Inspector Graeme Aldred v Douglas Charles Crane

Industrial Relations Commission (NSW)|2008-12-04|Before: Haylen J, Mr P

CITATION: Inspector Graeme Aldred v Douglas Charles Crane [2008] NSWIRComm 238

PROSECUTOR: Inspector Graeme Aldred PARTIES: DEFENDANT: Douglas Charles Crane

CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1), s 26(1) - sole director and shareholder pleads guilty to offence as particularised - corporation placed into liquidation - group of companies engaged in specialised formwork in building industry - experienced formworker falls through void while laying formwork panels - serious ongoing injury - safety system not enforced - failure to protect employees working at height - fall of 2.7 metres - serious breach established - general and specific deterrence - discount for early plea - no prior convictions - penalty imposed

HEARING DATES: 4 December 2008 EXTEMPORE JUDGMENT DATE: 4 December 2008

PROSECUTOR: Mr D O'Neil of counsel SOLICITORS: Ms A Wong WorkCover Authority of NSW

DEFENDANT: Mr M Barko of counsel SOLICITORS: Mr P Beazley Beazley Singleton Lawyers

Matter No IRC 1278 of 2008 INSPECTOR GRAEME ALDRED v DOUGLAS CHARLES CRANE Prosecution under s 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2008] NSWIRComm 238

1 In August 2008, Inspector Aldred, an inspector appointed under the provisions of the Occupational Health and Safety Act 2000, commenced proceedings against Douglas Charles Crane alleging a breach of s 8(1) of the Occupational Health and Safety Act by operation of s 26(1) of that Act. Mr Crane was the sole director and shareholder of Oakdale Formwork Pty Limited ("Oakdale"). At the relevant time that company was undertaking formwork at a construction site in Ridge Street, Merewether.

2 On 10 August 2006 an employee of the company, Mr Vinko Skara, whilst performing formwork at the site, fell approximately 2.7 metres through a void in the formwork boards. Mr Skara fell on to a concrete floor and received serious injuries including head and rib injuries, a fractured skull, brain haemorrhage, facial fractures, indented skull, hearing damage to his left ear and damage to his left eye.

3 Mr Skara was a formworker and carpenter and had been engaged in this line of work since approximately 1969. He commenced employment with Oakdale in 2002 and was considered by the company to be very experienced in this class of work. On 10 August 2006 he had been sent to the Ridge Street site to complete temporary formwork partially completed a week earlier by another person. The particulars of the breach alleged against Mr Crane were essentially these: (a) the corporation, Oakdale, failed to ensure there was adequate fall protection in place to ensure the health and safety of employees undertaking work on the first level of the building under construction at the premises; (b) the corporation failed to provide a safe system of work with respect to work at heights and the defendant failed to ensure persons working on the premises were provided with and/or were using an adequate fall prevention system while working at heights; (c) the corporation failed to provide adequate information and instruction to persons undertaking work at the premises in relation to the performance of work at heights; and, (d) the corporation failed to provide adequate supervision to persons undertaking work at the premises in relation to performance of working at heights.

4 It might be noted at this point that the work at the site involved the erection of two home units. During the course of the hearing the particulars were clarified. The thrust of the case against Mr Crane is the failure to ensure that the joists on the floor to which the formwork was being attached were close enough together so that a person laying the formwork, such as Mr Skara, could not fall through them or, if they were further apart, there was a failure to provide fall protection by way of a catch platform or some similar safety device. There was a need and a failure to provide specific safe work method statements and job safety analysis and to have those presented to Mr Skara and to ensure that he followed those directions and performed the work safely. There was a failure to adequately supervise Mr Skara in the work and in particular, Mr Brewer, the supervisor, was unaware of the work being undertaken by Mr Skara and therefore Mr Skara was not appropriately supervised. In the performance of the work the usual system was that the formworker would place the formwork panels in front of the worker and work forward. That system was not followed and that system was not enforced. Those matters constituted the essence of the offence.

5 At the second mention of this matter before the Court and after all the prosecutor's brief had been served, Mr Crane entered a plea of guilty. This judgment deals with the evidence and submissions regarding the appropriate penalty to be imposed for the breach as particularised. The Court is satisfied that the breach as alleged has been made out by the prosecutor and having determined to convict Mr Crane, the Court has accepted into evidence the victim's impact statement prepared by Mr Skara. I will return to that document shortly.

6 The prosecution evidence was constituted by the following material: an Agreed Statement of Facts; a number of photographs of the site including the setting of the joists where Mr Skara was performing his work when he fell through the void to the concrete floor below; a factual inspection report; copies of safe work method statements prepared by Oakdale in relation to this work; job safety analysis documents prepared by Oakdale; a copy of the Oakdale Group site safety induction pocket book; a copy of the WorkCover Serious Incident Form; a copy of a prohibition notice issued in relation to this incident; copies of the Formwork Code of Practice 1998 and the Formwork Hazard Profile 2001; an ASIC current and historical extract; and, finally, a certificate to the effect that the defendant had no prior convictions. During the course of the hearing additional documents were tendered, being a job safety analysis form in 2007 in relation to another site operated by Oakdale and an Oakdale methodology statement dealing with conventional formwork. Together with the victim's impact statement those documents constituted the evidence for the prosecutor. The Agreed Statement of Facts will appear as an annexure to this judgment. 7 For the defendant, the evidence was constituted by a statement adopted on oath and prepared by Mr Crane. That document had a number of annexures and they were referred to and explained in the course of that document. In Mr Crane's evidence he spoke of the background to Oakdale and the circumstances leading to the company being placed into liquidation. He spoke of being a formworker for twenty years and that he had developed the table formwork system and he had been using that system successfully since 1993.

8 In relation to the Oakdale group of companies, he noted that Oakdale Sydney Pty Limited performed work in Sydney. Oakdale Newcastle Pty Limited performed work in Newcastle, Oakdale Queensland Pty Limited performed work in Queensland and Oakdale Building Services Pty Limited provided the other companies with managerial, supervisory and design services. He said that the Oakdale Group employed 163 people and specialised in formwork. Those workers were usually labourers or carpenters, although some steel fitters and concreters were also employed. In relation to Oakdale Formwork Pty Limited, that company had been in existence for approximately seven years and on average the number of employees engaged during that period ranged between 100 and 120. It is clear from this evidence that Oakdale was a significant employer in what might be regarded as a hazardous industry.

9 Mr Crane gave evidence that he employed Mr Sinclair as an occupational health and safety officer from 1996 in a full-time role. He was replaced in 2007. Mr Crane described the number of jobs completed by the group and gave some details about those matters, signifying a substantial operation.

10 Mr Skara had commenced work with Oakdale late in 2002. His employment was terminated in June 2007. His employment records indicated that he had worked on a large number of jobs over some twenty-three projects that had been administered by ten different builders. Mr Crane regarded Mr Skara as an experienced formworker/carpenter and gave details of his qualifications.

11 A description was given of the work upon which Mr Skara was engaged at the time of the accident and in oral evidence it became clear that an approved method of performing this work of nailing down the plywood on to the beams was to work in a forward direction. It appeared from the photographs in evidence that Mr Skara was in fact working backwards, contrary to the normal safety system adopted by the company. There were observations made about the inability of using a safety harness because of the nature of this work but as clarified in the evidence, it was accepted that there were other failures as referred to earlier.

12 Mr Crane spoke of his practice on every job of having a work method statement, to employ people with green cards, to have site induction meetings and also during the course of evidence spoke about tool box meetings as part of the company's usual operation. Mr Skara, contrary to the usual practice, had not signed the work method statement for this site and the agreed statement of facts appears to accept that it may have been a wider omission. Mr Crane was not able to explain that omission but readily took responsibility for it. He said that when he became aware of the accident on 10 August 2006 he instructed the foreman to call a tool box meeting and to reinforce safety issues on the site and he also directed that an audit of records be conducted to ensure that everybody else on site had completed the required paperwork.

13 Mr Crane spoke generally of his approach to safety as an employer and his responsibility in that regard and how important it was to his method of operation and that of his company. Oakdale workers underwent a minimum general construction induction, a safe work method statement induction and training and site specific training. Since April 2007 a number of employees had completed a Formwork Certificate of Competency and others had undertaken forklift assessments. A small number of employees had completed the confined space full course and a larger number of employees had completed confined awareness training. A small number of employees had completed supervisory risk management courses and fifteen or so employees had complete Certificate II of General Construction. He noted that currently the Oakdale Group employed twenty-one apprentices.

14 Mr Crane spoke of his company's intention to introduce further education especially in relation to safety under the Oakdale induction course and he referred to some aspects of that proposal, including the use of a DVD. He spoke of his reputation in the industry and that he was greatly upset and concerned by the accident involving Mr Skara. He described his feelings of concern on hearing of the accident. He visited Mr Skara in hospital and spoke of enjoying a good relationship with most of his men, especially those who had been with him for a long time, such as Mr Skara. He had read Mr Skara's victims impact statement and expressed his sorrow that he had sustained the range of injuries that were spoken of in that document. 15 Against that evidence the Court comes to the task of imposing a penalty in this matter. The maximum fine is $55,000. The first task is to assess the objective seriousness of the offence. In the building industry one of the well known risks is the risk of falling. Falls over two metres in particular come before this Court, unfortunately, on a regular basis and work at heights is the subject of directions under codes, standards and the usual type of safety statements used by employers in this industry. Here the company had a developed safety system. It had instructions about performing work at heights and the measures to be taken and the supervision that should attend those measures. Those provisions clearly were not observed at the site on the day Mr Skara fell to the concrete floor below where he was working. The injuries have already been described and they are set out in the Agreed Statement of Facts and show that the risk was one where it could be expected that a fall from this height would result in quite serious injuries. The victim's impact statement gives some indication of the continuing nature of those injuries. I accept the prosecutor's submission that these injuries could have been even more serious and on that material the Court can readily accept that this was a serious breach of the Act. That finding is underlined by the fact that the documentation in evidence shows that the risk was in fact foreseen. Though steps were taken, having identified that risk, to lay down methods for protecting against the risk they were not fully implemented. The risk of course, as already indicated, is documented in the industry codes of practice and like documents. The prosecutor fairly accepted that the risk was able to be addressed but in the circumstances of this particular site other considerations came to the fore and it may not have been quite as readily addressed as is often the case in other circumstances.

16 Next, consideration needs to be given to general and specific deterrence. There is no submission in this case that general deterrence has no role to play and of course it will have an important role having regard to the nature of the industry in which this accident occurred. Similarly there is no suggestion that specific deterrence should not play a role and it will form part of the assessment of the appropriate penalty.

17 In relation to subjective factors, it was accepted by the prosecutor, and the Court accepts, that here an early plea was entered. Considering the circumstances in which that plea was entered, it is appropriate that a discount of twenty-five per cent be allowed. It is appropriate to take into account the fact that there were well developed safety systems in place; that the risk was promptly addressed after the accident; and, that although there were omissions that led to this serious breach, this is not a case where there was a lack of attention to safety in the usual work system of the employer. The record shows no prior convictions. That has to be considered as a good record having regard both to the nature of the industry in which the company and Mr Crane operate and also having regard to the fact that both the company and the Oakdale Group appear to have been, over a long period of time, the employer of a significant number of workers.

18 It was accepted that there was co-operation with the WorkCover investigation and that is an important consideration. The prosecutor accepts that the defendant demonstrated contrition. Evidence of that is shown in the fact of the early plea and consideration given to Mr Skara and the prompt steps to review the system and to take steps to improve the system of safety. All those matters will be taken into account in assessing the penalty and the mitigation of that penalty.

19 The Court acknowledges the Victims Impact Statement prepared by Mr Skara. It serves the useful purpose of establishing the consequences of criminal actions and allows the Court to be appraised of the reality of post incident life and the way it is affected by workplace injuries. Mr Skara's statement talks of his heritage as a member of the Croatian community with devotion to his family and how that has been affected and how he sees himself as being a severely reduced person and not being the same man. Those matters are taken into consideration accordingly.

20 Having regard to those matters, and having regard to the submissions made by the parties, the Court makes the following orders:

The defendant, Douglas Charles Crane, is convicted of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by operation of s 26(1), as particularised in matter No IRC 1278 of 2008, to which he has entered a plea of guilty.
The defendant is fined the sum of $9,500 with half that sum to be paid to the prosecutor by way of moiety.
The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

At all material times the Prosecutor was an Inspector 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 Act to institute proceedings in the within matter.
At all material times Douglas Charles Crane of 30A Rowan Crescent, Merewether in the State of New South Wales ("the defendant) was a director of a corporation, A.C.N. 082 385 528 Pty Limited (formerly Oakdale Formwork Pty Limited) (ACN 082 385 528) whose registered office is situated at Beazley Singleton Lawyers, 370 Pitt Street, Sydney, in the State of New South Wales (currently under external administration) ("Oakdale").
At all material times Oakdale undertook the business of constructing formwork. Oakdale was registered with ASIC on 14 February 2001 and was placed under external administration on 30 July 2007.
At all material times the defendant was the sole director and shareholder of Oakdale. Oakdale was part of a group of companies known as the Oakdale Group owned and operated by the defendant.
At all material times Oakdale was an employer. Vinko Skara was employed by Oakdale as a formwork/carpenter on a permanent basis. He commenced employment with Oakdale in 2002 and is the holder of a New South Wales Certificate of Competency No. 03812 for Tradespersons Restricted Carpenters Falsework and Formwork and dated 15 December 1988. Mr Skara has been performing formwork since 1969 with the exception of a three year break.
On 10 August 2006 Oakdale employees were undertaking formwork at a construction site located at 63 Ridge Street, Merewether, New South Wales ("the premises"). Two residential townhouses were being constructed on the site.
The premises were owned by the defendant, Mrs Kaye Crane, Mr John Mowatt and Ms Phyllis Mowatt. A development application to build the townhouses on the site was made by the owners to Newcastle Council in March 2005.
During the period of construction at the premises a sign was displayed on the fence adjacent to the entrance to the premises depicting the words "OAKDALE GROUP CONSTRUCTION SITE NO ENTRY". Workers from various Oakdale Group companies undertook work at the premises. The site supervisor, Mr Michael Brewer was employed by Oakdale Building Services Pty Ltd.
On 8 August 2006, Mr Roy Gardner, a site supervisor for Oakdale, directed Mr Skara to attend the Ridge Street, Merewether site to complete some temporary formwork that had been erected approximately one week earlier by a person identified as Scott Lennox.
On 10 August 2006, Mr Skara was undertaking formwork at the premises. Mr Skara was working on a leading edge of level one (also referred to as the formwork deck) (being the uncompleted roof of the garage of one of the town houses under construction) at a height of approximately 2.7 metres, above a concrete garage floor. The formwork deck measured approximately 3.6 metres long and approximately 4.8 metres wide. Access to the formwork deck was provided by an aluminium extension ladder positioned at the southern end. The ladder was secured to the formwork. In the south west corner formwork bearers and joists were not lined with formwork ply in an area measuring approximately 1.88m x 3.5m. There were no handrails in place on the formwork deck or other means of fall protection. It was part of Mr Skara's job to install the handrails. The construction had not reached the stage requiring installation of handrails. There was some formwork plywood in place on the formwork deck, which was in the process of being secured by nails to the joists.
Mr Skara had climbed up the ladder to the deck to remove plywood and re-position and secure timbers and replace the plywood. Mr Skara was not wearing a safety harness. Whilst Mr Skara was working on the deck he fell to the concrete floor below through a gap in the formwork. Mr Skara does not recall the exact position from which he fell.
Mr Todd Brown, an apprentice carpenter employed by Oakdale Group, who was undertaking work at the premises observed Mr Skara falling (he did not see him trip). Mr Brown had observed Mr Skara working on the deck at what he considered to be approximately three metres high prior to the incident. He did not observe any handrails or other means to prevent workers falling from heights on the landing that Mr Skara was working upon.
As the result of the incident, Mr Skara suffered head and rib injuries, fractured skull, brain haemorrhage, facial fractures, indented skull, hearing damage to left ear and damage to left eye. Mr Skara had not returned the work at the time of his interview in October 2006.
At the time of the incident no fall protection was in place upon the formwork deck either at its perimeter or around the various gaps in the formwork and unsecured plywood. Mr Skara was not supplied with a fall arrest system such as safety harness or instructed to wear a safety harness whilst working on the formwork deck. No scaffold was in place for Mr Skara to work from. Neither were any catch platforms in place. Oakdale was aware of the safety requirements for work at heights, the Oakdale Group Site Safety Induction Pocketbook states in part that "any worker who has to perform work above 1.8 metres must work off a scaffold or elevated work platform (scissor or boom lift), or use a fall arrest system (safety harness).
Clause 56 of the Occupational Health and Safety Regulations 2001 sets out a hierarchy of controls in relation to the risks associated with falls from heights. It requires, in descending order, the provision and maintenance of a stable and securely fenced work platform or secure perimeter screens, fencing, handrails or other forms of physical restraint that are capable of arresting the fall of a person from height.
Oakdale had a Safe Work Method Statement ("SWMS") dated July 2006 for work at the premises which required fall protection to be provided for work at heights over 2 metres. The SWMS required temporary hand rails to be installed on the deck. Mr Skara had not seen this document at the time of the incident.
Job Safety Analysis ("JSA") documents dated July 2006 had been prepared for the premises in relation to manual handling, placement of concrete and for the use of power tools. The JSA for placement of concrete refers to the risk of falls and also notes workers are to wear appropriate PPE. Workers at the premises to whom these JSA's were relevant were required to sign a document that confirmed they had read the JSA's. Mr Skara had not signed that he had read these documents.
At the time of the incident the site supervisor, Mr Brewer, was unaware of the work Mr Skara was undertaking or that Mr Skara was working upon the formwork decking. Mr Brewer was unable to recall whether there were any inspections made of the work site to ensure that fall protection was provided for form workers on the landing.
A consultant to the Defendant's business, Mr Len Sinclair, who dealt with all areas of human resources including occupational health and safety, noted in reference to Mr Skara that "the wearing of harnesses or the education is difficult to get across to the older blokes in the industry".
Following the incident, Mr Crane went through the risk assessment and Safe Work Method Statement with Mr Sinclair and Mr Brewer and had a toolbox meeting with the workers to ensure that the work was carried out as per the Safe Work Method Statement.
In addition, Mr Crane has spoken to Mr Sinclair and informed him to be more vigorous with toolbox meetings in getting across to the workers that they have to adhere to the Safe Work Method Statements.
The following supporting documentation is annexed: (a) 13 Colour photographs taken by Inspector Dall on 10 August 2006; (b) Factual Inspection Report of Inspector Dall dated 10 May 2007; (c) Safe Work Method Statement No. 1 dated July 2006; (d) Safe Work Method Statement No. 7 dated July 2006; (e) Job Safety Analysis numbers 8, 9, 12 and sign of sheet; (f) Oakdale Group Site Safety Induction Pocketbook; (g) Oakdale Accident / Incident Investigation Report dated 10 August 2006; (h) WorkCover Authority of NSW Prohibition Notice, dated 10 August 2006; (i) WorkCover NSW Formwork Code of Practice 1998; (j) WorkCover NSW Identification Tool for Formwork (Hazard Profile 2001); (k) Company Search of ACN 082 385 528 Pty Ltd, previously known as Oakdale Formwork Pty Ltd, printed 24 April 2008; (l) WorkCover Prior Convictions Certificate.

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