Inspector Green v Barclay Mowlem Construction

PROSECUTOR: Mr M Cahill of counsel Solicitor: Mr N A Correy Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr R Reitano of counsel Solicitor: Mr A Korbel Corrs Chambers Westgarth

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR GREEN v BARCLAY MOWLEM CONSTRUCTION PTY LIMITED

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 197 1 The defendant, Barclay Mowlem Construction Pty Limited is a building and engineering company. In September 2000 it was engaged in the development of multi-storey residential apartments in Rockdale, a suburb of Sydney. The defendant had the responsibility for oversight and supervision at the site. The defendant had subcontracted with, amongst others, Heinrich Constructions Pty Limited ("Heinrich") for the provision of formwork at the site, which specifically included the use of the proprietary Climbtrac System.

2 Climbtrac is a formwork system utilised for the construction of vertical formwork surfaces such as lift shafts, stair walls, columns and external perimeter walls on multi-storey buildings. The Climbtrac system is a proprietary jump-form system developed and manufactured by Boxer Engineering Pty Ltd ("Boxer").

3 On 4 September 2000 it was intended that the Climbtrac system be lifted from level 8 to level 9 by crane to form the formwork for the pouring of the walls of the lift shaft core on level 9. Richard Harnett, a formwork carpenter employed by Heinrich, stayed on the platform of the system to free the system if it became jammed during the crane lift. As it was being lifted by the crane, part of the system, including the platform upon which Mr Harnett was standing, became detached from the tracks. Mr Harnett jumped clear by grabbing steel reinforcing bars embedded in the top of the wall of the lift shaft core. As he was hanging from the bars, the platform of the Climbtrac system swung inwards and crushed Mr Harnett's legs against the lift shaft core wall. Mr Harnett suffered broken tibias in both legs.

4 The defendant was prosecuted in relation to the incident on 4 September 2000 pursuant to s 16(1) of the Occupational Health and Safety Act 1983. Section 16(1) provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment 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.

5 In his application for an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 the prosecutor, Inspector Ritchie Green of the WorkCover Authority of New South Wales, alleged that the defendant: [D]id fail to ensure the health, safety and welfare at work of persons not in its employ and in particular Richard Harnett ("the worker"), arising from the conduct of its undertaking, namely the construction oversight and supervision of construction at the site, in that the worker sustained injury whilst he was working atop the Climbtrac Jumpform System ("the Climbtrac System"), when both his legs were broken when they were crushed between platform 6 of the Climbtrac System and the lift core shaft of tower B, contrary to Section 16(1) of the Occupational Health & Safety Act , 1983 in that: (1) The worker rode the platform whilst the Climbtrac System was being lifted into position by a crane. (2) Persons at the site, including the worker, rode the load of the crane contrary safe work method statement prepared by Heinrich Constructions Pty Limited, which according to the defendant's site safety plan, the defendant's supervisors were to assist in enforcing. (3) There was inadequate supervision by defendant of the lifting of the Climbtrac system platforms. (4) There was inadequate training of those persons involved in the lifting of the Climbtrac system platforms and in particular Ian Davies.

6 The defendant pleaded guilty to the charge against it. Heinrich was also prosecuted under s 15(1) of the Act in relation to the same incident. Heinrich pleaded guilty and sentence was passed on Friday 20 June 2003 (see Inspector Green v Heinrich [2003] NSWIRComm199).

7 An agreed statement of facts was tendered by the prosecutor. After describing the Climbtrac system the agreed statement described how Mr Harnett came to be injured on 4 September 2000:

11. By letter dated 23 February 2000 Boxer certified the Climbtrac System as being correctly set up to commence work on Tower C at the site. 12. The Climbtrac System was used at Tower C at the construction site prior to construction of Tower B. 13. By letter of 13 March 2000 Boxer notified Heinrich of specific recommended structural and safety modifications required to the external platforms of the Climbtrac System, including the addition of two additional crane lifting points and secondary arrestor plates. No further action was taken in respect of this letter by either Heinrich or Boxer until subsequent to 4 September 2000. 14. Boxer's recommendations in March 2000 were not bought to the attention of BMCL. The changes recommended by Boxer, if implemented, would have been likely to eliminate the possibility of accidents, in the nature of that of 4 September 2000, occurring. 15. Until 4 September 2000 the construction of Tower B at the site continued with the Climbtree System being operated in the manner described in paragraph 10 above. 16. On 4 September 2000 it was intended that the Climbtrac System be lifted from level 8 to level 9 to form the formwork for the pouring of the walls of the lift shaft core on the said level. 17. On previous occasions at the site when the platforms of the Climbtrac System had been lifted they had been known to jam from time to time. Employees of Heinrich, and in particular Richard Harnett, were in the practice of riding the platform as it was lifted by the crane so as to free any such jams. 18. The Safe Work Method Statement submitted on 23 February 2000 by Heinrich (prepared by Boxer) to the defendant identified the following method at page 27:

Working off Platform "But not riding on platform during lifting". 19. Neither the defendant nor Heinrich enforced this requirement. 20. On 4 September 2000 time had been designated on the hammer head crane located at the site by the defendant for the lifting of the Climbtrac System. 21. An employee of the defendant, Ian Hartmann, was operating the said crane. 22. Another employee of BMCL, Danny Wasson, a dogman, was designated by BMCL to direct the lift. 23. James Magee, the BMCL Safety Officer, identified Ian Davies an employee of Lindales Pty Limited as a certified dogman and asked him to assist in directing the lift with Danny Wasson, as the regular second BMCL dogman was on leave. 24. The two dogmen had been directed by Laurie Tucker, that morning, to report to Tower B to assist with the lifting of the Climbtrac platforms by the Tower B crane. 25. At approximately 10.00am preparation for lifting of the Climbtrac System commenced, with the shutters being moved away from the lift shaft core, and the Climbtrac System tracks being extended. 26. The first stage of the lifting process commenced with the formwork inside the lift shaft core being lifted by the crane. 27. Danny Wasson then directed the lifting of the eastern external platform of the Climbtrac. During the lifting of the platform Danny Wasson's two way radio started to beep indicating that it was going flat. The lift was completed with the eastern external platform being placed safely. 28. There had been a history of the batteries of two way radios at the site going flat during a short period of operation, and there were few back-up batteries. The two way radios were provided at the site by BMCL. 29. BMCL had on a number of occasions requested that Motorola, the manufacturer of the two way radios, attend the site to remedy the defects. Despite these attendances there were still difficulties experienced with the two way radios. 30. The hook of the crane was then removed and attached to the western external platform number 6. 31. Prior to lifting the western external platform number 6 the battery of the two-way radio of Danny Wasson went flat. 32. Ian Davies was requested by Danny Wasson to call the jump of the western external platform. 33. The only crane lift of the Climbtrac system that Ian Davies had carried out prior to this was the lift of the eastern external platform earlier that morning. 34. Richard Harnett was located upon the western external platform number 6, as he had been on the eastern external platform during its lift. 35. Richard Harnett continued to ride the platform whilst it was lifted to ensure the free and unimpeded travel of the external climb frame and flipper components of the platform. 36. When the platform was in the appropriate position to complete being lifted, Ian Davies instructed the crane operator, Ian Hartmann, to stop. The crane continued to lift the platform. 37. Danny Wasson and Ian Davies both then asked for the crane to be stopped again. 38. Danny Wasson shouted this command. 39. The crane operator only heard the final direction to stop and immediately took his hand off the hoisting lever. This stopped the crane continuing to lift. The external platform momentarily stopped before the external platform number 6 became detached from the tracks. 40. The platform then commenced to pivot about the 2 lifting points located at the front of the platform as it was no longer attached to the tracks affixed to the wall of the lift shaft core. 41. Richard Harnett jumped clear to the top of the lift shaft core and caught hold of embedded reo bars in the top of the wall. 42. Whilst Richard Harnett was hanging from the reo bars, as a consequence of the significant rotation of the external platform, the lateral bracing at the bottom of platform crushed his legs between itself and the lift shaft core wall. 43. Danny Wasson who was standing on top of the internal lift box reached out and grabbed Richard Harnett and pulled him up on top of the internal platform. 44. Mr Harnett suffered broken tibias in both legs as a result of the said incident and was unable to attend to his employment for a period in excess of seven days immediately following the incident. 8 Mr M Cahill of counsel for the prosecutor also tendered a factual inspection report by Inspector Green relating to the incident, a bundle of 23 colour photographs showing the worksite and the aftermath of the incident, a single colour photograph showing the internal stairwell access to the level 6 formwork deck on tower B, and the defendant's record of prior convictions showing one prior conviction in 2001 under s 16(1) of the Act which attracted a penalty of $15,000 in the Chief Industrial Magistrate's Court. Another charge under s 15(1) of the Act was proven but no conviction was recorded under s 556A of the Crimes Act 1900.

9 Mr R Reitano of counsel for the defendant tendered an affidavit of Jeffrey Charles Lane, Occupational Health Safety and Environment/Quality for the New South Wales Building Division of the defendant. Mr Lane was not required for cross-examination. Mr Lane's affidavit relevantly addressed the following matters:

· The defendant has operated in Australia for more than 50 years. · The group of companies to which the defendant belongs employs in excess of 1,600 employees which includes about 240 employees in the New South Wales Building Division and there are about 30 contractors. · A brief description of the Climbtrac system and the fact that Heinrich was engaged by the defendant to use the system on the Rockdale site. Further, that lifting of the Climbtrac platforms was undertaken by Heinrich employees, together with the defendant's employees who operated and guided the crane used to lift, or "jump" the platforms. · When the Climbtrac was first installed on the site, Boxer Engineering certified that Heinrich had assembled the system in accordance with specifications. · A brief description of the accident on 4 September 2000. · A statement that the accident would not have occurred if any of the following had not happened: (a) the platform was not raised by the crane beyond the top of the guide-rails attaching it to the building core;

(b) the Climbtrac platform was not unstable after becoming separated from the guide-rails; or

(c) the worker in question was not riding the platform as it was raised. · Reference to the letter to Heinrich from Boxer recommending modifications to the Climbtrac system. · Changes made to the Climbtrac procedures and equipment after the accident. · The safety regime in place throughout the defendant's organisation and at Rockdale Gardens at the time of, and following, the accident. · An expression of regret for the injuries caused to Mr Harnett. An opinion that it is most unlikely that an accident of this type would occur again on a site operated by the defendant.

10 In considering, first and foremost the objective seriousness of the offence charged, the evidence shows that the defendant was aware of the need to prohibit workers from riding on the work platforms of the Climbtrac system whilst they were being "jumped" into position. In fact the Safe Work Method Statement that the defendant required of Heinrich and which was submitted on 23 February 2000, identified the following method in relation to the use of the Climbtrac system: Working off Platform But not riding on platform during lifting.

11 Moreover, riding the platform during the lift was prohibited by clause 127(108) of the Construction Safety Regulation 1950 and par 108A provides: 108A The owner or person in charge of any crane or hoist (other than a hoist conforming to paragraph (66)) must not authorise any person to ride the load, platform, box or other lifting medium of the crane unless the owner or the person in charge does so in accordance with the written authority given by the WorkCover Authority.

12 Due to the platforms becoming jammed in the course of a number of previous "jumps", an informal practice had developed which involved workers, such as Mr Harnett, riding on the platforms whilst they were being jumped into position so that any jams could be released whilst the lift continued. Mr Wasson and Mr Davies, dogmen employed by the defendant and Mr Hartmann, the crane driver employed by the defendant, were all aware of the informal practice of riding on the platforms. It follows, as Mr M Cahill of counsel for the prosecutor submitted, "that the defendant had control of the crane and was responsible for its use in lifting the platform into place, as well as providing the radio communications equipment used to control the lift." Mr Wasson and Mr Davies were aware that Mr Hartnett was riding on the platform at the time of the incident.

13 This is yet another example of a system design to avoid risks to health and safety not being properly implemented. There is little point in the principal contractor requiring its sub-contractors to submit safe work method statements if they are merely filed in the bottom drawer, so to speak. The defendant should have been aware of the dangerous practice of riding on the Climbtrac platform as it was being lifted by crane; it was not an isolated breach of the safe work method and Construction Safety Regulation. This could have been achieved by the defendant by more appropriate supervision and training of not only its own employees but also employees of sub-contractors. It is a matter of particular concern that two certified dogmen and a crane driver employed by the defendant were aware of the practice of riding on the platform but apparently took no action to stop it.

14 As to foreseeability, the risks to safety of workers riding on platforms not designed to carry passengers was evident to the defendant - it had submitted to it a safe work method statement prohibiting such a practice. Moreover, as I observed in Heinrich at pars 17 and 18: The other failures by the defendant were the failure to provide and maintain the Climbtrac system in a condition that was safe and without risk. As the accident on 4 September 2000 demonstrated, if the platform was lifted too high it would become detached from its tracks affixed to the wall of the lift shaft core and then pivot in midair. The manufacturer, Boxer Engineering, had apparently earlier recognised the need for additional lifting points to prevent pivoting and the need for secondary arrestor plates for greater "overtravel" control and had passed on its recommendations to the defendant to modify the system accordingly. In relation to the failure to modify I accept Mr Heinrich's evidence that if he had been made aware of the modifications he would have immediately implemented them. However, it seems to me that if the platform could come free of its tracks if a crane lifted it too far - an eventuality that, in my opinion, was reasonably foreseeable - it represented a serious detriment to safety which should have been obvious not only to the manufacturer but also to the defendant. Steps should have been taken independently by the defendant to remedy the danger, especially in circumstances where it was aware that employees were known to ride on the platform. I note from the evidence that Boxer certified that Heinrich had assembled the Climbtrac system on site in accordance with its specifications and I expect that the defendant believed that given such certification it was entitled to rely on this as representing the system was safe to use. In this respect, however, given the strict liability upon an employer under s 15(1) of the Act it is incumbent on the employer to take steps to ensure that any system such as Climbtrac does not present a risk to health and safety and not to rely solely on someone else's assurance regardless of whether that someone else manufactured the system or is to be regarded as an expert in relation to the system: See Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 at [31].

15 Whilst the defendant in Heinrich may have had a closer connection to the Climbtrac system than the defendant in these proceedings and a higher level of responsibility to ensure it did not present a risk to health and safety it does not follow that Barclay Mowlem had no responsibility. Barclay Mowlem was the principal contractor and had a responsibility for site safety. That carried with it an obligation to satisfy itself that the Climbtrac system was safe even if that meant getting an independent expert opinion about the system, especially given it was, according to Mr Lane's evidence, "a relatively new system for construction of formwork …"

16 In relation to the relevance of the maximum penalty for an offence, Wright J, President observed in Walco Hoist Rentals at 185-186: The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: 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; and Albury City Council at 407 - 408. The maximum penalty in this matter is $825,000.

17 The occurrence of death or serious injury may manifest the degree of seriousness of the risk to safety: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476; WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428-428; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185. In this case Mr Harnett suffered broken tibias in both legs.

18 As to the seriousness of the offence, I make the same finding as I did in Heinrich, namely: I consider that the offence was in the moderately serious range but it was not a case of an employer completely ignoring a known and apparent danger or having no regard to appropriate occupational health and safety standards in the workplace.

19 As to general deterrence I again make the same finding as I did in Heinrich namely: In relation to deterrence, the principles were discussed by a Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. In this connection I take into account that the defendant operates in an inherently dangerous industry and in the construction of high-rise buildings it is an essential part of the building operation to use cranes, hoists and lifting platforms. In setting the level of penalty it is important to ensure it is set at a level that will realistically operate as a deterrent but not so high as to be oppressive. 20 As to specific deterrence, I consider that the defendant has taken prompt, appropriate and comprehensive steps to avoid any further risks associated with the Climbtrac system. I also note the defendant has taken the commendable opportunity to review the whole of its corporate policy regarding occupational health and safety. Despite its relatively recent conviction the defendant has a very good safety record over a long period notwithstanding that it operates in an inherently dangerous industry. Whilst I propose to include an element for specific deterrence in the penalty it will not be substantial.

21 There are a number of subjective factors to be taken into account in sentencing. These factors are: 1. The defendant pleaded guilty at an early stage. 2. The defendant cooperated with the WorkCover Authority in its investigations. 3. The defendant has taken steps to eliminate the particular risks that gave rise to the charge in this matter. 4. The defendant reviewed its corporate policies and programs relating to occupational health and safety following the subject incident. 5. Despite the one conviction the defendant has a good safety record extending over a long period of time.

22 It was submitted by Mr Reitano that the defendant's culpability was less than that of the defendant in Heinrich. This was based on the proposition that Barclay Mowlem "were relying on experts and we were the victim if you like of the circumstances that came about on the day in question…" I have already dealt with this proposition to a significant degree but I would add that the defendant's supervision and control of the site in relation to occupational health and safety was seriously deficient. It had at least three employees who should have acted to stop the practice of riding on the Climbtrac platform. The defendant was responsible for providing a level of supervision and training for those employees such that they would have intervened and either stopped the practice or refused to carry out the lift. I also note that the defendant was responsible for the two way radios used for communications during the crane lift but these were defective. Without proper communications the crane lift should not have proceeded.

23 In the result I consider that the defendant was at least equally culpable as the defendant in Heinrich. However, because of its adverse record the defendant is not entitled to the leniency accorded to the Heinrich defendant.

24 Having regard to the objective seriousness of the offence committed by the defendant, I consider an appropriate penalty to be $85,000 with a discount for the early plea and for other subjective factors of 25 per cent. This results in a fine of $63,750. Orders

25 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 $63,750 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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