Inspector Guillarte v Trustees of De La Salle Brothers

Inspector Guillarte v Trustees of De La Salle Brothers - [2004] NSWIRComm 49 - NSWIRComm 2004 case summary — Zoe

[15]

9 An agreed statement of facts was tendered in relation to both charges. The statement relating to the s 15(1) charge contained the following information: 7. On 13 December 2000, the defendant employed a number of persons including: (a) Mr Vladimir Drozdoff (" Mr Drozdoff "), maintenance supervisor; (b) Mr Mark Sullivan (" Mr Sullivan "), maintenance officer; (c) Mr Thomas, casual general hand; and (d) Mr Glenn Howard (" Mr Howard "), casual general hand. 8. On 13 December 2000, Mr Thomas was aged 16 years and Mr Howard was also aged 16 years. 9. On 13 December 2000, Mr Drozdoff was responsible for the maintenance of the premises at the said site. Mr Sullivan assisted Mr Drozdoff with the maintenance. 10. Mr Thomas and Mr Howard were employed by the defendant as part of the student employment program and were both students of Oakhill College, the secondary school operated at the said site by the defendant. 11. Mr Thomas was rostered to work at the site from 11 December 2000 - 22 December 2000 and from 14 January 2001 - 25 January 2001. 12. As casual general hands Mr Thomas and Mr Howard undertook duties such as sweeping, lawn mowing, applying fertilisers, trimming lawn edges with a whipper snipper, cleaning - including scrubbing floors and walls, cleaning by using a high pressure water hose, moving desks and cleaning leaves off roofs. 13. Mr Thomas and Mr Howard received no formal training or written documentation in relation to how to perform the duties of general hand. Mr Thomas and Mr Howard learnt how to perform the duties as general hand on-the-job and received training and instructions by fellow employees. 14. On 13 December 2000, Mr Drozdoff's immediate supervisors were the Principal of Oakhill College and the Bursar of Oakhill College, Mr Stephen Molloy. Mr Molloy was not present at the site on 13 December 2000. 15. On the morning of 13 December 2000, Mr Drozdoff told Mr Sullivan to clean out, with the assistance of two student employees, the roof gutters on the north side of the Brother Quentin Building located on the said site. Mr Drozdoff instructed Mr Sullivan to clean out the roof gutters by hand and then to clean any remaining mess with a fire hose. 16. Mr Drozdoff did not consider that the presence of a skylight on the roof of the Brother Quentin Building a risk to any worker because Mr Drozdoff had told Mr Sullivan to clean the gutters, not the roof, of the Brother Quentin Building. 17. On 13 December 2000 Mr Sullivan, along with Mr Thomas and Mr Howard went to the rear of the Brother Quentin Building. 18. Mr Sullivan told Mr Thomas and Mr Howard to clean out the roof gutters of the Brother Quentin Building by hand and then to clean any remaining mess down with a fire hose. 19. Mr Sullivan set up a ladder so as Mr Thomas and Mr Howard could access onto the roof of the Brother Quentin Building. 20. Mr Sullivan did not access onto the roof with Mr Thomas or Mr Howard. Instead, Mr Sullivan left Mr Thomas and Mr Howard to perform the work of cleaning out the roof gutters unsupervised. 21. Mr Sullivan left Mr Thomas or Mr Howard to perform the work while he went to collect a tool. Mr Sullivan then proceeded to check on other workers working in a different section of the site. 22. The roof of the Brother Quentin Building is double tiered and it was onto the lower level roof of the Brother Quentin Building to which Mr Howard and Mr Thomas accessed via the ladder that Mr Sullivan had set up for them (" lower roof "). The lower roof is approximately 700 millimetres wide and is flat. Access to a second level roof on the Brother Quentin Building (" second level roof ") is made from the lower roof. Located on the second level roof was a skylight, which measured approximately 1.5 metres X 1.5 metres. The skylight was approximately 9 metres away from the gutter on the second level roof that Mr Howard and Mr Thomas had been told to clean. 23. At all material times on 13 December 2000 the tools used by Mr Thomas and Mr Howard to clean the gutters were a blower and gloves. Both Mr Howard and Thomas were wearing steel-capped boots. 24. Once on the lower roof Mr Howard and Mr Thomas cleaned the leaves out of the lower roof gutter. After they had completed this task, Mr Thomas and Mr Howard pulled the ladder up on to the lower roof. They then positioned the ladder on the lower roof and accessed up and onto the second level roof.

[16]

Mr Howard commenced cleaning the leaves out of the gutter on the second level roof and Mr Thomas moved back onto the second level roof with a blower to blow leaves into the gutters that Mr Howard was cleaning. Some leaves became stuck around the skylight. Mr Thomas attempted to blow those leaves that were stuck around the skylight with the blower. Whilst attempting to do this Mr Thomas stood on the skylight. Mr Thomas fell through the skylight. 26. Mr Thomas fell a distance of approximately 5.1 metres. 27. Mr Thomas fell into a hallway in front of a set of stairs located directly below the skylight in the hallway of the Brother Quentin Building. 28. Immediately prior to Mr Thomas falling through the skylight, Mr Howard heard a "crack" sound and then saw Mr Thomas disappear through the skylight. 29. After Mr Thomas had fallen through the skylight Mr Howard descended from the second level roof and the lower roof via the ladder. Mr Sullivan passed Mr Howard running for help for Mr Thomas. 30. Mr Thomas was taken to Westmead Hospital and then transferred to Baulkham Hills Private Hospital on 14 December 2000. The hospital records reveal that Mr Thomas sustained the following injuries in the accident: (a) Fracture of the right distal radius and radioulnar dislocation over carpal bones; (b) Small wedge compression fracture of L2; (c) Left calcaneal fracture; (d) he had a normal CT head, abd and C-spine C1 and 2. 31. Mr Thomas returned to his studies at the school as a full time student on 30 January 2001. Mr Thomas also suffered from abrasions. Mr Thomas underwent surgery to his right forearm and had an orthopaedic implant (pins) inserted into his right arm. Mr Thomas also undertook physiotherapy. 32. Mr Thomas returned to work in the student employment program on 19 March 2001. 33. On 13 December 2000 the defendant had no formal system of work in place for working on roofs, including a system to ensure the prevention of falls. 34. On 15 February 2001, WorkCover received an anonymous complaint (File no. DOI/005477) in relation to injury sustained by Mr Thomas. The complaint was allocated to me on 16 February 2001. 35. The Defendant positively assisted the WorkCover Authority in precisely identifying the Defendant for the purposes of ensuring the institution of a valid prosecution. 36. On 12 March 2001 Inspector Guillarte visited the site and: (a) confirmed with Mr Drozdoff that an accident had occurred at the site during the Christmas holidays in 2000; (b) confirmed the accident involved a school student, enrolled at Oakhill College at the said site; (c) observed the roof area of the Brother Quentin Building. The second level roof was partially covered by a blue tarpaulin which covered a broken skylight; (d) observed a section of the second level roof area with a broken skylight covered by a blue tarpaulin, from inside the hallway of the Brother Quentin Building. 37. At the time of the accident the defendant had control and ownership of the site including the Brother Quentin Building. The defendant failed to ensure the health safety and welfare at work of all its employees, in particular, Mr Thomas. The defendant failed: (a) to provide and maintain systems of work that were safe and without risks to health; (b) to provide information instruction, supervision and training to its employees to enable them to perform their work in a manner that was safe and without risks to health.

[20]

13 Mr Molloy also explained the defendant's youth employment program. He deposed that: Students are selected for the Program by College management in consultation with House Deans. As part of this process, a student who is a candidate for participation in the scheme is firstly assessed by College teaching and management staff to determine that the student has a level of maturity and a sense of responsibility sufficient to suggest that the student's participation in the Program is likely to be successful. The Program has proven to be very popular with students and their parents, and has a number of advantages for both the College and students, namely:- a. The students gain valuable work experience with the opportunity to obtain a reference on their approach to work - for example, this was the deciding factor for one student who obtained an apprenticeship with an electrician following work in the program; b. Parents of students employed in the Program like the fact that the students gain work experience in a familiar environment; c. The College has the benefit of employing people who know the physical layout of the College and who can be expected to have a commitment to the College. The students who are employed in the Program undertake "general hand/grounds assistant" duties, which include maintenance duties such as sweeping, mowing, whipper snipper work, fertilizing, cleaning (scrubbing floors and walls), high pressure water cleaning, organizing desks and moving them, and clearing leaves, rubbish and debris from the roofs of the buildings. Students are provided with on the job training, and supervision in their duties, by the College's maintenance supervisor, Mr Vladimir (Wally) Drozdoff and the permanently employed maintenance groundsman, Mr Mark Sullivan. Instructions provided, orally, included safety matters such as: a. Wearing of safety gloves, safety hats and appropriate footwear at all times; b. Correct use of ladders, and exercising care when working at any height (eg not to work standing too near the edge of a roof). The Program is not designed to and does not operate as a cost saving measure. Students are paid at the governing rates of pay and conditions for the classification of "Grounds Assistant" under the applicable State award for maintenance staff at schools, and superannuation contributions are paid on their behalf into the relevant Catholic Schools' Superannuation Fund. 14 In relation to Mr Thomas, Mr Molloy said: As with all the other students in the Program, Peter was inducted into the program by Mr Drozdoff and given on the job training, instruction and supervision by Mr Drozdoff and Mr Sullivan. By 13 December 2000 Peter had, on a number of occasions, undertaken all of the various tasks that were customarily assigned to students in the Program (as referred to in paragraph 16 of this Affidavit) and was regarded by his supervisors at that time as an experienced and responsible employee in the Program.

[22]

16 Mr Molloy explained that Mr Thomas was put on an injury management plan and was successfully rehabilitated. Following the accident steps were taken to address occupational health and safety at the College. Mr Molloy said: The College Occupational Health & Safety Committee was formed in February 2000. As required under the 1983 Act, all members of the Occupational Health & Safety Committee attended a four (4) day training course in June 2000. My enquiries have failed to locate any internal College records pre dating December 2000 concerning staff training or instruction on occupational, health and safety matters or in connection with working on roofs prior to December 2000. Further the College took the following steps: a. Immediately after the accident, an instruction was given forbidding work being undertaken on roofs of College buildings by anyone until further notice, and signed to that effect were placed on roofs, including the roof of the Brother Quenton building. b. Soon after the accident, a warning sign was placed next to the skylight on the Brother Quenton building. c. A Work Method Statement was developed and implemented (in compliance with Workcover Improvement Notice No. 216447) relating to cleaning roof gutters using ladders, the use of a harness and working on flat roofs. d. The problem relating to skylights and working on roofs was discussed with other maintenance teams from other schools within the Independent Schools Property and Facilities Managers Group. e. Safety Instructions for the Maintenance Department were also developed and implemented. f. A workshop demonstration was attended by Mr Drozdoff, on the application of roof lifelines and fixing eyelets. g. Three (3) acrylic skylights at the College were replaced with a polycarbonate substrate which has a high impact resistance. h. Safety instruction meetings for all maintenance staff were conducted within the Maintenance Department. i. Safety videos relating to occupational health and safety and the College as a workplace were purchased and showed to all existing maintenance employees. The Safety Videos are now showed as part of the induction program to all students taking part in the Program and to maintenance employees. j Safety signs were installed around the College, particularly on the roofs of the College, stating that all personnel were to keep off the roofs. k. A safety harness kit was purchased by the College and will be brought into operation once appropriate fixtures are attached to roofs. l. All new staff now have an induction in occupational health and safety and are given training on workplace safety. m. All staff have been issued with instructions about a wide range of safety matters including working on roofs. n. Supervisors are required to closely supervise student employees at all times. o. Student employees are permanently prohibited from working on roofs in any circumstance and the work is undertaken by a contract company, Program Maintenance Services. p. All administration staff have been briefed on all the requirements regarding notification of accidents under Section 27 of the Occupational, Health & Safety Act, 1983 and a specific person, the Assistant Bursar, has been nominated as the person responsible for complying with the requirements in relation to notifying workplace accidents. q. Codes of Practice booklets relating to occupational health and safety, and specific to tasks to be performed around the College have been acquired. 17 Mr Molloy deposed that the defendant had fully cooperated with the WorkCover Authority in its investigation of the accident and that it very much regretted the accident.

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