Inspector Green v Boxer Engineering / Inspector Green v Keith Bloodsworth

Inspector Green v Boxer Engineering / Inspector Green v Keith Bloodsworth - [2003] NSWIRComm 271 - NSWIRComm 1994 case summary — Zoe

SECOND DEFENDANT Keith Frederick Bloodsworth FILE NUMBER: IRC 1001 & 1008 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health & Safety - Prosecutions under section 16(1) and 50(1) of the Occupational Health and Safety Act - Worker sustained serious leg injuries when work platform he was riding on became detached from its tracks whilst being lifted by crane - Plea of guilty - Corporate defendant alter ego of personal defendant - Whether s10 of Crimes (Sentencing Procedure) Act applicable - Consistency in sentencing - Offences proven - Penalties imposed. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Victims Compensation Act 1996 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Fisher v Samaras Industries Pty Ltd. (1996) 82 IR 384 Independent Cargo & Wool Services Pty Ltd v Inspector Paul Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994) at pg 4 Inspector Green v Heinrich Constructions Pty Limited [2003] NSWIRComm 199 Inspector Green v Barclay Mowlem Construction [2003] NSWIRComm 197 Inspector Roy Thomas Milligan v Roads & Traffic Authority (Industrial Court of New South Wales, Unreported, 29 August 1996 per Fisher J) Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector James Swee Ch'ng) (1999) 90 IR 464 CASES CITED : R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Sharma (2002) 54 NSWLR 300 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (2002) 115 IR 78 WorkCover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Limited (2001) 110 IR 469 WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd (2000) 99 IR 163 WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty. Ltd. (No 2) (2001) 109 IR 347 WorkCover Authority of NSW v Waugh & Thora Sawmilling Pty Limited (1995) 59 IR 89 WorkCover v State Rail Authority of NSW (2002) 115 IR 130 HEARING DATES: 07/29/2003 DATE OF JUDGMENT: 09/16/2003

[50]

12 Mr Bloodsworth also gave details of the first defendant's involvement with the Rockdale site. In his affidavit it was said: Boxer was retained by Heinrich to prepare the drawings for the affixing of the Climbtrac system to Tower C at 3 Keates Avenue, Rockdale ("the Rockdale site"). I attended at the Rockdale site and inspected the Climbtrac system prior to its been erected on Tower C. I again attended on 22 February 2000 and inspected the Climbtrac system to ensure that it had been erected on Tower C in accordance with the drawings that Boxer had prepared. On 23 February 2000 I sent a certificate to Heinrich, a copy of which annexed and marked with the letter " H ". In that certificate, I certified that the Climbtrac system had been erected in accordance with the specifications and that the shutters were adequate to support the loads that would be imposed on them during the concrete pour. This certificate only related to Tower C because that was the only tower on the site. On 23 February 2000 at the same time as I sent the certificate to Heinrich I also sent a site instruction indicating that a couple of things on the Climbtrac system needed to be fixed up. A copy of the site instruction is annexed and marked with the letter " I ". The remedial work described at paragraph 1 was the installation of rubber flaps over the hole in the platform where the lifting lugs were. This would prevent anything getting caught in the holes. The remedial work described in paragraph 2, required that a rubber flap be installed in the internal part of the Climbtrac system ie that part which is inside the lift core, so that nothing could fall down the lift core past the internal platform. I spoke to Gwynn Owen, the Foreman for Heinrich, about a week before sending out the letter of 13 March 2000. I said to him "There has been an incident in WA and we are now going to put four chains on the system." Gwynn said, "We're okay here, there isn't problem." I said, "Well you should put the four chains on anyway." A couple of days after 13 March 2000 I had a call from Hoss Heinrich (the director of Heinrich Constructions Pty Ltd). It was not unusual to get a call from Hoss, I would get them about every two or three days. We were doing several other jobs with him at the time. He had about three Climbtrac systems operated by Heinrich Constructions at the time. He said to me, "Got your letter. What is it all about and what do we have to do?" I said to him, "You have got to modify the platform frames." I then talked to him about what had happened in Western Australia and why were we doing it. To the best of my recollection, he did not respond to my comments but moved on to discuss some other matter. I had a further conversation with Gwynn Owen on site at about the time Heinrich Constructions commenced the construction of Tower B. It would have been some time after the letter of the 13 March 2000. He said to me, "We want to put some temporary concrete supports on the lower level [referring to Tower B]. We would like you to come and look at that." He then got out some drawings and we discussed the issue. I told him, "It looks okay to me." I was subsequently on site in the period between 13 March 2000 and the date of the accident probably at least twice. These were in relation to the screens that Boxer had designed and had supplied and sold to Heinrich and to view the results of the tests we did on the proposed deck forming system. The deck forming system was a new idea that Boxer was developing to speed up the deck forming system. I was also there advising in relation to a temporary structure over a temporary unit that was constructed on another part of the site near Tower A. While I cannot recall looking at the Climbtrac system, if I had, it would have made no difference because I would have had to have been there when it was being moved to be able to determine whether it was being lifted with two chains or four. It could be lifted with four chains without installation of additional lugs for lifting. This is because when the system is first mounted on a building it is in fact lifted with four chains. When the system was modified it would be moved using the chains attached to the additional lugs.

[51]

13 Mr Bloodsworth's affidavit went on to describe the steps taken by the defendants following the accident, including modifications of the Climbtrac system. The affidavit also addressed the issue of jamming. Mr Bloodsworth said he had never observed an employee of any firm riding the platform when the Climbtrac system was being lifted between floors. Further, he said the alleged problem of jamming because of debris was not a problem that Boxer had previously been aware of and as a consequence enquiries were conducted as to whether it was a problem on any other site. The response to those enquiries was that this was not a problem being experienced elsewhere. Mr Bloodsworth deposed that: A review of the system indicated that jamming because of debris is very unlikely to be a problem as the Climbtrac system has a debris plough on the top of the system to move away any loose concrete when it is being moved. This prevents any debris falling into the tracks which could cause it to jam. If loose concrete were to break off the wall during the climb, it would fall onto the platform or if it did not come loose, the rubber flap attached to the platform would move over the concrete. When the platform moves into the new track this track is clear of any debris because that track has been off the wall. The system can however jam where the tracks have not been affixed in such a way that they are parallel to each other (there is a 10-15mm margin so that the tracks do not have to be perfectly parallel). If the tracks are not parallel, then the system will stop. The procedure is then to stop the system and reset the tracks carefully ensuring that they are parallel. Heinrich never requested that Boxer certify the Climbtrac system in relation to Tower B. Had it done so, Boxer would have required that the additional lifting lugs be installed prior to the system being used on Tower B, and would have required the secondary arrester plates be incorporated into the design. Tower B was slightly different to Tower C in that conventional formwork was required to be used for the initial floors before the Climbtrac system could be installed.

[97]

50 Section 10 of the Crimes (Sentencing Procedure) Act provides that: 10. Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

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Judgment (103 paragraphs)

Cases Cited (15)