Inspector John Mulder v Michelle Pontone and another

Inspector John Mulder v Michelle Pontone and another - [2005] NSWIRComm 432 - NSWIRComm 2005 case summary — Zoe

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1 Michelle Pontone, the first defendant, was the sole director of Pontone Engineering Pty Ltd and a qualified boilermaker. Pontone Engineering was contracted by Pro Industrial Services Pty Ltd, a labour hire company, to provide the first defendant's services to premises at 238 Berkeley Road Unanderra. At the same time FD Hales Pty Ltd was contracted by Pro Industrial Services to provide the services of Richard Hales to the premises as a metal worker. 2 Klondu Engineering Pty Limited, the second defendant, occupied the premises, owned the equipment, and was engaged in the business of providing metal and fabrication services at those premises. The second defendant employed Cesare Cignarella as a manager whose duties included supervision of the work which was carried out in Workshop B at the premises. The second defendant incorporated Pro Industrial Services for the purpose of having direct dealings with contract labourers including the payment of wages. 3 The first defendant and Mr Hales had a long and close working relationship which spanned some ten years. During this time they formed what may be described as an informal partnership. The first defendant was primarily engaged in fabrication work and Mr Hales was primarily engaged in welding. When they were sub contracted to work for the second defendant, they developed a particular work method whereby they would first discuss their respective roles. The first defendant would then undertake the fabrication work up to a certain point at which time Mr Hales would then complete the work. 4 On Monday, 25 March 2002 Mr Hales was welding a discharge hood at the second defendant's premises. The hood had been fabricated by the first defendant some 3 to 4 days earlier. It weighed about 718 kilogrammes. At about 2.30pm Mr Hales had lifted the hood by wrapping lifting chains around bracing which had been tack-welded onto the side of the hood by the first defendant. When the hood was about one metre above the ground the bracing gave way and the hood fell onto Mr Hales' feet. Mr Hales was transported to Wollongong hospital where he underwent surgery to repair his left foot. His right leg was amputated below the knee about 10 days later. Plea of guilty by first defendant 5 The first defendant has pleaded guilty to an amended application for order which alleges that an offence was committed under s 26 of the Occupational Health and Safety Act 2000 (the Act). It should be immediately emphasised in these sentencing remarks that s 26 of itself does not create an offence. An examination of the amended application filed against the first defendant records however that the essential elements of an offence under ss 8(2) and 26 of the Act have been properly set out, that is, the application alleges in its terms that the first defendant being a director of Pontone Engineering has breached s 26 in that Pontone Engineering in contravention of s 8(2) failed to ensure persons not in its employment, in particular Rick Hales were not exposed to risks to their health and safety arising from Pontone Engineering's undertaking while at its place of work. 6 As the essential elements of the offence are expressly set out in the amended application, that application is not therefore invalidated by the misdescription of the section under which the offence arises. The correct form of the charge should have contained an express allegation of a breach of s 8(2) of the Act by virtue of s 26 of that Act: Inspector Jorgenson v Daoud (2005) 143 IR 170 at 180, 181, 185; see also Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at 455. 7 The failure of Pontone Engineering to ensure non employees were not exposed to risks to safety is particularised in the amended application as arising from two specific omissions which are:

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Failure to provide adequate supervision of persons not in the employ of Klondu Engineering Pty Limited in the lifting and welding of a fabricated metal discharge hood. The prosecutor's evidence 10 The prosecutor represented by Mr Newall of counsel tendered separate bundles of documents against each defendant which were separately marked as exhibits. The subject matter of each tender bundle is however largely identical and therefore I consider it both convenient and appropriate to examine the prosecutor's evidence against both defendants together. 11 In addition to the facts already recited earlier in these sentencing remarks, the agreed statement of facts records that the hood was fabricated by the first defendant over a period of 3 to 4 days before the accident. The fabrication process included tack-welding 50mm x 50mm RHS bracing onto the side of the hood as a temporary measure to prevent distortion during welding. Prior to the commencement of the fabrication of the hood Mr Cignarella issued both the first defendant and Mr Hales with drawings which provided instruction on the fabrication and welding of the hood. During the period when the work was being performed by both the first defendant and Mr Hales in Workshop B, Mr Cignarella conducted regular inspections and supervised the work being conducted at the workshop. The first defendant used a wall crane and overhead crane to turn the hood around 2-3 times during the fabrication process. The first defendant knew that when Mr Hales completed the welding on the hood that he would also need to turn the hood. The first defendant instructed Mr Hales on the size of the welds and where to weld but he did not inform or instruct Mr Hales on a safe method for lifting the hood. 12 Mr Hales knew that tack-welded bracing was used to prevent distortion in the welding process and he admitted that he should have checked before he used the bracing to lift the hood. It was common practice for Mr Hales to use bracing as a means of slinging objects lifted by a crane. Mr Hales was also standing in front of the hood as he lifted it whereas he usually stood at the side. 13 The second defendant did not ensure that Mr Hales received adequate information, instruction, training and supervision in relation to safely lifting objects by crane or where to stand during the lifting process. The second defendant was not supervising Mr Hales at the time of the accident. Mr Hales had received instructions from the second defendant about how to use the wall jib crane to turn the hood but no adequate information, instruction or training about how to sling the hood when it was ready to be turned for welding. 14 The Court was informed by the prosecutor that neither defendant had any prior convictions. First defendant's evidence

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15 The first defendant relied on an affidavit sworn by him on 15 March 2005. In the affidavit the first defendant explains that because he and Mr Hales were in the second defendant's premises and under the direction and control of the manager that both he and Mr Hales were simply supplying their labour and that the second defendant was responsible for matters of workplace safety. He says that Mr Cignarella gave directions to him and also Mr Hales in relation to the various jobs to which they were assigned and that this was not something he or Mr Hales had control of or input into. 16 In relation to the circumstances immediately prior to the accident Mr Pontone says he told Mr Hales that the hood was braced and tack-welded to hold the hood in place. What he did not specifically tell Mr Hales was that the bracing was only tack-welded and not fully welded. This was because he assumed Mr Hales would know since he was responsible for welding in accordance with their informal partnership and because they had had a long work association. Having bracing on the hood means it is only tack-welded. The purpose of this is to stop movement and distortion and to keep the hood in place. It was common practice according to the first defendant for him to install bracing on heavy metal objects and for Mr Hales to work on them. When the first defendant was fabricating the hood he turned it around using the overhead and wall crane. He had no idea that Mr Hales would move the hood using the temporary brackets or bracing. 17 The first defendant says he now realises that it was not good enough to assume that Mr Hales would know not to turn the hood using the tack-welded bracing. Had he seen Mr Hales chain the hood by the bracing he would have intervened and suggested alternatives. 18 The first defendant was a witness to the accident. He was about one foot away from the hood when the sling broke. The bracing had fallen off and the hood fell to the ground directly onto Mr Hales' legs. 19 In relation to occupational health and safety issues the first defendant describes himself as a safety focussed person who continuously stressed the importance of safety to representatives and contractors of the second defendant. Notwithstanding this the first defendant says all his work was performed under the close supervision of Mr Cignarella. He did not feel he had the power to make decisions about safety for the whole factory, but he did feel he had power over safety issues around his work station. Second defendant's evidence

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20 Mr Cahill for the second defendant read into evidence without objection an affidavit of Fiona Rossit sworn on 3 March 2005 together with a number of annexures. 21 At the time of swearing the affidavit Ms Rossit was the second defendant's office manager. She deposes that the second defendant commenced operations in 1989 providing metal and fabrication services. The directors of the second defendant are Mr Cignarella and Louis Mifsud. The second defendant no longer has employees. 22 The affidavit provides details of a number of matters including Mr Hales' work experience which according to Ms Rossit was for some 21 years working in the metal industry, during which time Mr Hales was regarded by the second defendant as an "extremely valuable asset" and a good worker, well-trained and extremely competent in all aspects of boilermaking. 23 At the time of the offence, according to Ms Rossit the second defendant had a number of safety procedures including machinery and equipment training, inductions and tool-box talks. In addition personal protection equipment (PPE) was required to be worn, standard safety and warning signs were prominently displayed in relation to the use of PPE, and an induction safety manual was in existence for sub-contractors and a procedures manual existed which included various instructions on operating procedures and risk identification. 24 Mr Hales when turning the hood on the day of the offence carried out a number of different procedures. The procedures followed by Mr Hales required for example that items of substantial weight should be turned with an overhead crane not a wall crane. 25 According to Ms Rossit sub contractors received verbal work instructions and drawings from Mr Cignarella. Mr Hales, for example was a recipient of such instruction and drawings on the day of the offence. Because Mr Hales had a longstanding working relationship with the second defendant he was considered to have the relevant experience and skills to do the work that he was contracted to do. 26 Mr Hales also received supervision from the workshop supervisor who was on the workshop floor on the day of the offence. This supervisor reported to Mr Cignarella. Daily job sheets were allocated to each worker. Mr Cignarella also frequented the workshop floor and visually inspected work being done. 27 The second defendant did not and does not have a fixed budget for safety because it is a small company. Safety issues however are rectified as soon as possible. A system of reporting and ongoing consultation existed at the time of the offence to address safety requirements. Also, at the time of the offence tool box talks took place and each meeting was documented. Consideration

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30 The system of work employed by the first defendant at the time of the offence involved close cooperation with Mr Hales. As earlier described, the two men worked together in an informal partnership at the second defendant's premises with the first defendant fabricating and constructing metal objects and with Mr Hales doing the welding. According to the first defendant his work, and the work of Mr Hales, was closely supervised by the second defendant. Because of this close supervision, the first defendant was of the view that the second defendant was responsible for worksite safety. Nevertheless the first defendant felt that he had control over safety issues around his workstation. 31 In relation to the fabrication of hoods the first defendant had a standard practice of tack-welding bracing onto the hood to prevent distortion. He did not tell Mr Hales that the bracing was not fully welded because he assumed Mr Hales would know this. He also assumed that Mr Hales would not turn the hood using the tack-welded bracing. The first defendant's practice when turning the hood during fabrication was to use the overhead wall crane. 32 Notwithstanding the first defendant's view that the second defendant was responsible for worksite safety, the first defendant had described himself as a "safety focussed person" and someone who often discussed safety issues with Mr Mifsud. 33 It does not appear from this brief summary of the first defendant's work practices that he had in place any system of safety procedures at the second defendant's premises. The fact that the first defendant was of the mistaken belief that safety and the development of systems at the premises was the responsibility of the second defendant does not absolve him of his obligations under the OH&S legislation. A similar submission made in the context of the statutory defences was rejected by his Honour Walton J, Vice President in WorkCover Authority (NSW) (Inspector Farrell) v Morrison (No 1) [2001] NSWIRComm 325 at [64] [65]. 34 Similarly, in the present circumstances the first defendant had the ability and the capacity to provide a procedure, by way of, for example, a work method or instruction or information, to ensure Mr Hales underwent the task of lifting and turning the hood safely. Informing Mr Hales that the braces were only tack-welded and should not be used for lifting was within the first defendant's capacity. The first defendant conceded in any event in his affidavit that he had "some power" over safety issues around his work station. Systems of work: second defendant

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The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at pars 72-74), in cases such as this, it should be reiterated that "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R v Radich [1954] NZLR 86 at 87 (adopted by this Court in Capral Aluminium at par 72). 49 In relation to specific deterrence, the first defendant submitted it should be given no weight because he has left the metal fabrication industry permanently and is in the process of becoming a mortgage broker. The second defendant accepted that the Court should have regard to specific deterrence, but that circumstances such as the fact that the second defendant had been operating for some 15 years in a highly dangerous industry with an unblemished safety record prior to the offence, would serve to reduce the impact of the principle on penalty. The second defendant also relies on the comprehensive safety procedures it had in place at the time of the offence. 50 With these matters in mind, I propose to give no weight to specific deterrence in relation to the first defendant. The principle is however clearly relevant to the second defendant's circumstances which includes the fact that operations are, and continue to be, conducted in a highly dangerous work environment. Consequences of the breach: first and second defendants

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