ, Deane and Dawson JJ spoke of the old authorities establishing that an information should be quashed as insufficient in law and invalid if it failed to inform the Justices before whom it was laid "of the nature of the offence and the manner in which it had been committed." The rationale of that requirement was said to be, firstly, the necessity of informing the court of the identity of the offence and also in providing the accused with the "substance of the charge" he was required to meet. The common law requirement was that an information or application containing a statement of offences must at least condescend to identifying the essential factual ingredients of the actual offence. In Kirk it was noted that those facts "need not be as extensive as those which a defendant might obtain on an application for particulars" ( De Romanis v Sibrra [1977] 2 NSWLR 264 at 291-292 also referred to in John L Pty Ltd at 520);
(b) Kirk dealt with the provisions of s 11 of the Criminal Procedure Act 1986 providing that the description of any offence in the words of the Act creating the offence were sufficient in law. It was pointed out that there were judgments that held that such a provision did not dispense with the common law rule and that in Johnson v Miller , Dixon J appeared to have applied the common law rule and to have held that a statutory provision like s 11 related only to the nature of the offence and did not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions. In making that statement the High Court referred to the judgment of Dixon J at 486 in Johnson v Miller. In that case the complaint did in fact state the day, place and circumstances of the offence but it was not until the charge was subjected to closer scrutiny that it became clear that there was a latent ambiguity in the complaint. Dixon J then stated:
The latent ambiguity might have been removed by making an amendment or by giving particulars selecting one instance or person to the exclusion of the others. ... The respondent, however, took the ground that on its face the complaint gave sufficient particulars and that he was entitled to support the charge by any instance he was able to prove falling within the times specified. ... If the respondent had been content to confine his evidence in support of his complaint to one person who was seen coming out of the licensed premises between the times stated, the complaint might be regarded as having given the appellant sufficient information to meet the case made. ...
(c) no application was made to the Court of Appeal or the High Court to quash the Order made by the Industrial Court in Kirk and therefore, while it was not appropriate to examine whether the Industrial Court's Order were made upon an application, made "in accordance with the Rules" or to consider whether the Order could have been saved by provisions such as s 6 of the Summary Jurisdiction Act 1967 preventing objection to be taken or allowed to an Order made because of any alleged defect in substance or in form, nevertheless, the court stated that "... it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges.";
(d) in Inspector Hamilton v John Holland Pty Ltd, a Full Bench of the Industrial Court, after analysing the judgment in Kirk, dealt with circumstances whereby inadequacies of particulars might be remedied if there was a defect in form by operation of s 16(2) of the Criminal Procedure Act or might be remedied where the defect might be regarded as an irregularity, in accordance with s 170 of the Industrial Relations Act 1996;
(e) the Full Bench in Inspector Hamilton v John Holland Pty Ltd followed the majority in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 in accepting that, for the purposes of s 16(1)(b) of the Criminal Procedure Act , it has long been sufficient to describe the nature of an offence by use of the statutory language but it did not follow that all the words of the statute must be used nor that where the specific provision is adequately identified, all the legal elements must be expressly identified and some may be necessarily implied from what is otherwise described;
(f) in Inspector Hamilton , the Full Bench cited a number of passages from the judgment of Baston JA in Rockdale Beef regarding the validity of alleged offences. At [122], Baston JA noted that, in Ex part e Thomas ; re Otzen (1947) 47 SR (NSW) 261, Jordan CJ stated it had been decided over and over again that a person could not be convicted of an information that does not charge an offence and that s 65 of the Justices Act 1902, dealing with variance, did not meet such a case. Jordan CJ did state, however, that the proper course, when such occurrence was faced, was to amend the information so as to make it allege an offence known to the law and triable before the Magistrate and for the Magistrate then to allow an adjournment reasonably necessary to give the defence an opportunity of meeting the charge. At [123], Baston JA noted that those remarks were inconsistent with the proposition that a failure to properly plead the elements of an offence necessarily rendered the information invalid. It was further noted that the power of amendment itself may be inconsistent with such a conclusion. Further, in [126], his Honour stated that if it was thought necessary in the interests of procedural fairness for there to be express reference, in the case then before the court, to the relevant business in the charge, the prosecution was entitled to rely upon the material set out in the affidavit of the Inspector in support of the application. That approach was adopted and followed by the Full Bench in Inspector Holland.
(g) the recent decision of Downey v Acting District Court Judge Boulton [2010] NSWCA 240 considered the affect of Kirk in relation to deficient criminal pleadings. In that case the Court of Appeal did not require the pleadings to expressly set out the measures in the charge as they could be implied from the statement of offence;
(h) in John Holland Pty Ltd v The Industrial Court and ors , the Chief Justice noted that, in the pleadings, words of general application were used such as "adequate system of ground support" or "adequate system of communication" and may give rise to an application for further and better particulars. Further, where the charge referred to "adequate" thus giving rise to a request for further particulars, the possibility of further particularisation did not detract from the validity of the charge;
(i) Further, in Downey Baston JA stated that the challenge thereunder consideration bore only superficial analogy with Kirk . His Honour stated that care had to be taken in seeking to rely upon supposedly analogous factual situations in a higher court as giving rise to a precedent rather than the precedent being found in the legal principle to be applied in assessing such facts;
(j) in Morrison v Chevally , the Full Bench at [135] dealt with a submission that, in applying the requirements of Kirk, directors were also to be informed of what means they should have adopted to address the measures that were not taken by the corporation. It was pointed out by the Full Bench that approach would require a prosecutor to instruct the director as to which safety body he may have directed instructions to or to specify what provider of services he may engage to ensure that there was an adequate berm or road design that prevented coal trucks from running off the steep mine road. This approach misunderstood the structure and proper construction of s 26. Just as the prosecutor was not obliged to instruct the corporation of the method or entity by which such a berm might or should have been constructed, neither was the prosecutor obliged to inform the directors of such methods or entities.
57While it cannot be doubted that there is a requirement for some precision in criminal proceedings, (per Kirby J in Walsh v Tattersall (1996) 188 CLR at 110 et seq) Kirk does not stand for the proposition that all proper and reasonable particulars must appear in the initiating process otherwise it will be invalid. The authorities referred to in Kirk and analysed with other authorities in Inspector Hamilton and John Holland Pty Ltd and in Morrison v Chevally stand as authority for these propositions:
[5]
ORDERS
66Having regard to all these matters, the Court makes the following orders:
(a) in relation to Oliver Joseph Enright :
(i) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by virtue of the operation of s 26(1) of that Act as particularised in Matter No IRC 376 of 2009, to which the defendant entered a plea of guilty;
(ii) the defendant is fined the sum of $9,000 with half that sum to be paid to the prosecutor by way of moiety;
(iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court.
(b) in relation to Mainbrace Constructions (NSW) Pty Ltd:
(i) the defendant's Notice of Motion is dismissed;
(ii) the defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 378 of 2009, to which the defendant entered a plea of guilty;
(iii) the defendant is fined the sum of $165,000 with half that sum to be paid to the prosecutor by way of moiety;
(iv) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court.
ANNEXURE
AGREED STATEMENT OF FACTS
OLIVER JOSEPH ENRIGHT ENRIGHT (IRC 376 of 2009)
At all material times the prosecutor, Inspector Michael Duncan, was duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter .
The Parties
Mainbrace Constructions (NSW) Pty Ltd (Mainbrace) was a corporation. Mainbrace was an employer. Its undertaking was the provision of commercial construction services.
Gallim Constructions Pty Ltd (Gallim) was a corporation. Gallim was an employer. Gallim's undertaking included the provision of brick and block laying services.
Gallim entered into voluntary liquidation on 28 February 2008.
On about 4 December 2001 Lakeside Resort Developments Pty Limited (Lakeside), the owner of premises at 131 - 151 Pollock Avenue, Wyong, in the State of New South Wales (site), entered into a joint venture with Clarendon Resort Housing Pty Ltd (Clarendon) to undertake the construction of a development known as the 'Kooindah Waters Project'. The project involved the integration of a residential/golf resort complex into the existing surrounds of the Kooindah Waters Golf Course. In accordance with the joint venture, Lakeside provided the land and Clarendon arranged the funding and the construction contractors for the project.
The development works at the site were divided into three precincts. Precinct 1 included the design and construction of a Health Facility Building, a Golf Clubhouse, an Apartment Building and a car park. Precinct 2 included the design and construction of residential facilities. Precinct 3 was set aside for future works.
On about 6 February 2006 Clarendon entered into a contract with Mainbrace Constructions (NSW) Pty Limited (ACN 055 876 652) (Mainbrace) for the development works within Precinct 1. Under that contract, Clarendon subcontracted all of the development works for Precinct 1 to Mainbrace. The development works contracted to Mainbrace included the design and construction of a health facility building, a golf clubhouse, a car park and an apartment building. Clarendon was responsible for all development works in Precinct 2 including the design and construction of residential facilities.
On 31 January 2007 Mainbrace and Gallim entered into a contract. Under the contract Gallim was to provide supervision, labour, materials, testing, transport, plant and equipment for the purpose of the supply and laying of bricks and blocks at the site and in particular in Precinct 1.
At all material times Mainbrace employees who worked at the site included Matthew Hayes, Richard Hardy, Kenneth James, Chris Lazeronie, Rhys Douglass, Collin Vickory, Michael Doust, Michael Fague and Gregory Scott.
Gregory Allen Scott (Scott) was employed as the construction manager at the site. Scott was also the managing director of Mainbrace. Other directors being Robert Doust and Michael Witts sometimes visited the site but did not have regular involvement with it. Two other directors Gregor Maxwell Millson and Peter Rodney McKinnon did not have direct involvement with the site.
At all material times Oliver Joseph Enright [DOB:15.10.1964] (Enright) was the sole director of Gallim. Enright was also the site supervisor for Gallim at the site. He was on site on a day to day basis.
At all material times Gallim contracted with other people to assist it in performing the subcontract works. These included Kenneth Lewis, Mark Dowd, Rod Bowden, Paul O'Reilly, Reece Brewer, Thomas Rhyan, Scott Gallway, Keith Foster, Peter Cousins, Ian Mason, Robert Peak, Shannon Mahon, Arthur Tucks, Jim McGrath, Ross Zikan, Oliver Enright, and in particular, Robert George Watson. By reason of its contractual relationship with Mainbrace and its sub contractors Gallim had the capacity to ensure or demand that the site was safe and without risks to health and that the systems and procedures used in relation to the masonry works did not pose a risk to health and safety.
Robert Watson was a 53-year-old trade-qualified bricklayer. He was one of the people engaged by Gallim to assist with the subcontract works at the site. His main role was to lay bricks.
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The Incident
14. Two days before the incident the bricklayers engaged by Gallim, including Robert Watson, constructed a double skinned partition wall of approximately 2.7 metres in height and 1.46 metres in width (partition wall). This was in the Apartment Building in Precinct 1. The two skins of the partition wall were joined using metal brick ties spaced throughout the wall in the mortar bed joints. The partition wall was free standing. On the Friday prior to the incident the wall was built up to 1.5 - 1.6 metres and left to set over the weekend. On the following Monday the wall was completed to the full height of 2.7m. There were other similar walls in the immediate vicinity and in Precinct 1.
15. The partition wall was to be part of an external wall between the living room and the balcony with the remainder of the wall to be windows and a sliding glass door.
16. On 29 March 2007 Robert Watson assisted Kenneth Lewis (Lewis) to complete construction of a brick wall situated on level 1 of building 1C of the site. Upon the completion of that work, Robert Watson commenced constructing a dividing wall between the balconies of two apartments. He was working in the vicinity of the partition wall, which was positioned perpendicular to where he was constructing the dividing wall.
17. At the time Robert Watson was working alone, although there were other people working in the general area. He commenced setting out the base and subsequent course of the brickwork for the dividing wall, starting from the edge of the balcony and working in a perpendicular direction toward the centre of the partition wall. He was positioned on the right hand side of the dividing wall on the balcony of the area designated as apartment 4. There was a stack of unused bricks directly behind him.
18. At approximately 2:00pm while Robert Watson was working near the partition wall the partition wall collapsed and fell over onto Robert Watson. The weight of the collapsed wall forced Robert Watson's head onto the front left hand side corner of one of the dividing wall bricks. A significant portion of his body was crushed under the weight of the collapsed wall. The safety helmet that Robert Watson had been wearing at the time of the incident was badly dented.
19. There were no eye-witnesses to the incident. When found by his co-workers immediately after the wall collapsed, Robert Watson was positioned with his head hanging over the edge of the balcony and his chest on top of the 'starter bars' (steel concrete reinforcement bars) on the edge of the balcony. Robert Watson's feet were pointing in the direction of the main balcony slab and his body was in a crouched position. Bricks and debris covered his head and body, and scaffold planks were positioned around his lower legs and feet. Attempts to revive Robert Watson at the scene were unsuccessful.
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The Reasons for the Collapse
20. Before the incident, people engaged by Gallim had leant a number of timber scaffolding planks against the partition wall involved in the incident. It was not known when these planks were laid against the wall or for how long they were leant against the wall. A photograph taken by Michael Fague prior to the incident shows that there were no planks leaning against the collapsed wall at the time the photograph was taken. When interviewed by Inspector Michael Duncan and Inspector Anthony Flintham, both of WorkCover, on 3 September 2007, Michael Fague indicated that he believed that the photograph marked "MD1" was taken by him within 15 minutes of the time the incident occurred.
21. Following the incident Mainbrace engaged Joe Tropiano (Tropiano), Structural Engineer of Taylor Thompson Whiting, to provide an engineering report in relation to any remedial works required at the site. Mr Tropiano's report identified brick walls that required bracing and recommended that all building materials leaning against brick walls be removed to prevent superimposed lateral loads on the walls.
22. Chris Turner, a Senior Engineer of WorkCover Strategic Specialist Services Group, provided an Engineering Report dated 4 November 2008 in relation to the incident involving Robert Watson. Mr Turner's report identified that the partition wall was in a significant state of weakness at the time of its collapse and that the most likely cause of the partition wall collapse was the lateral load imposed by the scaffold planks leant against the partition wall.
The Site
23. On 30 March 2007, Inspector Flintham attended the site and made observations obtained in a Factual Inspection Report dated 30 March 2007. On 30 March 2007 whilst at the site, Inspector Flintham took a number of photographs.
Occupational Health and Safety Systems at the Site
24. The contract between Gallim and Mainbrace dated 31 January 2007 outlined the parties' mutual occupational health and safety responsibilities for the works to be completed at the site.
25. Mainbrace had undertaken a documented assessment of the hazards and risks associated with the works being undertaken at the site. The document was titled 'Hazard and Risk Assessment, Revision 1A, Kooindah Waters Golf Resort, Stage 2' and was dated 22 November 2006.
26. Mainbrace had in place a documented occupational health and safety management plan for the site. The document was titled 'Mainbrace, Site Safety Plan, Revision G, Project Job Number 402, Kooindah Waters Golf Resort' and was dated 22 November 2006. A copy of the Site Safety Plan is Annexure F. Mainbrace provided a general induction to all people working at the site and maintained a 'site Induction Register' and 'site Induction Forms' (various entry dates) of the people to whom the induction had been provided to. The site Induction Register indicates that Robert Watson received an induction.
27. Mainbrace also had in place a 'Safety Plan Review Register' and 'Safety Plan Review Checklists' (various entry dates) for the works at the site. Mainbrace had in place 'Work Method Statement Checklists' (various entry dates) for the works undertaken at the site. Mainbrace had in place a 'Plant and Equipment Register' (various entry dates) for the works undertaken at the site. Mainbrace had in place documented 'Toolbox Meetings Records' (various entry dates) in respect of tool box discussion meetings held in relation to the works at the site. Mainbrace had in place documented 'Weekly Safety Walk Minutes' (various entry dates) for the works undertaken at the site. Mainbrace had in place documented 'Monthly Safety Reports' for the works undertaken at the site (various entry dates).
28. Mainbrace issued two 'Safety Improvement Notices' upon Gallim dated 27 March 2007 in respect of non-compliance with the site Safety Policy in that two of Gallim's employees failed to wear appropriate safety equipment (a hard-hat and vest). Gallim was required under the contract to comply with the terms of the notices.
29. Mainbrace site Manager, Richard Hardy, site Foreman Matthew Hayes, and Sub-Foreman, Kenneth James, were present at the site. Each were relevantly supervisors and supervised work at the site.
30. Safety audits performed by Mainbrace did not identify or address the risks arising from brick and block laying including: constructing inadequately braced or unsupported brick or block walls at the site, and in particular partition walls; the placement of scaffold planks against inadequately braced or unsupported walls, and in particular partition walls; and working in the vicinity of inadequately braced or unsupported walls, and in particular partition walls .
31. Safety information, instruction and training provided by Mainbrace did not adequately identify or address the risks arising from brick and block laying including: constructing inadequately braced or unsupported brick or block walls at the site, and in particular partition walls; the placement of scaffold planks against inadequately braced or unsupported walls, and in particular partition walls; and working in the vicinity of inadequately braced or unsupported walls, and in particular partition walls.
32. Gallim had in place and provided to Mainbrace a generic 'Safety Management Plan' dated 16 January 2007 for the brick and block laying works at the site. Gallim had in place a 'Hazardous Substances Register' dated 16 January 2007. The register identified 'mortar/cement mix' as a risk. A 'Material Safety Data Sheet' (undated) was attached to the register and outlined relevant precautions and methods of safe use of mortar/cement mix. Gallim had in place a documented 'Hazard Identification and Risk Assessment' dated 16 January 2007 in respect of the brick and block laying works undertaken at the site. The document identified the risk of 'laying bricks and blocks on three storey high buildings' and the risk of 'walls blowing over'. The method identified for minimising the risks were identified as "site specific SWMS". Gallim had in place a 'Safe Work Method Statement' (SWMS) dated 24 January 2007 for the brick and block laying works at the site. The SWMS specified:
Bracing of brick & block walls' 'Free standing walls (not tied) must be braced at an angle of 45 degrees creating a right angle support for wall to prevent it collapsing.
33. It was not common practice for people at the site to brace walls whilst they were being constructed. They were not required to do so in all cases. After the incident it was found that many of the walls should have been braced .
34. Gallim did not adequately identify or inform or train its employees or its subcontractors in relation to the potential risks and hazards associated with: stacking planks or other materials against unsupported brick or block walls, and in particular partition walls; inadequate bracing or support of brick or block walls, and in particular partition walls; and working in the vicinity of a brick or block walls that were inadequately braced or otherwise supported. Gallim had in place a documented 'Training Attendance Register' (undated) and an 'OHS Induction Register' dated 16 January 2007 that were not signed by any of the people engaged by Gallim to assist with the brick and block laying at the site.
35. Gallim had in place a documented 'Equipment Register' (undated). The Equipment Register was not completed and was not signed by any of the people engaged by Gallim to assist with the brick and block laying at the site. Gallim had in place a documented 'Lifting Gear Register' (undated). The Lifting Gear Register was not completed and was not signed by any of the people engaged by Gallim to assist with the brick and block laying at the site. Gallim had a document described as 'Personal Protective Equipment Issue Record' dated 5 February 2007. It was signed by some, but not all, of the people engaged by Gallim to assist with the brick and block laying at the site. Gallim had a document described as 'Record of Tool Box Talks' (undated). The documented Record of Tool Box Talks was not completed and was not signed by the people engaged by Gallim to assist with the brick and block laying at the site. Gallim had a document described as 'Subby Pack Check List' (undated). The Subby Pack Check List was not completed and was not signed by the people engaged by Gallim to assist with the brick and block laying at the site. Gallim did not provide a site induction to persons it engaged to assist with the brick and block laying at the site .
36. Site Supervisors engaged and/or employed by Gallim did not ensure that brick or block walls, and in particular partition walls, at the site were adequately braced or otherwise supported. Site Supervisors engaged and/or employed by Gallim did not ensure that lateral loads were not placed against brick or block walls, and in particular partition walls, at the site that were not adequately braced or otherwise supported.
37. Prior to the incident there was no system in place to check either periodically or at all whether walls at the site were secure and not at risk of collapsing either because they were not braced or were in a state of weakness.
Action After the Incident
38. Following the incident, all works at the site ceased for approximately two weeks. WorkCover issued to Mainbrace a Prohibition Notice (No. 144239) dated 29 March 2007 that required Mainbrace to engage a structural engineer to carry out an inspection of the first floor of the apartment building at the site to determine the structural stability of all walls and to identify any remedial action required so as to ensure structural stability and safety of employees at the site .
39. In compliance with Prohibition Notice (No. 144239) Mainbrace engaged Tropiano of Taylor Thompson Whiting to assess the site on 30 March 2007. Tropiano provided a report dated 30 March 2007 which highlighted a large number of walls at the site that Tropiano said should be braced in the manner shown in the report so as to provide lateral stability against wind and/or accidental loading and included the following recommendations:
All material such as planks, scaffold frames pallets etc leaning against brick walls are to be removed so that there is no superimposed lateral load on the walls;
From now on intersecting walls to be built concurrently with main walls to a minimum height equal to half the height of the main wall then raked back. This applies particularly to blade walls.
40. On 30 March 2007 Mainbrace implemented Tropiano's recommendations on site and satisfactorily complied with the Prohibition Notice 144239 issued by WorkCover.
41. Following the incident Gallim revised it SWMS dated 24 January 2007 in accordance with the recommendations made by Tropiano. The revised SWMS specified:
Bracing of brick & block walls' 'Free standing walls (not tied) must be braced at an angle of 45 degrees creating a right angle support for wall to prevent it collapsing.' 'Person who will ensure this happens, site Manager and Employees'; and
'Walls under construction' 'Use of veneer ties and brace on new walls as per Engineers Instructions. Blade and return walls to be built concurrently. Ensure walls clear of any lateral loads.' 'Person who will ensure this happens, site Manager, Engineer and Employees.'
ANNEXURE
AGREED STATEMENT OF FACTS
MAINBRACE CONSTRUCTIONS (NSW) PTY LTD (IRC 378 of 2009)
At all material times the prosecutor, Inspector Michael Duncan, was duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter.
The Parties
Mainbrace Constructions (NSW) Pty Ltd (Mainbrace) was a corporation with its registered office situated at 64 Chandos Street, St Leonards in the State of New South Wales. Mainbrace was an employer. Its undertaking was the provision of commercial construction services.
Gallim Constructions Pty Ltd (Gallim) was a corporation. Gallim was an employer. Gallim's undertaking included the provision of brick and block laying services.
Gallim entered into voluntary liquidation on 28 February 2008.
On about 4 December 2001 Lakeside Resort Developments Pty Limited (Lakeside), the owner of premises at 131 - 151 Pollock Avenue, Wyong, in the State of New South Wales (site), entered into a joint venture with Clarendon Resort Housing Pty Ltd (Clarendon) to undertake the construction of a development known as the 'Kooindah Waters Project'. The project involved the integration of a residential/golf resort complex into the existing surrounds of the Kooindah Waters Golf Course. In accordance with the joint venture, Lakeside provided the land and Clarendon arranged the funding and the construction contractors for the project.
The development works at the site were divided into three precincts. Precinct 1 included the design and construction of a Health Facility Building, a Golf Clubhouse, an Apartment Building and a car park. Precinct 2 included the design and construction of residential facilities. Precinct 3 was set aside for future works.
On about 6 February 2006 Clarendon entered into a contract with Mainbrace Constructions (NSW) Pty Limited (ACN 055 876 652) (Mainbrace) for the development works within Precinct 1. Under that contract, Clarendon subcontracted all of the development works for Precinct 1 to Mainbrace. The development works contracted to Mainbrace included the design and construction of a health facility building, a golf clubhouse, a car park and an apartment building. Clarendon was responsible for all development works in Precinct 2 including the design and construction of residential facilities.
On 31 January 2007 Mainbrace and Gallim entered into a contract. Under the contract Gallim was to provide supervision, labour, materials, testing, transport, plant and equipment for the purpose of the supply and laying of bricks and blocks at the site and in particular in Precinct 1.
At all material times Mainbrace employees who worked at the site included Matthew Hayes, Richard Hardy, Kenneth James, Chris Lazeronie, Rhys Douglass, Collin Vickory, Michael Doust, Michael Fague and Gregory Scott.
Gregory Allen Scott (Scott) was employed by Mainbrace as a construction manager for various projects, and attended the site from time to time. Scott was also the managing director of Mainbrace. Other directors being Robert Doust and Michael Witts sometimes visited the site but did not have regular involvement with it. Two other directors Gregor Maxwell Millson and Peter Rodney McKinnon did not have direct involvement with the site. The full-time site manager employed by Mainbrace at the site was Richard Hardy. Mr Hardy was directly accountable to Michael Fague, who was employed by Mainbrace as the full-time project manager of the site. Both Mr Hardy and Mr Fague were ultimately accountable to Gregory Scott.
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Action After the Incident
38. Following the incident, all works at the site ceased for approximately two weeks. WorkCover issued to Mainbrace a Prohibition Notice (No. 144239) dated 29 March 2007 that required Mainbrace to engage a structural engineer to carry out an inspection of the first floor of the apartment building at the site to determine the structural stability of all walls and to identify any remedial action required so as to ensure structural stability and safety of employees at the site.
39. In compliance with Prohibition Notice (No. 144239) Mainbrace engaged Tropiano of Taylor Thompson Whiting to assess the site on 30 March 2007. Tropiano provided a report dated 30 March 2007 which highlighted a large number of walls at the site that Tropiano said should be braced in the manner shown in the report so as to provide lateral stability against wind and/or accidental loading and included the following recommendations:
All material such as planks, scaffold frames pallets etc leaning against brick walls are to be removed so that there is no superimposed lateral load on the walls;
From now on intersecting walls to be built concurrently with main walls to a minimum height equal to half the height of the main wall then raked back. This applies particularly to blade walls.
40. On 30 March 2007 Mainbrace implemented Tropiano's recommendations on site and satisfactorily complied with the Prohibition Notice 144239 issued by WorkCover.
41. Following the incident Gallim revised it SWMS dated 24 January 2007 in accordance with the recommendations made by Tropiano. The revised SWMS specified:
Bracing of brick & block walls' 'Free standing walls (not tied) must be braced at an angle of 45 degrees creating a right angle support for wall to prevent it collapsing.' 'Person who will ensure this happens, site Manager and Employees'; and
Walls under construction' 'Use of veneer ties and brace on new walls as per Engineers Instructions. Blade and return walls to be built concurrently. Ensure walls clear of any lateral loads.' 'Person who will ensure this happens, site Manager, Engineer and Employees.
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.
Decision last updated: 23 February 2011
firstly, that the statement of offence must set out the "nature" of the alleged offence;
secondly, particulars may be supplied after the initiating process has been filed and served;
thirdly, the particulars necessary to indicate "the nature" of the alleged offence are not the same as the extensive particulars that might otherwise be given on a request for further and better particulars;
fourthly, the "nature" of the case may be further exposed to the defendant by reference to the affidavit of the Inspector filed with the initiating proceedings;
fifthly, the acts or omissions alleged against the defendant may be inferred from the nature of the charge and the particulars supplied.
58Applying those approaches to the particulars in this matter, there is no confusion or lack of specification present as argued by the defendant. It is clear from the first of the three particulars that the risk was that brick or block walls, and in particular partition walls, could fall and what was required of the defendant to prevent that happening was firstly, to adequately brace or otherwise support the walls; secondly, to ensure that lateral loads were not placed against the walls; and thirdly, to ensure that employees and non-employees working in the vicinity of such walls were not permitted to so work unless the walls were adequately braced or supported, nor were they to work there if lateral loads were placed against such walls. It is to be inferred from these initial three particulars that the adequate risk assessment was to address the steps to be taken to guard against the collapse of the walls and such a risk assessment would identify the risks of unbraced walls and walls being subject to lateral pressure. The failure to provide adequate information, instruction and training and supervision, again by inference in the context of the first three particulars, was such information, instruction and training and supervision as would inform and require employees and non-employees not to work in the vicinity of walls that were not adequately braced or walls where lateral pressure was applied to them and otherwise to take steps to brace the walls and not place lateral pressures against such walls.
59Significantly, these were the matters identified in the Statement of Agreed Facts. Paragraphs 20 - 22 of the Statement of Agreed Facts in Mainbrace dealt with the reasons for the collapse and identified the cause as being timber planks being leaned against a partition wall. Further, a report received by Mainbrace after the accident identified a cause as being brick walls that required bracing and recommended that all building materials leaning against brick walls be removed to prevent superimposed lateral loads on those walls. A report also identified that the partition wall was in a significant state of weakness at the time of its collapse and most likely collapsed because of the lateral load imposed upon it by the scaffold planks leaning against it. It was accepted that a safety audit conducted by Mainbrace did not adequately identify the risks arising from brick and block laying, including: constructing inadequately braced or unsupported brick or block walls at the site and in particular partition walls; the placement of scaffolding against inadequately braced or unsupported walls and in particular partition walls; and, working in the vicinity of inadequately braced or unsupported walls and in particular, partition walls.
60Paragraph 31 of the Agreed Statement of Facts stated that safety information, instruction and training provided by Mainbrace did not adequately identify the risks arising from brick and block laying, including: constructing inadequately braced or unsupported brick or block walls at the site and in particular partition walls; the placement of scaffold planks against inadequately or unsupported walls, and in particular partitioned walls; working in the vicinity of inadequately braced or unsupported walls and in particular, partition walls. Further, after the accident Mainbrace was issued with a Prohibition Notice requiring it to engage a structural engineer to carry out an inspection of the first floor of the apartment building to determine the structural stability of all walls and to identity any remedial action required so as to ensure structural stability and safety of employees. In compliance with that notice, Mainbrace engaged specialists who recommended that all materials, planks, scaffolding frames, palettes etc leaning against brick walls were to be removed so that there was no superimposed lateral load on the walls and in the future, intersecting walls were to be built concurrently with main walls to a minimum height equal to half the height of the main wall then raked back. This applied particularly to blade walls.
61The defendant's motion, in substance, raises issues about particulars. For the reasons indicated above, the defendant cannot sustain its contention that the charges were not particularised as required by Kirk or that it could now know what acts or omission were alleged against it thus preventing the company from utilising the statutory defences. The submission that the particulars did not address, but were required to address, the contractual arrangements between Mainbrace and Gallim is difficult to understand in the Kirk context and appears to be misconceived.
Having regard to these maters, the motion is dismissed.
62Without objection from the prosecutor, Mainbrace then made submissions in the alternative going to the appropriate penalty to be imposed on the defendant. These submissions were made if Mainbrace's challenge to the validity of the charge failed.
63While asserting that Kirk also had significance for the sentencing of Mainbrace, the alternative submissions repeated numerous matters that had been already raised in the sentencing hearing conducted on 16 December 2009. The Court in reaching its decision on penalty has already considered those matters. Mainbrace, however, raised the following additional matters:
(a) the incident giving rise to the prosecution took place in late March 2007 and a further 12 months or more had passed since the Court deferred proceeding to sentence in light of the High Court decision in Kirk;
(b) in the intervening period, Mainbrace had not come to notice for any further breach of Occupational Health and Safety legislation;
(c) had the previous prosecution of Mainbrace (its prior offence) occurred after Kirk, it would have had to comply with the process laid down by the High Court. A hearing under the Kirk process, at the very least, would have allowed the defence of reasonable practicability;
(d) Mainbrace had chosen to maintain its plea of guilty if the challenge to validity failed and therefore proceeds to sentence on the pleadings determined by the Court in accordance with procedural fairness and having made its best assessment (in the absence of more specific particulars) as to the merits of proceeding to a defended hearing. By maintaining its plea of guilty, having failed to succeed in the challenge to the validity of the proceedings, the defendant had conducted itself "as a model industrial litigant." Mainbrace had saved the parties and the Court the time and expense of a contested trial.
64It was submitted, having regard to these matters, as a matter of fairness and justice, no conviction should be recorded against Mainbrace. This result was justified because firstly, for over 13 years many people had worked on Mainbrace worksites in an extremely high risk industry and secondly, such an outcome was appropriate considering the relevant common law principle of justice that requires a superior Court of Record to simply step in to right an obvious wrong and to grant "mercy" in criminal proceedings to a worthy defendant. Specific reference was made to the judgment of the Court of Criminal Appeal in Thorneloe v Filipowski (2001) 52 NSWLR 60. In that case the court drew attention to a situation where a strict liability offence occurred in circumstances where the defendant had little practical means of avoiding the offence and how such circumstances led to a proper consideration of the application of the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 and consideration of the concept of mercy.
65In making this belated application for an order under s 10 of the Sentencing Act , Mainbrace's submissions did not directly address either sub-section (2) or sub-section (3). In relation to an order discharging the person on condition that the person enter into a good behaviour bond, such an order may be made if the Court is satisfied that it is inexpedient to inflict any punishment, other than nominal punishment, or where it is expedient to release the person on a good behaviour bond. In relation to whether an order should be made directing that the charge be dismissed or whether a good behaviour bond should be imposed, the Court is required to have regard to: the person's character, antecedents, age, health and mental condition; the trivial nature of the offence; the extenuating circumstances in which the offence was committed; and, any other matter that the court thinks proper to consider. In the Court's consideration as to penalty the character and antecedents of the defendant Mainbrace have been properly considered but a finding has been made that this is a serious breach. In those circumstances it is not open to the Court to conclude that the offence was trivial in its nature. That finding alone does not mean that a s 10 order is unavailable but it is also the fact that there are no extenuating circumstances shown to exist in relation to this breach. The position is very different to that considered in Thorneloe where the strict liability offence occurred in circumstances where the defendant, in relation to a comparatively minor offence of pollution, was not able to take any effective step to prevent the spillage occurring. That is not the case in the present breach by Mainbrace where simple and available steps could have been enforced on site to prevent this tragic accident. While the Court has identified many subjective factors that mitigate the penalty to be imposed, this is not a case where it is appropriate for an order to made pursuant to the provision of s 10 of the Sentencing Act.
At all material times Oliver Joseph Enright (Enright) was the sole director of Gallim. Enright was also the site supervisor for Gallim at the site. He was on site on a day to day basis.
At all material times Gallim contracted with other people to assist it in performing the subcontract works. These included Kenneth Lewis, Mark Dowd, Rod Bowden, Paul O'Reilly, Reece Brewer, Thomas Rhyan, Scott Gallway, Keith Foster, Peter Cousins, Ian Mason, Robert Peak, Shannon Mahon, Arthur Tucks, Jim McGrath, Ross Zikan, Oliver Enright, and in particular, Robert George Robert Watson. By reason of its contractual relationship with Mainbrace and its sub contractors Gallim was able to control the site.
Robert Watson was a 53-year-old trade-qualified bricklayer. He was one of the people engaged by Gallim to assist with the subcontract works at the site. His main role was to lay bricks.
The Incident
Two days before the incident the bricklayers engaged by Gallim, including Robert Watson, constructed a double skinned external wall of approximately 2.7 metres in height and 1.46 metres in width (partition wall). This was in the Apartment Building in Precinct 1. The two skins of the external wall were joined using metal brick ties spaced throughout the wall in the mortar bed joints. The external wall was free standing. It was not tied to any other brick wall and it was not braced or otherwise supported in any way. It was not supported by any temporary support. There were other similar walls in the immediate vicinity and in Precinct 1.
The wall was to be part of an external wall between the living room and the balcony with the remainder of the wall to be windows and a sliding glass door.
On 29 March 2007 Robert Watson assisted Kenneth Lewis (Lewis) to complete construction of a brick wall situated on level 1 of building 1C of the site. Upon the completion of that work, Robert Watson commenced constructing a dividing wall between the balconies of two apartments. He was working in the vicinity of the partition wall, which was positioned perpendicular to where he was constructing the dividing wall.
At the time Robert Watson was working alone, although there were other people working in the general area. He commenced setting out the base and subsequent course of the brickwork for the dividing wall, starting from the edge of the balcony and working in a perpendicular direction toward the centre of the partition wall. He was positioned on the right hand side of the dividing wall (as viewed from the interior of the building looking outwards) on the balcony of the area designated as apartment 4. There was a stack of unused bricks directly behind him.
At approximately 2:00pm while Robert Watson was working near the partition wall the partition wall collapsed and fell over onto Robert Watson. The weight of the collapsed wall forced Robert Watson's head onto the front left hand side corner of one of the dividing wall bricks. A significant portion of his body was crushed under the weight of the collapsed wall. The safety helmet that Robert Watson had been wearing at the time of the incident was badly dented.
There were no eye-witnesses to the incident. When found by his co-workers immediately after the wall collapsed, Robert Watson was positioned with his head hanging over the edge of the balcony and his chest on top of the 'starter bars' (steel concrete reinforcement bars) on the edge of the balcony. Robert Watson's feet were pointing in the direction of the main balcony slab and his body was in a crouched position. Bricks and debris covered his head and body, and scaffold planks were positioned around his lower legs and feet. Attempts to revive Robert Watson at the scene were unsuccessful.
The Reasons for the Collapse
Before the incident, people engaged by Gallim had leant a number of timber scaffolding planks against the partition wall involved in the incident. There is no certainty as to when these planks were laid against the wall or for how long they were leant against the wall. A photograph taken by Michael Fague prior to the incident shows that there were no planks leaning against the collapsed wall at the time the photograph was taken. When interviewed by Inspector Michael Duncan and Inspector Anthony Flintham, both of WorkCover, on 3 September 2007, Michael Fague indicated that he believed that the photograph marked "MD1" was taken by him within 15 minutes of the time the incident occurred.
Following the incident Mainbrace engaged Joe Tropiano (Tropiano), Structural Engineer of Taylor Thompson Whiting, to provide an engineering report in relation to any remedial works required at the site. The report and annexure by Taylor Thompson Whiting dated 30 March 2007 identified brick walls that required bracing and recommended that all building materials leaning against brick walls be removed to prevent superimposed lateral loads on the walls.
Chris Turner, a Senior Engineer of WorkCover Strategic Specialist Services Group, provided an Engineering Report dated 4 November 2008 in relation to the incident involving Robert Watson. Mr Turner's report identified that the partition wall was in a significant state of weakness at the time of its collapse and that the most likely cause of the partition wall collapse was the lateral load imposed by the scaffold planks leant against the partition wall.
The Site
On 30 March 2007, Inspector Flintham attended the site and made observations obtained in a Factual Inspection Report dated 30 March 2007. On 30 March 2007 whilst at the site, Inspector Flintham took a number of photographs.
Occupational Health and Safety Systems at the Site
The contract between Gallim and Mainbrace dated 31 January 2007 outlined the parties' mutual occupational health and safety responsibilities for the works to be completed at the site.
Mainbrace had undertaken a documented assessment of the hazards and risks associated with the works being undertaken at the site. The document was titled 'Hazard and Risk Assessment, Revision 1A, Kooindah Waters Golf Resort, Stage 2' and was dated 22 November 2006.
Mainbrace had in place a documented occupational health and safety management plan for the site. The document was titled 'Mainbrace, Site Safety Plan, Revision G, Project Job Number 402, Kooindah Waters Golf Resort' and was dated 22 November 2006. Mainbrace provided a general induction to all people working at the site and maintained a 'Site Induction Register' and 'Site Induction Forms' (various entry dates) of the people to whom the induction had been provided to. The Site Induction Register indicates that Robert Watson received an induction.
Mainbrace also had in place a 'Safety Plan Review Register' and 'Safety Plan Review Checklists' (various entry dates) for the works at the site. Mainbrace had in place 'Work Method Statement Checklists' (various entry dates) for the works undertaken at the site. Mainbrace had in place a 'Plant and Equipment Register' (various entry dates) for the works undertaken at the site. Mainbrace had in place documented 'Toolbox Meetings Records' (various entry dates) in respect of tool box discussion meetings held in relation to the works at the site. Mainbrace had in place documented 'Weekly Safety Walk Minutes' (various entry dates) for the works undertaken at the site. Mainbrace had in place documented 'Monthly Safety Reports' for the works undertaken at the site (various entry dates).
Mainbrace issued two 'Safety Improvement Notices' upon Gallim dated 27 March 2007 in respect of non-compliance with the site Safety Policy in that two of Gallim's employees failed to wear appropriate safety equipment (a hard-hat and vest). Gallim was required under the contract to comply to the terms of the notices.
Mainbrace site Manager, Richard Hardy, site Foreman Matthew Hayes, and Sub-Foreman, Kenneth James, were present at the site. Each were relevantly supervisors and supervised work at the site.
Safety audits performed by Mainbrace did not adequately identify the risks arising from brick and block laying including: constructing inadequately braced or unsupported brick or block walls at the site, and in particular partition walls; the placement of scaffold planks against inadequately braced or unsupported walls, and in particular partition walls; and working in the vicinity of inadequately braced or unsupported walls, and in particular partition walls.
Safety information, instruction and training provided by Mainbrace did not adequately identify the risks arising from brick and block laying including: constructing inadequately braced or unsupported brick or block walls at the site, and in particular partition walls; the placement of scaffold planks against inadequately braced or unsupported walls, and in particular partition walls; and working in the vicinity of inadequately braced or unsupported walls, and in particular partition walls.
Gallim had in place and provided to Mainbrace a 'Safety Management Plan' dated 16 January 2007 for the brick and block laying works at the site. Gallim had in place a 'Hazardous Substances Register' dated 16 January 2007. The register identified 'mortar/cement mix' as a risk. A 'Material Safety Data Sheet' (undated) was attached to the register and outlined relevant precautions and methods of safe use of mortar/cement mix. Gallim had in place a documented 'Hazard Identification and Risk Assessment' dated 16 January 2007 in respect of the brick and block laying works undertaken at the site. The document identified the risk of 'laying bricks and blocks on three storey high buildings' and the risk of 'walls blowing over'. The method identified for minimising the risks were identified as "site specific SWMS". Gallim had in place a 'Safe Work Method Statement' (SWMS) dated 24 January 2007 for the brick and block laying works at the site. The SWMS specified:
Bracing of brick & block walls' 'Free standing walls (not tied) must be braced at an angle of 45 degrees creating a right angle support for wall to prevent it collapsing.' 'Person who will ensure this happens, site Manager and Employees.
The report and annexure by Taylor Thomson Whiting dated 30 March 2007 indicated that not all of the walls on Level 1 of the Apartment Building that should have been braced whilst being constructed had bracing. There were 56 walls on Level 1 of the Apartment Building and 21 of those walls were not braced and required bracing.
Gallim did not adequately identify or inform or train its employees or iits subcontractors in relation to the potential risks and hazards associated with: stacking planks or other materials against unsupported brick or block walls, and in particular partition walls; inadequate bracing or support of brick or block walls, and in particular partition walls; and working in the vicinity of a brick or block walls that were inadequately braced or otherwise supported. Gallim had in place a documented 'Training Attendance Register' (undated) and an 'OHS Induction Register' dated 16 January 2007 that were not signed by any of the people engaged by Gallim to assist with the brick and block laying at the site.
Gallim had in place a documented 'Equipment Register' (undated). The Equipment Register was not completed and was not signed by any of the people engaged by Gallim to assist with the brick and block laying at the site. Gallim had in place a documented 'Lifting Gear Register' (undated). The Lifting Gear Register was not completed and was not signed by any of the people engaged by Gallim to assist with the brick and block laying at the site. Gallim had a document described as 'Personal Protective Equipment Issue Record' dated 5 February 2007. It was signed by some, but not all, of the people engaged by Gallim to assist with the brick and block laying at the site. Gallim had a document described as 'Record of Tool Box Talks' (undated). The documented Record of Tool Box Talks was not completed and was not signed by the people engaged by Gallim to assist with the brick and block laying at the site. Gallim had a document described as 'Subby Pack Check List' (undated). The Subby Pack Check List was not completed and was not signed by the people engaged by Gallim to assist with the brick and block laying at the site. Gallim did not provide a site induction to persons it engaged to assist with the brick and block laying at the site.
Site Supervisors engaged and/or employed by Gallim did not ensure that brick or block walls, and in particular partition walls, at the site were adequately braced or otherwise supported. Site Supervisors engaged and/or employed by Gallim did not ensure that lateral loads were not placed against brick or block walls, and in particular partition walls, at the site that were not adequately braced or otherwise supported.
Prior to the incident there was an inadequate system in place to check either periodically or at all whether walls at the site were secure and not at risk of collapsing either because they were not braced or were in a state of weakness.