Inspector Green v The Crown in the Right of the State of NSW

PROSECUTOR Mr D B O'Neil of counsel Solicitor: Ms DTrembath Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT Mr R Reitano of counsel Solicitor: Mr C Zoppo Sparke Helmore

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Wednesday 24 March 2004

INSPECTOR RITCHIE GREEN v THE CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMERCE, FORMERLY THE DEPARTMENT OF PUBLIC WORKS AND SERVICES)

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 64

1 In 2001 the Crown in the Right of the State of New South Wales in its emanation as the Department of Public Works and Services (now the Department of Commerce) ("the defendant") was the principal contractor on a construction site at Building 28, East Sydney TAFE Campus, Darlinghurst Road, Darlinghurst in the State of New South Wales. The defendant engaged the services of 3D Scaffolding Pty Limited ("3D Scaffolding") to construct a heavy-duty scaffold for the perimeter of the site. Regment Pty Limited ("Regment") had been contracted to cut in situ timber scaffold planks to correct safety hazards in the scaffolding.

2 On 27 February 2001, Gregory Paul, an employee of the defendant, was crossing the timber scaffold planks when the planks subsided. Mr Paul fell about one metre. As a result of this incident, Mr Paul sustained a fracture and anterior dislocation of the peroneal tendon to his left ankle.

3 The defendant was prosecuted by Inspector Ritchie Green ("the prosecutor") of the WorkCover Authority of New South Wales for breach of s 15(1) of the Occupational Health and Safety Act 1983. That section provides: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

4 The amended charge under s 15(1) against the defendant was that the defendant failed to: [E]nsure the health, safety and welfare at work of its employees at the site, in particular Gregory Paul, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. Particulars of the Defendant's breach are: 1. failure to ensure that persons working on or around the scaffolding at the site were not exposed to the risk of falling through the scaffolding; 2. failure to take such steps as to ensure that each of the timber scaffold platforms on which persons were working were safe; 3. failure to ensure a competent person carried out an adequate inspection and risk assessment of each timber scaffold platform after modification, prior to allowing persons to access the scaffold.

5 The defendant pleaded guilty to the charge. The defendant, however, contended there was no failure on its part as alleged in particular 3.

6 An agreed statement of facts was tendered. In so far as its needs to be quoted the statement was in the following terms: 5 At all material times, the Defendant: (a) was the principal contractor of the site and had facilitated the construction of an overhead protective structure ( scaffold ) at the site; (b) had engaged the services of 3D Scaffolding Pty Limited ( 3D Scaffolding ) to construct the heavy duty scaffold for the perimeter of the site; (c) had engaged the services of Regment Pty Limited ( Regment ) to cut in situ timber scaffold planks to correct safety hazards in the scaffolding; (d) employed Gregory Paul ( Mr Paul ) as Team Leader, Stonemason; (e) employed Robert Kavanagh ( Mr Kavanagh ) as Scaffolding Manager at the site. 6 On 7 September 2000, the Defendant contracted with 3D Scaffolding to construct a scaffold to the perimeter of the library building at the site which was of a circular profile. 7 On 11 September 2000, 3D Scaffolding commenced construction of the scaffold. Construction of the scaffold was completed on 28 September 2000. 8 On 28 September 2000, 3D Scaffolding issued a handover certificate to the Defendant. 9 In early December 2000, Mr Kavanagh, identified that the existing timber planks on the scaffold, which were lapped across the gaps between adjacent modular bays, were a trip hazard. The reduced minimum vertical clearance between the scaffold decks of approximately 2 metres created the potential risk that workers wearing hardhats would strike their head onto overhead structures. 10 Mr Kavanagh notified this safety issue to Greg Shuetrumpf, Heritage Services Project Manager ( Mr Shuetrumpf ) of the Defendant. An assessment of the risks of erecting scaffolding on a circular shaped building was undertaken by Mr Kavanagh and Mr Schuetrumpf in approximately December 2000. That risk assessment was not documented. Mr Kavanagh suggested that the safety hazard be addressed by cutting timber infill planks in situ so that the ends of the planks would bear directly onto the scaffold transoms. 11 The Defendant contracted Regment to cut in situ the timber scaffold planks so that they sat directly onto the horizontal lip of the modular scaffold transoms on 3 January 2001. This work was commenced by Anthony Chalita ( Mr Chalita ) and Robert Farah ( Mr Robert Farah ), employees of Regment. The director of Regment, Mr Joseph Farah, visited the site every 2 to 3 days, spending approximately 3 or 4 hours on each visit. 12 Neither Mr Chalita, Mr Robert Farah nor Mr Joseph Farah held relevant certificates of competency in scaffolding. 13 Mr Chalita and Mr Robert Farah were not under the direct supervision of a licensed scaffolder or listed on a logbook overseen by a competent person. 14 On 19 January 2001, Regment completed their work at the site. 15 The appropriate handover certificate for the modifications to the scaffolding carried out by Regment was not obtained by the Defendant before persons were allowed to access the scaffold in order to undertake work at the site. 16 On 27 February 2001, Mr Paul, an employee of the Defendant, and Mr Glen Fuller ( Mr Fuller ), a contractor, were on the radius of the circular scaffold moving in an easterly direction. Mr Fuller was pushing a wheelbarrow. Mr Paul passed Mr Fuller and walked over the third timber infill platform from the stair tower access. 17 As Mr Paul extended his left leg onto the adjacent steel modular scaffold deck, the timber infill platform subsided. Mr Paul fell about 1 metre towards the next scaffolding deck. As he fell Mr Paul grabbed hold of a scaffold tube restraining his fall. The distance between the deck Mr Paul fell from and the deck below was approximately 2.3 metres. 18 As a result of this incident, Mr Paul sustained a fracture and anterior dislocation of the peroneal tendon to his left ankle. 19 After the incident, Mr Paul was unable to return to work until 28 April 2001. For the two weeks following 28 April 2001, Mr Paul was only able to work for 6 hours a day. 20 On 11 May 2001, the Prosecutor attended the site and observed the following: 20.1 A modular perimeter scaffold with chain wire mesh and shadecloth to the outer face of the scaffold. The scaffold was approximately 15 metres in height and circular in profile; 20.2 A scaffold deck to the perimeter of level 1 of the library building, approximately 5 metres above the immediate ground level below; 20.3 Travelling in an easterly direction approximately 8 to 9 metres along the circumference of the scaffold was a section of grey plywood approximately 2.3 metres in length. The plywood was supported at either end by modular bays of scaffolding. To the external edge of the plywood is a timber toe board approximately 240mm in height and 20mm thick; 20.4 Above the toe board were two horizontal steel scaffold tubes, approximately 45mm in diameter. One appeared to be a mid rail tube approximately 500mm above the plywood platform. The second tube appeared to be a handrail and was approximately 1 metre above the plywood platform. Both the handrail and the mid rail were attached at either end to the vertical scaffold standards with 90 degree couplings; 20.5 To either end of the plywood was a five board 1.2 metres wide by 2.4 metres long modular scaffold bay. This configuration of a section of plywood, timber infill bay between two modular steel bays was consistent around the level; 20.6 To the internal side of the scaffold was a horizontal steel tube, approximately 45mm in diameter attached to the scaffold standards, 1 metre above the plywood deck. Either end of the scaffold tube was secured to the standards with 90-degree couplings. 20.7 Protruding to the top of the plywood deck and to the internal side of the scaffold was a green handrail attached to an existing sandstone veranda approximately 1.1 metres below the scaffold platform. 20.8 The grey plywood sheeting forming the timber scaffold platform was approximately 17mm in thickness and is tapered at either end. The plywood is screw fixed to the timber scaffold planks below. 20.9 Approximately 2.3 metres overhead of the plywood work platform was a scaffold deck consisting of five timber planks with a two-board hop up. Each of the seven timber planks were approximately 250mm wide and 50mm in thickness. The ends of each plank were secured in a steel transom or hop up bracket of similar profile. There was plywood blocking to the underside of each end; 20.10 The timber appeared to be Oregon. One timber plank was marked D-Fir-F7. There was some galvanised steel strapping exposed to the base of the timber planks. The steel transoms supporting the timber planks splayed outward toward the outside edge of the scaffold. The internal most plank was approximately 1.35 metres in length to its point of support and the transom. The external most plank was approximately 1.8 metres in length to its point of support at the transom; 20.11 There was another work platform approximately 2.4 metres below; 20.12 To the underside of the grey plywood platform were 4 timber planks, approximately 250mm in width and 50 mm in thickness with one timber, also Oregon in appearance approximately 100mm to the outer edge of the platform; and 20.13 The internal most plank when measured along its outside edge was 1.38 metres long between its point of support at the transoms. The external most plank was approximately 1.83 metres in length when measured along its outside edge to its point of support at a transom. 21 On 21 March 2001 an employee of the Defendant, Mr Peter McRobert, conducted an investigation into the incident and found that: 21.1 the section of the scaffold platform which collapsed was a purpose built, infill section made from timber planking to fit between the scaffold transoms. The section consisted of 5 planks, angle cut to conform to the splayed profile of the supporting scaffold transoms; 21.2 the angle cuts to 2 of the planks were a little more acute than necessary as well as slightly short to render a firm fit. This was compounded by the angle of the fifth plank being cut a little too square allowing this plank to slip past the 90 degree star brackets on the standard; 21.3 the bank of 5 planks moved to the outer edge and allowed the slightly shorter second and third planks to creep off the transom and fall; and as all 5 planks were strapped and nailed together, the whole section fell through the opening to the level below 22 The Defendant cooperated with the Prosecutor throughout the investigation.

7 The prosecutor also tendered: a statement showing the defendant had two previous convictions under the Occupational Health and Safety Act; a bundle of colour photographs showing various aspects of the location where the accident occurred; a further bundle of nine colour photographs of the accident site taken by the prosecutor on 11 May 2001; and, a witness statement of Robert Kavanagh dated 16 July 2001.

8 For the defendant, three affidavits were tendered and read. The deponents were: Greg Philippe, the defendant's general manager, heritage and building services; Greg Schuetrumpf, a project officer employed by the defendant; and, Robert Kavanagh, scaffolding manager employed by the defendant.

9 Mr Philippe was not required for cross-examination. Apart from background information Mr Philippe's affidavit addressed the following matters of relevance: · The defendant's policies, systems and practices relating to occupational health and safety within the heritage and services area. · Occupational health and safety training provided by the defendant including induction training. · Occupational health and safety committees and their structure and operation. · The defendant's contractor pre-qualification panel whereby any contractor being afforded work from the Department must undergo and qualify to be selected on the panel. Criteria includes provision of Site Specific Management Plans and/or Safe Work Method Statements used on a previous project, a contacting of referees and reviewing applications and demonstration of a good track record in OHS management practices. · In major development works (over $3million), or where the nature of the project makes it a high risk project, the condition of the tender requires that a tenderer has an accredited OHS&R Management System under the NSW OHS &R Management System Guidelines (3rd edition). Where such a management system is not required the tenderers are required to provide effective safety management and ensure sub-contractors and consultants, to the contract, provide the same. · Concern has been held regarding the level of compliance by small contractors and sub-contractors. Following the introduction in September 2001 of the new Occupational Health and Safety Act and Regulations, the Heritage and Building Services Group (HABS) within the defendant took the opportunity to hold forums with all contractors on its lists. The forum presentation discussed the new Act and Regulations, guidelines for Safety Management Plans and Safe Work Method Statements. All attendees were provided with a list of WorkCover accredited trainers and consultants. Following the forums attendees were requested to submit their updated Safety Management Plans and sample Safe Work Method Statements for review by HABS. Failure to comply with the request could result in loss of work opportunities within the group. The forum sessions were completed in mid October 2001 with 291 of the 342 invited contractors attending. By January 2002, 126 contractors had submitted the information asked for and upon assessment it was indicated that only 6 contractors complied fully.

10 Mr Schuetrumpf was also not required for cross-examination. His affidavit went to the following matters: · His duties, particularly those relating to occupational health and safety.

· The nature of the work at the site where the accident occurred.

· The process for erecting and inspecting scaffolding on the site. Mr Schuetrumpf said that in the course of one such inspection: I again noticed that the overlapping panels in the splayed sections created a step up of about 50mm. This step up reduced the restricted head height by about 50mm throughout the scaffold and in my view, created an unacceptable trip hazard. I discussed this with Bob Kavanagh at the scaffold. We considered and discussed the potential hazards present at the site, the greater frequency of use of other levels of scaffold as a result of the additional work to be undertaken at the site. We also considered past history of incidents with scaffolding where head height was restricted. We undertook a risk assessment which was designed to identify the dangers associated with the scaffolding. We considered the nature of the risks and methods to address the risks. In our view, the only viable option to address the problem was to cut timbers planks to fill the splayed makeup bays between the modular bays. We looked at how we would undertake the work. Cutting of the planks to the precise length and angle required a certain degree of skill as well as the appropriate tools. This work, in our view, required the skills and expertise of a carpenter. We believed that there was a greater risk if we involved a scaffolder, so we contracted Regment Pty Ltd. We did not document the risk assessment on the dangers we identified. If the same task was undertaken today there is little doubt the risk assessment would be documented. · Regment's work was inspected and no defects were detected.

· Prior to persons working on the site a safety induction was carried out. With respect to the working on scaffold deck, the possible hazards identified were: UV exposure; falling from heights; tripping. Safety controls apply in respect of this. These hazards were: wear suitable clothing - apply blockout; check scaffold hand rails, kickboards and the general conditions of scaffold; scaffold inspection monthly; keep scaffold free of rubbish plant.

· Prior to undertaking work, each employee is required to have the appropriate Green Card induction, which indicates completion of the Construction Industry and Induction Training Program.

· From 24 January 2001 a weekly safety inspection was undertaken by the Team Leaders. This inspection involved the Team Leader inspecting the site and identifying any safety risks. A checklist was provided as a guide and completed by the site supervisor, on a weekly basis.

· Part of the checklist addressed risks involved in the use of scaffolding. This included consideration of the following questions: (i) are the scaffolds secured against tipping? (ii) are handrails and toe boards in place along the full length of the scaffold? (iii) are the planks secure? (iv) is proper ladder access provided to the scaffold working decks? (v) if scaffold is under erection has a safety barrier been set up near scaffolding base? (vi) are ladders in good order? (vii) do you have any equipment overdue for service? · Inspections were undertaken by Team Leaders with respect to the planks on a weekly basis. The Team Leaders undertaking these inspections did not reveal any defect in terms of the condition of the scaffolding in particular whether the planks were secure.

· Toolbox meetings were carried out at various times with various attendees between Project Manager, Site Supervisor, Team Leaders and workers on site regularly. These involved discussing any matters relevant to the site including any site safety issues. · Mr Schuetrumpf deposed that: Following the incident involving Mr Paul, I reviewed the current system. In my view, to continue the ongoing improvement of the system, training with respect to scaffolding awareness, needed to be upgraded to ensure that incidents of the kind that involved Mr Paul did not happened again. I understand that immediately after the accident changes were made to the scaffold whilst I was on leave. In addition, the work methodology on site was changed after the accident so that the intermediate decks were removed and the work procedure for the restoration works was from the top deck working down. Sometime later the site was closed whilst a review was undertaken of the work methodology.

11 Mr Kavanagh's affidavit went to the following matters: · His qualifications, which included: Scaffolder Class 1 Ticket; Riggers Class 1 Ticket; Non-riding Dog mans Ticket; Crane Chaser.

· His experience, which included about 38 years working with all different types of scaffolding. The main type of scaffolding worked with over the last twenty-five years being modular scaffolding which was the type of scaffolding use on the East Sydney TAFE Site.

· His duties, which included: (i) managing all scaffolding work undertaken by contractors for the Heritage and Building Services Group (the Group) of the Department: (ii) develop and manage the contract for scaffolding work undertaken by the Group including the calling of tenders, drafting the scope of works, undertaking tender evaluation; (iii) managing the contract for scaffolding works at the East Sydney TAFE campus (the Site). · Mr Kavanagh deposed in his affidavit that: In early December 2000 Greig Schuetrumpf, Project Manager and I undertook a risk assessment on the scaffolding. This was brought about as a result of the expanding scope of works which now showed large amounts of sandstone required replacement. The current working levels of scaffolding that were originally built for the inspection and minor patching required modification to allow for the additional work. I did not document the risk assessment. Greig and I walked around and identified the dangers that were associated with the expanded scope of works and in particular the increased volume of use arising from the expanded scope of works. Following our inspection of early December 2000 it was apparent that lapped scaffolding planks that were bridging the gap between modular scaffold bays may have caused a trip hazard as well as restricting headroom. With the increased use of the scaffolding by stone masons working on the scaffolding for extended periods, over approximately two years, it was considered that the trip hazard and the restricted head room created unacceptable risks that had to be addressed. I decided that the only viable solution for addressing the risks was to have cut and installed wooden planks that would fit into the space between the two transoms. This would eliminate, in our view, both the trip hazard and the problem created by the restricted headroom. Two contractors from the Department schedule rate data base were asked to tender on this work. Regment Pty Ltd were the selected tenderer. Regment Pty Ltd was selected because it was believed that a qualified carpenter would achieve a safer job as the number of angles to be cut in the planks required a degree of precision to enable a snug fit of the planks across the splayed transom bay. The additional cost incurred by the Department to address these issues was $7,480.00. … Greig Schuetrumpf and I inspected the work at building 28 when it was completed. This was in about the middle of January 2001. In my view, the work was undertaken satisfactorily. During our inspection, I noticed no movement. I walked around on the planks and did not notice any thing that would affect the safety of the planks or the scaffolding. Greig who was with me did not mention anything about the planks or the scaffolding moving or not being installed properly. We were both quite happy with the way it was installed. As a result of a concern held by myself regarding the planks being taken or removed by other contractors who may be working on site, I arranged for hoop iron to be nailed onto the planks to ensure that all boards were tied together as one and could not be removed by other tradesmen. This was done by way of a variation to the contract with Regment Pty Ltd. Following the hoop iron being installed, Greig Schuetrumpf and I again inspected the scaffolding. Both Greig and I were satisfied with the quality of the work provided by Regment Pty Ltd. The scaffolding was fit for purpose and we then allowed the stonemasons to commence work on the scaffolding. The stonemasons started work on 22 January 2001, utilising the top level of the scaffolding. After 22 January 2001 I continued visiting the site although I did not have any reason to go to building 28. No one ever mentioned to me any problem with the scaffolding or planks at building 28. Following the incident involving Mr Paul, I attended the area of the incident in company with Pete McRobert, Ron Gray and others. Contact was made with Rich Reich of WorkCover who provided approval to reinstall the timer planks. I reinstalled the planks into the splayed makeup bay and I undertook a number of tests to try to simulate the incident and to identify the cause of the accident. Once the planks were back in position I noticed that most of them were tight fitting. I walked along the boards as they were back in position. I kicked them. I jumped on them. I tried to lever them out with a nail bar. I could not make them fall out although I could make them move. I did notice that some of the boards were a little short and not hard against the end of the transom. · All the Departmental staff that work on or near scaffolding at major sites are now provided a Scaffolding Height awareness course.

12 Mr Kavanagh was a witness for the prosecution, however leave was sought and granted to the prosecution to cross-examine Mr Kavanagh pursuant to s 38(1)(a) of the Evidence Act 1995 in relation to the third particular of the charge, that is, the alleged failure to ensure a competent person carried out an adequate inspection and risk assessment of each timber scaffold platform after modification, prior to allowing persons to access the scaffold.

13 The defendant in this matter has pleaded guilty to the charge and in doing so admitted the first and second particulars. The third particular, however, was challenged on the basis of Mr Kavanagh's evidence in particular that he was a competent person who carried out an inspection of the planks after the work was completed and satisfied himself that the scaffolding was fit for purpose. Indeed, upon inspecting the work Mr Kavanagh decided that to ensure planks were not removed, they should be tied together and this was done. Mr Kavanagh did not, however, make a written risk assessment of the work.

14 The allegation in the third particular was a "failure to ensure a competent person carried out an adequate inspection and risk assessment …" There can be no doubt that Mr Kavanagh was a competent person but I think it must follow that given it was accepted by the defendant that there was a failure on its part to ensure persons were not exposed to risk, given the planks shifted out of their position and given the relatively simple steps taken following the accident to ensure the planks could not shift out of their position, the assessment of the risk in the first place was not adequate. The defendant contended that the absence of a written risk assessment was neither here nor there and could have had no bearing on whether the assessment was adequate. That may be so and in this case there was no evidence that the absence of a written risk assessment contributed to the defendant's failure. However, I should comment that a properly thought out risk assessment checklist that required the relevant person to take a structured approach to the assessment of the risk may well have identified the risk of the planks moving out of their position.

15 I consider that the third particular has been made out. However, in considering the weight I should give it in assessing the seriousness of the offence I note that the second particular referred to a "failure to take such steps as to ensure that each of the timber scaffold platforms on which persons were working were safe". One of the "steps", of course, would be an adequate inspection and risk assessment as referred to in the third particular. The overlap in the two particulars, therefore, is obvious. I have taken the degree of duplication between the particulars into account in assessing the objective seriousness of the offence.

16 In assessing the nature and quality of the offence in this case a number of considerations arise. Firstly, that it was fundamentally important to the safety of persons using the circular scaffolding that the work of infilling was carried out to exacting standards to ensure there would be no movement and no risk of the planks collapsing. In this respect the risk assessment and inspections of the work were not adequate. Further, as Mr D O'Neil of counsel for the prosecutor submitted: The modified scaffolding was to sustain varying loads of weight over a period of time in circumstances where: (i) The boards were not overlapping; (ii) There were no sideboards/kickboards; (iii) The relevant scaffolding did not fit tightly to its surrounds.

17 It was further submitted for the prosecution that the fact that carpenters instead of scaffolders did the work was a matter to be taken into account as contributing to the risk. I do not agree. The use of carpenters to do the work was the subject of careful consideration by experienced and competent personnel and in any event there was nothing put to me that proved scaffolders would have done the job better than carpenters.

18 Mr R Reitano of counsel for the defendant submitted that this was not a case involving an egregious failure on the part of the defendant. The defendant had recognised a risk to safety in the scaffolding and had taken steps to avoid the risk. The defendant had inspected the work in progress and again after the work was completed. The defendant, however, did not quite get it right.

19 Mr O'Neil properly conceded that there were circumstances in the defendant's favour to be taken into account, namely: (a) The circumstances in which the Defendant performed modifications revealed that the Defendant had a genuine concern regarding safety issues. The modifications took place because of concern about height and trip issues. (b) The Defendant's breach did not involve a total absence of inspection of the scaffolding after modification. Clearly, the Defendant inspected the scaffolding but the inspections were deficient. (c) 3D - a qualified a certified scaffolding company - conducted one of its regular inspections after the modifications were completed. 3D did not provide a handover certificate but did provide an inspection certificate.

20 I accept what was submitted about the defendant's concern with safety and its efforts to ensure safety. The defendant was clearly safety conscious and its objective was to ensure safety. However, as the cases have emphasised, the obligation on the employer is to actively seek out all risks to safety and eliminate them. It is not obvious or foreseeable risks that must be eliminated but also those that often occur in workplaces, the unforeseen or hidden risk. In this case a visual inspection of the work was not sufficient. What Mr Kavanagh and Mr Schuetrumpf should have done is ask themselves whether there was even the remotest possibility the planks might shift and put persons at risk. This would have necessitated a much closer consideration of the potential risks, the detriment to safety would have become evident and appropriate action could have been taken to eliminate the risk.

21 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 a person, Mr Paul, fell about one metre towards the next scaffolding deck and sustained a fracture and anterior dislocation of the peroneal tendon to his left ankle. The distance to the next level of scaffolding was 2.3 metres.

22 The prospect of death or injury more serious than that sustained by Mr Paul was not, in my opinion, significant. Nevertheless, Mr Paul's injury was serious and manifests the degree of seriousness of the risk to safety.

23 As Mr O'Neil submitted, the existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant in assessing the seriousness of the offence: See Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 at 27; Inspector Elizabeth Benbow v Planada Holdings Pty Limited [2001] NSWIRComm 275.

24 The remedial steps open to the defendant were: (a) An adequate risk assessment and inspection of the completed work; (b) Fixing the scaffolding boards so that they overlapped and where then screwed or nailed; (c) Putting in place sideboards/kickboards; and (d) Ensuring that the planks were tightly fitted.

25 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. This case involved a fall in the construction industry, a not uncommon source of prosecutions in this jurisdiction.

26 As to specific deterrence, the relevant consideration is the likelihood of the defendant re-offending. In this regard relevant inquiries are: What is the attitude of a defendant to questions of workplace safety and what were the steps taken to improve safety following an accident? What are the defendant's antecedents? What can be said about its corporate character? What is the nature of the defendant's enterprise and does the industry in which it operates involve inherent risks to safety?

27 The defendant is a large organisation operating in the construction industry where risks to the safety of workers are ever-present. The defendant, however, has taken appropriate steps to avoid a re-occurrence of the accident involving Mr Paul, it has reviewed its policies and procedures and has in place an impressive system aimed at ensuring persons are not put at risk where it has a responsibility for occupational health and safety. The defendant does have two prior convictions under the Act and this will count against it when considering the maximum penalty available but the convictions should not overshadow what is otherwise a good record. In the circumstances, I do not consider it necessary to include in the penalty a significant element aimed at encouraging a greater level of diligence on the part of the defendant in the future because I consider the defendant has demonstrated that it has already shouldered that responsibility.

28 The maximum penalty in this case is $825,000. 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 IR163 at [23].

29 There are a number of subjective factors to be taken into account in mitigation. Firstly, there was an early plea of guilty. Secondly, as I have already observed, the defendant has taken appropriate steps to avoid a re-occurrence of the risk and has appropriate occupational health and safety policies and practices in place. Thirdly, the defendant has a good safety record notwithstanding the previous convictions. Fourthly, I consider the defendant is a good corporate citizen.

30 I consider an appropriate penalty to be $145,000. However, this should be discounted by 25 per cent to take into account the utilitarian value of the early guilty plea and a further 10 per cent for the other subjective factors. This results in a penalty of $94,250.

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 $94,250 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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