Inspector Gjaltema v Masterbuilt Pty Limited

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

INSPECTOR GJALTEMA v MASTERBUILT PTY LIMITED Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2004] NSWIRComm 399

1 Masterbuilt Pty Ltd ("the defendant") carried on the business of a builder. In December 2001 the defendant was the principal contractor for 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 the defendant and consisting of 11 homes being built by the defendant.

2 Sydney 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 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 In the application for order it was alleged that the defendant failed to: [E]nsure that persons not in its employment, and in particular Sydney Saunders (also known as David Saunders), were not exposed to risks to their health and 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. In particular 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 at 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; As a result of the said failures Sydney Saunders (also known as David Saunders) was placed at risk of injury.

6 The evidence tendered in the proceedings by the prosecutor was: (a) An agreed statement of facts. (b) A factual inspection report completed by Inspector Michael Kent on 19 March 2002. (c) 18 colour photographs of the accident scene. (d) A report and colour photographs relating to tests done on a multipurpose ladder being the ladder from which it was believed Mr Saunders fell. (e) A certificate showing the defendant has no relevant prior convictions.

7 The evidence tendered by the defendant was an affidavit by Rodney Edmund Long, managing director of the defendant and Arthur Ernest Sutton, construction manager, employed by the defendant. Neither Mr Long nor Mr Sutton were required for cross examination.

8 It is unnecessary to recite all of the detailed information from the agreed statement of facts. The following matters are, however, pertinent: 21 Mr Saunders attended Lot 207 on Saturday, 15 December 2001 to set the cornices. 22 Contractors were not prohibited from working on weekends. 23 Mr Saunders was required to work on both the ground floor and first floor of Lot 207 and in every room of Lot 207 to fix the cornices. 24 At about 2.30pm Anna Brzeska, a 13 year old girl, was riding her bike past the Site. She entered Lot 207 and saw Mr Saunders lying unconscious in the stairwell on the ground floor. He was breathing and she attempted to wake him before running for assistance. 25 Mr Lyle Erskine came to her assistance. Mr Erskine saw Mr Saunders lying across the stairwell between two walls. Mr Erskine arranged for his wife to call an ambulance. While waiting for the ambulance Mr Erskine moved cornice material which was stacked up in the stairwell and also some broken cornice which was laying under Mr Saunders. 26 Mr Erskine saw a ladder up against the wall on the right hand side against the first floor. He saw a footprint on top of the low wall and also some plasterboard broken away next to the foot print. He also saw a dark brown mark on the wall opposite the low wall approximately 1500mm up the wall. 27 Mr Saunders was taken to hospital and later died from his injuries. 28 At post mortem report found that Mr Saunders suffered a fractured skull. The direct cause of death was blunt force head injury. 29 Although no-one witnessed the incident it would appear that Mr Saunders fell from the ladder leading to the first floor. 30 Senior Constable Glen Merrett attended Lot 207 on Sunday, 16 December 2001. He observed a black scuffmark, possibly from a shoe, in an arc on the wall. It started 4 feet above the floor, vertical and was a quarter circle over to the horizontal. 31 Mr Sutton attended the Site after the accident. Mr Sutton observed the following: (a) there were several pieces of cut cornice on the ground floor and the upper floor; (b) in the main bedroom on the first floor there were buckets of water, cornice cement, tools and some stools 32 From Mr Sutton's observations he concluded that Mr Saunders had been working on the ground floor and the first floor at Lot 207. He had been cutting the cornice of the lower level. Mr Saunders did not commence work at Lot 208. 33 On 17 December 2001 Inspector Michael Kent of the WorkCover Authority, attended the Site. He observed several buildings under construction and a sign affixed to a building with the following information: Masterbuilt Lot 207 9651 3299 Builders Licence 41831 PO Box 229 Round Corner NSW 2158 34 The building was a two storey single unit dwelling under construction. On three sides of the building was scaffolding. 35 Inspector Kent 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 it; (f) the raking gyprock partition wall appeared to be constructed with timber and lined with gyprock; (g) there were several dry dark red marks on the concrete slab near the raking gyprock partition wall; and (h) 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. 36 On 18 December 2001 Inspector Kent again visited Lot 207. 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. 37 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. 38 At the time of the accident there was no system of fall protection or prevention in place at Lot 207. There were 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. 39 Immediately following the incident the Defendant issued a directive that all work on two storey sites that did not have fall restraint systems in place, was to stop until a fall restraint system was installed. 40 Since the accident the Defendant has introduced a procedure whereby when the upper floor is laid a temporary floor is put in place with a ladder provided through a hatch in the floor. This is later removed when the stairs and handrails are installed.

9 I note at the outset the maximum penalty in this case, is $550,000. 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 (NSW) (1998) 87 IR 312 at 321; Page v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at [23].

10 The two failures particularised in the offence charged were a failure 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 and a failure 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.

11 It is important to note that it was not alleged the failures to which the defendant has pleaded guilty actually created the risk that led to the death of Mr Saunders. No person witnessed the accident and the consensus was that Mr Saunders appeared to have fallen from the ladder leading from the ground floor to the first floor of the home under construction.

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.

13 When there is a risk to safety that was both reasonably foreseeable and obvious this adds to the overall seriousness of the offence (see WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 at 452; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 at 267).

14 The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the objective seriousness of the offence. Such steps were available to the defendant and they included implementation of a system of fall protection by installing hand rails or safety fences or other forms of physical barriers to prevent persons falling and ensuring that such fall protection was installed prior to persons commencing work at the premises. I note that following the offence the defendant: (a) issued a directive that all work on two storey sites that did not have fall restraint systems in place was to stop until a fall restraint system was installed; (b) immediately following the incident installed temporary handrails to all stairwell voids on its sites; (c) introduced a procedure that when the upper floor is laid a temporary floor is put in place with a ladder provided through a hatch in the floor. All of these steps were available to be taken prior to the offence occurring.

15 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.

16 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.

17 As for specific deterrence, the defendant has no prior convictions and has been operating since 1989. Further, I am satisfied on the evidence of Mr Long and Mr Sutton the defendant has taken appropriate measures to avoid a re-occurrence of the offence. I note, however, the defendant continues to operate its business and it is appropriate to reinforce the need for constant vigilance to ensure the health and safety of workers. I have included an element in the penalty for specific deterrence but it is not significant.

18 There are a number of subjective factors to be taken into account in mitigation. I accept that the defendant's guilty plea was made early and, therefore, any penalty should be discounted by 25 per cent for the utilitarian value of the early plea. I also accept the defendant's evidence that it cooperated fully with the WorkCover Authority in the investigation of the offence. The defendant has taken steps to avoid a re-occurrence of the offence and has, more broadly, taken steps to implement appropriate safety systems and procedures across its business. The defendant also expressed contrition. Having regard to these matters the penalty should be discounted by a further 10 per cent bringing the total discount to 35 per cent.

Orders 19 The Court makes the following orders:

1. The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $80,000 with a moiety thereof to the prosecutor. 4) 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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