Inspector Gjaltema v Boral Australian Gypsum Limited

Industrial Relations Commission (NSW)|2005-07-22|Before: Boland J, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector Gjaltema v Boral Australian Gypsum Limited [2005] NSWIRComm 252

PROSECUTOR Inspector John Gjaltema PARTIES: DEFENDANT Boral Australian Gypsum Limited

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 2000

Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Inspector Gjaltema v Masterbuilt Pty Limited [2004] NSWIRComm 399 Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 CASES CITED: R v Thomson, R v Houlton (2000) 49 NSWLR 383 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163

PROSECUTOR Mr J V Agius SC and Ms L McManus of counsel Solicitor: Ms R Panagoda WorkCover Authority LEGAL REPRESENTATIVES:

DEFENDANT Mr G J Hatcher SC Solicitor: Mr A Morrissey Hunt & Hunt Lawyers

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR GJALTEMA v BORAL AUSTRALIAN GYPSUM LIMITED

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

1 Boral Australian Gypsum Limited ("the defendant") trading as National Ceiling Systems carried on the business of supplying and fixing plasterboard. In December 2001 the defendant was contracted by the company Masterbuilt Pty Ltd to supply and fix internal linings at the construction of a two-storey house at Lot 207, Sue Place, Mt Colah, in the State. Lot 207 was part of a housing project owned by Masterbuilt and consisted of 11 homes being built. 2 Sydney David Saunders was a self-employed contractor engaged in the business of fixing cornices once plastering work had been completed. Mr Saunders attended Lot 207 on Saturday 15 December 2001 to set the cornices. At about 2.30pm that day a passer-by saw Mr Saunders lying unconscious in the stairwell on the ground floor. Mr Saunders was taken to hospital and later died from his injuries. A post mortem report found that Mr Saunders suffered a fractured skull. The direct cause of death was blunt force head injury. 3 The defendant was subsequently prosecuted by Inspector John Gjaltema of the WorkCover Authority of New South Wales for breach of s 8(2) of the Occupational Health and Safety Act 2000. Section 8(2) provides: 2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 4 The charge against the defendant alleged the defendant failed to: [E]nsure that people not in its employment, in particular Sydney David Saunders (also known as David Saunders) were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work contrary to Section 8(2) of the Occupational Health and Safety Act 2000 5 The particulars of the charge were that the defendant: (a) failed to provide handrails, safety fences or other forms of physical barriers capable of preventing the fall of persons in the vicinity of the stairway void on the first floor of Lot 207, Sue Place, Mt Colah, NSW (LOT 207);

(b) failed to provide adequate or proper supervision to ensure that adequate handrails, safety fences or other forms of physical barriers capable of preventing the fall of persons from the first floor of the Site were in place prior to persons commencing work on the first floor of Lot 207. 6 Initially, the defendant pleaded not guilty to the charge under s 8(2). The proceedings opened on that basis on 9 February 2005. Mr G J Hatcher of senior counsel advised the Court of the defendant's position in the following terms: We concede every element of the facts that the Prosecutor relies on; there is no doubt the house is as described; there is no doubt it was not fenced. Our case is that fencing that area at that time would have introduced an unsafe work practice and indeed the plank my learned friend referred to is included in the agreed bundle of documents which is a plank that was introduced after the incident though not as a result of the incident requires that handrails be removed before employees start, before the contractors start moving their tools and product from the ground floor to the first floor. The evidence will reveal why we say it is an unsafe procedure to put in place a handrail. If we be wrong on that we say in any event it was not practical in the terms of the legislation in the circumstances surrounding the charge. Our principle case is it is simply unsafe to do it in the way the prosecutor urges and it is something our client considered because our client does many, many of those houses and has done for many, many years and the evidence will be that it has done it without incident until this incident which is said and agreed not to relate to this system of work. Your Honour, it will be our case that the new scaffolding as it has been described perhaps not accurately but a useful description of the system now in place, is a system that was developed after the incident and again unrelated to the incident. As it happens and the evidence will reveal our client was in the process of attempting to put in such a system. The motive for the system was not to remove the risk that the prosecutor relies on in this case but to remove the risk attendant on the next phase when the cove or cornice fixers are required to work in the void. Our client's procedure at the time required that if scaffolding was appropriate, it would be put in. If the area was too small for scaffolding - and this area was too small - then the gyprock fixers and the cove fixers were required to plank out the area - a procedure that was of course on the evidence followed in relation to the plaster board fixers and a procedure that had not yet called for consideration so far as the cornice fixer was concerned. Because what he was in the process of doing on the day the offence was alleged, was simply preparing to fix the cornice. So your Honour, it is not a case where your Honour is put in a position with having to deal with conflicting evidence about facts; your Honour is here to determine what is the safe system of work in the circumstances where our client will establish on the evidence that it has turned its mind to it and has specifically decided not to put in place the system because it says it was an unsafe system. That is the area of debate. 7 Mr J V Agius SC for the prosecutor called evidence from Mr M Nuner, Contracting Manager with Boral Plaster and Mr Nuner was cross-examined. The prosecutor also called Mr M Vshivkoff, a fixer and Mr D E Macefield, Operations Coordinator/Senior Estimator employed by the defendant, to give evidence but they were not required for cross-examination. Other witnesses called by the prosecution were Mr B J Beaver, Project Inspector employed by the defendant and Mr A E Sutton, Construction Manager for Masterbuilt. Mr Beaver was cross-examined by senior counsel for the defendant. Mr Sutton's evidence was not completed at the close of the first day of hearing because Mr Hatcher indicated a matter had arisen in respect of which he needed to obtain instructions. The proceedings were adjourned to the following day. 8 At the commencement of proceedings on 10 February 2005, Mr Hatcher indicated that there had been a development. He said: Your Honour will have noted from the way we conducted the case from the outset our client was committed to defending its safe system of work and continues to see as a safe system of work. Our client did not ask the Court to decide any questions of fact. We made every admission we possibly could other than that the system of work we had in place was a safe system of work. Our client maintains that. Yesterday afternoon, however, Mr Beaver, the supervisor employed by our client, gave evidence that is wholly at odds with the system that is followed by our client. Whether that evidence was given through some misunderstanding of the question or other reason it is now an issue of fact before the court as to the system of work that was followed. Mr Vshivkoff's evidence was quite clear and consistent with our instructions as to what the system of work was. The system of work followed throughout the nation, not just in the particular subject of the claim. Our client, in view of that evidence, has considered its position. Its instructions have been consistent throughout, that is, they wish to defend the system of work they developed and did not want the court to decide the issues of fact and an issue of fact now arises for consideration. On one view Mr Beaver misunderstood the questions. Another view is he didn't understand the system of work. If he didn't understand the system of work, our client is in the position he had a supervisor who didn't understand that system of work and that make good the charge under section 8(2) of the Act and there is no defence our client would wish to maintain. It is not reasonably practical to have its supervisor misunderstand its system of work. On that basis I am instructed to enter a plea of guilty. 9 The plea was accepted and proceedings in relation to sentence were adjourned to 18 April 2005. 10 An agreed statement of facts was tendered into evidence. It is unnecessary to recite all of the detailed information from the agreed statement of facts. The following matters extracted from the agreed statement are, however, pertinent: (1) During the week from about Tuesday 12 December 2001 and finishing on Friday 14 December 2001 Mickey Vshivkoff, Andrew Kirpichnikov and Alex Rodionov ( the fixers ) worked at Lot 207. They had been contracted by the defendant as plasterers to fix and set plasterboard. (2) The fixers worked on both floors of Lot 207. They accessed the first floor of Lot 207 by ladder. (3) There was a void on the first floor. When working on the first floor the fixers used a planking system to completely cover the void after they had passed their equipment and material from the ground floor to the first floor. (4) The fixers took the planking down after they had finished their work on Friday 14 December 2001. (5) Mr Sutton attended the Site approximately 5 times a week during Monday to Friday. He did not work on the weekends. (6) Mr Beaver attended Lot 207 on 11, 12, 13 and 14 December 2001. He inspected Lot 207 to ensure that the defendant's teams were doing work according to the Australian Standards and in a safe manner. (7) Mr Beaver completed a pre-inspection certificate on 11 December 2001. When he attended on 12, 13 and 14 December 2001 he completed a Final Inspection Certificate whilst the fixers (sic) carrying out their work and he was also there when they had completed their work. (8) Although Mr Beaver considered that Lot 207 was ready for the cornice fixer he did not inform the office to start this work. (9) Mr Macefield contacted Mr Saunders by telephone and advised of the address of Lot 207 and Lot 208, the quantity of cornice, and the price to be paid. He did not give specific instructions about which job was to be commenced first but advised that Mr Saunders could start either one, as he wanted. (10) The defendant did not advise Masterbuilt when Mr Saunders would be commencing work. The practice was that sometimes the defendant would advise when tradesmen would commence work but generally a time was not set. (11) Mr Saunders attended Lot 207 on Saturday, 15 December 2001. (12) Contractors were not prohibited from working on weekends. (13) Mr Saunders had commenced cutting cornices for fixing. (14) Mr Saunders did not work on Lot 208. At Lot 207 Mr Saunders had been accessing the ground floor and the first floor. He had been cutting the cornice on the lower level. There were several pieces of cut cornice on the ground floor and the upper floor. In the main bedroom on the first floor there were buckets of water, unmixed cornice cement, tools and some stools. (15) On 17 December 2001 Inspector Michael Kent of the WorkCover Authority, attended the Site. He was directed to the stairwell by Mr Sutton. Inspector Kent observed the following: (a) the opening led into a room that was approximately 3m by 3m; (b) The wall, opposite the front entrance, extended from the floor to the ceiling; (c) In front of and parallel to that wall was a raking gyprock partition wall; (d) In the ceiling, directly above the raking gyprock wall, was an unprotected void; (e) The void had five sides and was similar to a square with a corner cut off; (f) the raking gyprock partition wall appeared to be constructed with timber and lined with gyprock; (g) on the first floor there was a bucket containing a hammer, trowel, nail bag and a Stanley knife. There were 2 planks, 2 trestles, 7 cornices and 2 buckets containing water. (16) On 18 December 2001 Inspector Kent revisited Lot 207. He attended the entry area. He observed the following: (a) a stairway had been installed through the void from the ground floor to the first floor; (b) the two long sides of the void were measured at 2.7m;

(c) the two short sides of the void were measured at approximately 0.98m and 0.99m respectively; (d) the corner side was measured at approximately 1.78m; (e) the first floor was covered by chip board; (f) the height from the top of the first floor to the ground floor concrete slab was approximately 2.7 metres; (g) the raking gyprock wall was measured at approximately 0.11m wide; (h) the outside of the raking gyprock partition wall to the top wall behind was measured horizontally at 0.98 metres. (17) At the request of Senior Constable Merrett, R A (Tony) Walker conducted a mechanical inspection of the ladder. He found that, except for a faulty pin lock retract mechanism, the ladder appeared to be in good condition. The faulty pinlock retract mechanism affected the opening and folding of the ladder. When the pins are set they remain in the locked position and cause no problem with the safe use of the ladder. (18) There was no handrails, safety fences or other forms of physical barriers in place to prevent persons falling from the first floor of the house through the stairway void to the ground floor as at 15 December 2001. 11 The Court was also provided with colour photographs of the site of the incident and other relevant aspects of the dwelling under construction. 12 The principal evidence tendered by the defendant was an affidavit by Mr S Moore, General Manager, New South Wales of the defendant and Mr P Allsopp, National Health Safety and Environment Manager of the defendant. Mr Allsopp was required for cross-examination. Also tendered into evidence was extensive documentary material relating to the defendant's health, safety and environment policies and management system. Consideration

13 It should be made clear at the outset that this was not a case where the defendant's failure to ensure safety led to the death of Mr Saunders. It would appear that Mr Saunders fell from the ladder leading from the ground floor to the first floor of the home under construction. 14 It will be apparent from the submissions I quoted earlier by Mr Hatcher that the defendant pleaded guilty to the charge under s 8(2) of the Act not on the basis that its actual system of work was unsafe but rather on the basis that its supervisor, Mr Beaver, misunderstood the defendant's system of work. The defendant maintained its system was safe. 15 Mr Agius, for the prosecutor, however, submitted that the prosecutor was not bound by the basis upon which the defendant said it pleaded guilty; the defendant had pleaded guilty to the charge and in doing so pleaded guilty to all of the elements of the charge. That is, the defendant pleaded guilty to a charge that it failed to ensure that people not in its employment, in particular Mr Saunders, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work. 16 Mr Agius submitted that [I]t is well and truly open on the whole of the material before this court to find beyond reasonable doubt that the system which permitted subcontractors like cornice fixers and Mr Saunders to have access to the first floor to do anything whether it be to take up his bits of cornice or his trellis (sic - trestles) or his bucket of water or his cement in circumstances where there was no fall protection in place was unsafe and it is our submission that finding is well and truly available. 17 It was further submitted for the prosecutor that: The evidence that the court is being asked to accept is really this, we have pleaded guilty because our supervisor did not know that our system did not require us to (sic) in any edge protection, any fall protection. One might ask rhetorically how does that give rise to a risk to health and safety. How can having a supervisor who wants to impose greater protection for health and safety give rise to a risk to health and safety when the position contended for by the defendant is that there was no risk to health and safety in any event and that exposed the logical flaw in this argument. Clearly Mr Beaver whose job it was to note these things would have formed the view, had he been aware of all the circumstances, that the subcontractor should not have been doing what it was doing without fall protection. That is Mr Beaver's evidence and that must be what has led to this plea of guilty. What we are being presented here with is illogical with respect. Any material could have been passed up, any hand rail, and would not have prevented - we have referred to that in our submissions. Moreover Mr Beaver's evidence was not about the system in place at Boral but his evidence was that it was his expectation that as at December 2001 planks would have been in place and that the cornice fixer was able to slide the planks back to enable him to carry things up the ladder, to pass buckets of water and trestles through a hole created in the planks for that purpose. That was Mr Beaver's expectation and unlike Mr Allsop Mr Beaver had the day to day, face to face exposure to the workplace. 18 Mr Beaver was the defendant's project inspector. Part of his responsibility was to supervise the jobs being carried out by contractors on a daily basis and included responsibility for occupational health and safety. In respect of Lot 207 Mr Beaver carried out an inspection on 14 December 2001 after the plasterers had finished. He was aware a void existed where the staircase was meant to be. In re-examination the following exchange took place between senior counsel for the prosecutor and Mr Beaver: Q. My learned friend was asking you some questions about what you would expect to happen in the ordinary course with the cornice fixer and you said he would take trestles and buckets of water up the ladder and you dropped your voice and I missed the rest. You said he would lift up the buckets and put them on the planks. You said he would leave the ladder downstairs and you said something about sliding something? A. Slide the planks. They slide the planks that are protecting - in the industry we use planks to go into the top plate, on the second level the bottom plate and the planks go into the frame on the bottom plates and across on to the landing. Picture this - in the stair void the planks would go across here from the wall into the frame and they would slide a plank across to enable them to pass up the material on to this landing. Q. When you were answering my learned friend's questions did you have in mind then that the fall floor protecting the planks would go in and the cornice fixer in your expectation would slide the planks back to enable him to pass things - carrying things up the ladder and effectively pass buckets of water and trestles through the planks, the hole he would create in the planks by sliding them back? A. Correct.

Q. And then putting them on the landing upstairs? A. Correct.

Q. Is that what you envisaged the situation would have been in December 2001? A. Well, that is the only way it would have - you would have to do it that way. There is no other way you could do that area without doing that and his - assume his planks they were there so; he has done that on other jobs.

Q. On this particular job on Lot 207 you never saw him working on that job, did you? A. No, I didn't.

Q. If you had seen him not using fall protection planks in the way you described, what would you have done? A. I would have stopped him.

Q. Even at the stage when passing material up to the first floor, if you saw him not using fall protection you would have stopped him? A. If he was passing material up, that is fine, that is the only way to get material up there. I would have stopped him if I knew he was working on the second level, even if he was working in bedroom number 3.

Q. What about walking around on the first floor? A. If he is up there on his ladder just pushing material on to the second landing, that is fine. If I saw him up there without the protection I would have had to stop him doing that.

Q. If he left the ladder on the first floor without protection, regardless of what working he was doing? A. Yes.

Q. Regardless of what he was doing up there? A. Yes.

Q. Earlier you had given answers to my learned friend's questions and I asked you would you have expected in December 2001 the cornice fixer would slide a plank back in order to enable him to pass anything up; is that right? A. That's correct.

Q. Does it follow from that and in your expectation, as at December 2001, even with planking in place, the cornice fixer would have been able to move enough planking in order to get him to pass up the trestle? A. Yes.

Q. Is that the order what you would have expected things to have been done? A. Thereabouts, yes.

19 I note the evidence in the agreed statement of facts that: At Lot 207 Mr Saunders had been accessing the ground floor and the first floor. He had been cutting the cornice on the lower level. There were several pieces of cut cornice on the ground floor and the upper floor. In the main bedroom on the first floor there were buckets of water, unmixed cornice cement, tools and some stools. 20 The import of Mr Beaver's evidence was that he considered that it would be unsafe for any person to be on the first floor of the dwelling under construction without fall protection planks being in place over the stairway void. Mr Beaver considered that it was possible to pass material up to the first floor landing, including trestles, even though planking had been put into place; it was a matter of sliding the planking open in order to have sufficient room to pass up the material and sliding the planking back into place once that had been done. It was Mr Beaver's evidence that he expected planks would have been in place. 21 Mr Allsopp's evidence, on the other hand, was that it would not have been possible for any cornice fixer to pass material up to the first floor having partially planked out the void and it would not have been possible for any cornice fixer to have passed trestles up through any railing that had been in place on the first floor landing. 22 Mr Allsopp was the defendant's national Health, Safety and Environment Manager. His educational qualifications were a bachelor degree in Education, a graduate diploma in occupational health and safety and a master's degree in business administration. His experience in working in the building construction industry was a 15 months' period when he was employed casually as a builders' labourer for a residential domestic builder. 23 Mr Macefield also considered that the presence of handrails would constitute a hindrance to plasterers and cornice fixers. However, Mr Macefield agreed that he did not have any qualifications that he could rely upon to profess a view as to whether or not a hand rail in particular circumstances was safe. 24 Mr Vshivkoff was a fixer/plasterer was asked a number of questions about the method he used for working on the first floor of Lot 207: Q. How did you get that material from the ground floor to the first floor? A. Usually pass it through the opening, like where we put our floor coverings would have been a little access where the ladder would be placed and would have a number of stools for upstairs and downstairs. The larger one would stay downstairs and someone stand on that and pass it up to the guy through the hole.

Q. Is that the hole that was created to take the staircase in the two storey house - you spoke about passing things up through a hole? A. Yes.

Q. What you call a hole, is that the place where the staircase would go? A. Yes.

Q. And so did you at lot 207 pass up bags of plaster and buckets of water and tools through that space? A. Yes.

Q. By standing on your horses or work benches? A. Yes.

Q. And passing them from a person standing on a bench to a person who was upstairs? A. Yes.

Q. And after you passed the material you needed upstairs and you had to work upstairs what did you do about that hole? A. We had planking system, if it was a small void we would have planks; longest plank is 3 metres - anything above that we would call in mobile scaffolds to be put into it; would put planks literally puts a nail down and then off that you put over planks and in between you have formwork, it is about 18 mils thick and that is 100 wide and when you cover that void area - they come in sheet sizes 2.1 and 2.4 metres - you try and space them out so you have a spot for the ladder to get upstairs and downstairs.

Q. Is that what you did in the house at lot 207? A. Yes. 25 The defendant submitted that the method used by Mr Vshivkoff was the safe and correct method. 26 Mr Sutton, Masterbuilt's Construction Manager, had spent many years in the home building industry, having served his carpentry apprenticeship in the early 1960's. His oral evidence in chief included the following: Q. I want you to assume that the cornice fixer was using a ladder, which you have seen in the WorkCover photographs, to lean against the edge of the upper floor, which would be where the staircase would begin or end if the staircase had been fitted? A. I believe that is where the ladder was.

Q. In that regard, would you look at photograph 16 which I show you (Shown), and I want you to assume that the ladder was in the position we see it in photograph 16? A. Okay that is fine.

Q. If a hand rail had been built to cover all that portion of the void except that 1 metre section against which the ladder is resting - do you follow? A. Yes.

Q. If a hand rail had been built over the rest of that void, do you believe, that is, in your professional opinion, that would have created any obstacle to the cornice fixer in moving the cut pieces of cornice from the ground floor to the first floor? A. I don't believe it would have caused any major obstacle. He would have had to pull his cornice through the hand rail or over the hand rail, which he would have overcome quite simply. Q. Again, if such a handrail was in place, do you believe such a handrail would caused any obstruction to him in moving up to the first floor the work horse and buckets that you can see in the photograph taken inside the main bedroom. HATCHER: We don't accept the witness' expertise in relation to handrails and the work of cove fixer. We acknowledge he has sufficient experience as a service work manager and seen people doing that work, but is not an expert to give that evidence. I take that objection but don't ask your Honour not to receive that evidence.

AGIUS: Q. Do you think a handrail in the position I indicated, covering those portions of the void I indicated, would have presented any obstruction to the cornice fixer in moving the materials that you see in the photographs of the main bedroom up to the first floor? A. I don't believe so. I am a carpenter by trade; if I was to put skirting along the first floor it would be the same as putting a piece of cornice up there. I believe it would not cause any problems at all. 27 In candid responses to questions from senior counsel for the prosecutor Mr Beaver considered that it would be unsafe to have any person on the first floor of Lot 207 without fall protection planks in place. Moreover, he considered, such planks would not inhibit the movement of materials from the ground floor to the first floor. Mr Beaver was the defendant's person directly responsible for the work of plasterers and cornice fixers and his responsibility included health and safety. He was required to certify safe working arrangements on a day-to-day basis for the defendant. Mr Nuner indicated in his evidence that it was Mr Beaver's responsibility to ensure that any system that "the contractors used for fall protection around voids was a safe system so far as Boral was concerned". There is no reason why I should not accept Mr Beaver's evidence especially given he was not cross-examined. 28 Mr Sutton, a very experienced manager with a trade background, considered that rails around the perimeter of the void would not have inhibited the movement of materials from the ground floor to the first floor. Mr Allsopp on the other hand, considered that rails and planks were a hindrance and unsafe. Mr Macefield considered that rails constituted a hindrance to work being carried on. 29 I consider the weight of the evidence favours a finding that persons on the first floor of Lot 207 would be at risk of injury in the absence of any fall protection at the staircase void. The perimeter of the void was 3.7 metres; it was a large hole some 2.7 metres above the ground floor concrete slab. In the absence of adequate fall protection there was a risk of injury from falling through the void. Mr Saunders had been accessing the first floor in the absence of fall protection at the void. He was placed at risk of injury. 30 The defendant clearly recognised the risks associated with voids in two-storey houses. Since late 1999 the defendant had been trying to develop a practical method of covering voids to avoid risk of injury to persons working in the upper level. Such a risk must be present from the time a person accesses the first floor level where no fall protection exists at the void. The agreed facts in this case indicated Mr Saunders was alone, he had accessed the first floor, and the clear inference available is that he did so to deposit cornices, cement, tools and stools there as part of his work.

31 I also prefer the evidence of Mr Beaver as the defendant's supervisor directly responsible for the safety of contractors and the very experienced Mr Sutton over that of Mr Allsopp and Mr Macefield that neither planking nor rails constituted a hindrance to the movement of materials. Accordingly, in my opinion, neither rails nor planks constituted the risk claimed by the defendant. Of course, the focus here was on planking and not rails. There is no doubt, in my opinion, that planks were a practicable and effective means of fall protection.

32 Masterbuilt had earlier been prosecuted under s 8(2) of the Act in relation to the incident that occurred at Lot 207 on 15 December 2001: Inspector Gjaltema v Masterbuilt Pty Limited [2004] NSWIRComm 399. In considering the objective seriousness of the offence in that case the Court observed at [12]: 12 Nonetheless, the absence of physical barriers capable of preventing the fall of persons from the first floor onto the concrete floor 2.7 metres below and the failure to provide adequate or proper supervision to ensure that the physical barriers were in place in circumstances where workers were coming and going at all different times, including weekends and working alone, may be considered to be serious omissions on the part of the defendant. The colour photographs of the accident scene show quite starkly the obvious risk of a person falling from the first floor in the area of the void in the absence of any handrails or other physical barriers.

33 Those observations apply with equal force here. Both Masterbuilt and the defendant failed in their duty to ensure there was fall protection in place. The defendant, however, considered that it was not necessary, indeed, unsafe to have planks or rails in place at the time materials were being transferred from the ground floor to the first floor. However, Mr Beaver, who had the direct responsibility for the health and safety of contractors, took the view that in order to ensure the safety of persons on the first floor the void had to be covered once persons accessed the first floor for whatever purpose. 34 It would seem, therefore, in normal circumstances, under Mr Beaver's instruction and supervision the void would have been covered when Mr Saunders accessed the first floor. In order to transfer materials from the ground floor to the first floor a plank or planks would be slid open but the main area of the void would be covered. However, there was a gap in the defendant's system of work because contractors, such as Mr Saunders, were able to access the dwelling under construction on weekends when the construction site was not supervised and in circumstances where the erection of fall protection was left largely to the contractors themselves. In other words, the defendant's system of work did not ensure that when contractors accessed the first floor of Lot 207 the necessary fall protection was put in place. 35 Where contractors, often working alone, are able to access construction sites on weekends when there is no supervision, who are required to transfer material and equipment to an upper floor, often in awkward circumstances, and who are expected to provide their own fall protection, special care needs to be taken by those responsible for ensuring the health and safety of contractors. The system needs to ensure the fall protection is in place before access is gained to the upper floor. That may mean supervision attending the site prior to the contractor commencing work to ensure the contractor erects the fall protection or, alternatively, those responsible for the contractor's health and safety providing adequate fall protection and ensuring that is in place before the upper floor is accessed. 36 In the present case, I note that there was nothing difficult or impracticable about ensuring adequate fall protection was in place. 37 As I noted in Masterbuilt in relation to the likely consequences of a risk to health and safety: The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case, no causal connection has been established between the offence and the death of Mr Saunders. But where a risk is likely to have serious consequences for health and safety the culpability of the offender will usually be greater. In this case it is evident that in the absence of any physical barriers there was a risk of falling from the first floor and the consequences for health and safety were likely to be very serious. 38 As to general deterrence, I take the same view as I did in Masterbuilt, namely: I consider that I should give weight to the need for general deterrence in fixing any penalty. As the Full Bench observed in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71] it would be rare to impose a sentence under the Occupational Health and Safety Act that did not include an element for general deterrence. The construction industry is notoriously dangerous and a high incidence of prosecutions under the Occupational Health and Safety Act emanate from this industry. 39 As for specific deterrence, the defendant is a large enterprise with over 600 employees nationally and continues to operate in the home building industry. But I note from the evidence of Mr Stephen Moore and Mr Allsopp regarding the steps taken by the defendant since the incident to improve its policies and practices relating to workplace safety. Those steps are commendable and included: (1) Research into the design of a generic scaffold system for voids; (2) The strengthening of the defendant's existing Health, Safety and Environment Management System; (3) Continued training; (4) Publication of new posters, Site Risk Assessment Checklists, Snap Audit Forms, and Safety Checklists; (5) The upgrade of the defendant's Subcontract Agreement and related documents. 40 Notwithstanding the defendant's continued involvement in what is an inherently dangerous industry, I consider the defendant takes its responsibilities in respect of occupational health and safety seriously and has taken appropriate remedial action. Accordingly, specific deterrence does not figure prominently in my consideration as to penalty. 41 I note that the maximum penalty in this case is $850,000. This penalty reflects the public expression by Parliament of the seriousness of a breach of this section of the Act: See Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698-699; Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 at 321; WorkCover (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at [23]. 42 An aggravating factor that may be taken into account includes that the offender has a record of previous convictions (s 21A(2)(d) of Crimes (Sentencing Procedure) Act 1999). In this case the defendant has two prior convictions. I note, however, from Mr Moore's evidence, both breaches related to accidents in the defendant's manufacturing plant and were unrelated to the supply and fix business. Prior to the accident involving Mr Saunders there had been no accidents involving falls through stairwell voids on jobs undertaken by the defendant's supply and fix business in NSW. The previous convictions do not suggest a propensity to re-offend. 43 Relevant subjective factors prescribed by s 21A(3) of the Crimes (Sentencing Procedure) Act include: (f) the offender was a person of good character (see also WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 at 454); (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner (see also McDonalds at 429); (k) a plea of guilty by the offender (see also R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418); and, (n) assistance by the offender to law enforcement authorities (see also McDonalds at 429). 44 The defendant may readily be regarded as a good corporate citizen. As to remorse or contrition, there was no expression in this respect for creating the risk of injury and the fact that the defendant maintained its system was safe even after a plea was entered would suggest that there was an absence of any contrition. 45 The defendant's plea of guilty was entered on the second day of the hearing following evidence given by Mr Beaver the previous day. The plea was entered because, as Mr Hatcher submitted, "It is not reasonably practical to have its [the defendant's] supervisor misunderstand its system of work." 46 Undoubtedly the plea, even though it was entered at a late stage, saved some time and expense and, therefore, had a utilitarian value although any discount must be towards the lower end of the scale. I consider an appropriate discount is 12.5 per cent. 47 The prosecutor has accepted that the defendant gave him cooperation during the investigation. 48 I have also had regard to the steps taken by the defendant to strengthen its system of occupational health and safety and this must count in its favour. 49 This is not a case of a defendant having no regard for safety. It had in place measures to protect workers from risk but it had a mistaken view as to the adequacy of arrangements for protecting contractors when they were working in two-storey dwelling construction. That is, the defendant considered there was no need to provide for fall protection to be in place until after material had been transferred from the ground floor to the upper floor and, indeed, held the view that such fall protection was unsafe. Moreover, there was a gap in the defendant's system of work in that there were not adequate supervisory arrangements in place to ensure that fall protection was in place prior to work commencing on the upper floor in all circumstances, including where lone contractors were working on weekends. 50 In Masterbuilt a penalty of $78,000 was imposed. The prosecutor submitted that the defendant should receive a heavier sentence because the maximum penalty here is $825,000 compared to $550,000 in the case of Masterbuilt, that the defendant had possession of the house for the purpose of fixing cornices and that it had contractual and actual authority to control the contractors on site. 51 It seems to me, however, that both Masterbuilt and the defendant had similar obligations to provide fall protection for persons working in Lot 207, although there was clearly a much closer supervisory relationship between the defendant and its plastering contractors than Masterbuilt and the contractors in relation to occupational health and safety. 52 Having regard to all of the circumstances I consider an appropriate penalty in this matter to be $95,000. Orders

53 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered.

The defendant is convicted of the offence as charged.

The defendant is fined an amount of $95,000 with a moiety thereof to the prosecutor.

The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ________________________________

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At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Parties

Cases Cited (8)