Inspector John Patton v Vibro-Pile

Inspector John Patton v Vibro-Pile - [2003] NSWIRComm 356 - NSWIRComm 2003 case summary — Zoe

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3 The following charge under s15(1) of the Act is brought against the Western Australian company by whom the injured employee was employed: VIBRO-PILE (W.A.) PTY. LTD. (ACN 009 106 585) . . . ("the Defendant"), being an employer at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site") DID FAIL, on 14 August 2000, contrary to Section 15(1) of the Occupational Health and Safety Act 1983 (NSW) to ensure the health, safety and welfare at work of all of the Defendant's employees and, in particular, Mr Russell William Collyer in that:- (a) It failed to provide such information, instruction, training and supervision to Mr Collyer in regards to the process of driving sheet piles by the use of an unsupported dummy sheet pile called a dolly ("the dolly") at the site. (b) It failed to ensure that the work carried out by Mr Collyer in relation to the driving of sheet piles involved a system of work which was safe and without risk to health to ensure that the dolly was sufficiently attached to the hammer of the crane to prevent it from falling and causing injury to Mr Collyer. 4 Relevant to the charge under s15(1) the following facts are agreed: 2. The Defendant Vibro-pile (WA) Pty Ltd (ACN 009 106 585) is a company duly incorporated in Western Australia with a registered office located at 1 Steele Court, Mentone in the State of Victoria, was at all material times an employer in the state of New South Wales being an employer at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site"). 3. At all material times Baulderstone Hornibrook Engineering Pty Limited and Bilfinger + Berger had formed a joint venture known as the BHBB M5 East Joint Venture ("BHBB") in relation to the construction of the M5 East Motorway. 4. At all material times Vibro-pile (Aust.) Pty. Ltd. (ACN 006 103 126) sub-contracted to BHBB to carry out the steel piling works at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site") which involved the installation of 204 pre-fabricated Arbed type AZ 18 sheet piles ("the undertaking"). 5. At all material times the Defendant was a labour hire company and provided labour to Vibro-pile (Aust.) Pty. Ltd. at various sites including the said site. 6. At all material times the Defendant was an employer in the State of New South Wales. 7. At all material times the site was the Defendant's place of work. 8. At all material times the Defendant employed (1) Mr Russell William Collyer, aged 35 years, as a labourer to carry out work on behalf of Vibro-pile (Aust.) Pty. Ltd. under the direct instruction of Mr James Morris, a Contract Supervisor, at the said site. (2) Jason Dandy as a leading hand labourer at the said site (3) Brian Smith as a crane operator at the said site 9. As part of the sub-contract between Vibro-pile (Aust.) Pty. Ltd. and BHBB, Vibro-pile (Aust.) Pty. Ltd. was carrying out the installation of 204 pre-fabricated arbed type AZ 18 plus 1.0 sheet piles. The sheet piles were installed using a crawler crane utilising a PTC Vibrofonceur 40-a-2 vibrator and a Hydraquip hydraulic hammer. The procedure for vibrated and driven sheet pile put in place by Vibro-pile (Aust.) Pty. Ltd. required that " where piles finish at or below ground level, the service crane will be fitted with a short set of leaders and the hammer is placed in the leaders. A dolly (dummy sheet pile, approximately 3 metres long) is used to drive sheets down to final level". 10. The process required the dolly to be placed, by the use of a crane, on the top of the individual sheet pile. The dogman would check the position of the dolly and then unhook the dolly from the auxiliary line of the crane. Using the hammer attached to the crane, the sheet pile would be driven down to the required level. The hammer would then be lifted off the top of the dolly and then the auxiliary line would then be re-attached to the dolly so the dolly could be removed from the sheet pile that had just been driven. The process would then start again, with the dolly being placed onto the next sheet pile to be driven. 11. The system used did not require the dolly to be attached to the hammer. The dolly weighed approximately 1.38 tonne. 12. On 14 August 2000, Mr Collyer, Mr Dandy and Mr Smith were carrying out the installation of the pre-fabricated sheet piles at the site, under the supervision of Mr Morris. 13. Mr Smith was operating the crane at the site, with Mr Dandy acting in the position of dogman, checking the positioning of the top of each sheet pile. The workers had finished driving sheet pile number 194 at the site and took the dolly off sheet pile number 194 and tried to fit it onto the top of sheet pile number 193. The dolly would not fit so Mr Morris was called over by Mr Dandy to assist. Under the instruction of Mr Morris, Mr Dandy cut the top of sheet pile number 193. 14. Approximately two weeks earlier, due to difficulties attaching the dolly to sheet piles, Mr Morris had given instructions for the trimming of the teeth of the dolly to allow easier placement and removal. 15. Once sheet pile number 193 had been trimmed, Mr Dandy using a ladder, unhooked the dolly from the auxiliary line of the crane which had been used to lift the dolly. After Mr Dandy had come down from the ladder, Mr Collyer took the ladder to move it out of the way. Suddenly the dolly started moving. Mr Dandy called out to Mr Collyer to get out of the way but Mr Collyer was unable to move out of the way in time. The dolly fell down off the top of sheet pile No. 193 and struck Mr Collyer. 16. Mr Collyer had received general occupational health and safety induction training upon commencement at the site. He also received on the job training with respect to the system used for driving sheet piles and with respect to some safety precautions in that regard. 17. In the subject accident, Mr Collyer suffered a fractured right eye socket, a broken back, a dislocated left hip, multiple fractures to his lower right leg, a cracked sternum, three fractures to the right ribs, a broken right foot, lung contusions and facial lacerations. 18. The Job Safety Analysis for the specific task of driving sheet piles made no reference to the necessity of having the dolly permanently chained to the hammer to ensure that it would be safely in place. 19. Since the accident, Vibro-pile (Aust.) Pty. Ltd. has issued an amended procedure for vibrated and driven sheet piles which requires that the dolly be permanently chained to the hammer.

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5 The Australian company faces an amended charge under s16(1) of the Act for its failure to ensure the safety of persons not employees at the defendant's place of work: Vibro-pile (Aust.) Pty. Ltd. (ACN 006 103 126) . . . (the Defendant) being an employer at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site") DID FAIL on 14 August 2000 contrary to Section 16(1) of the Occupational Health and Safety Act 1983 (NSW) to ensure that persons not in the Defendant's employment and in particular, Mr Russell William Collyer, were not exposed to risks to their health or safety arising from conduct of the Defendant's undertaking whilst they were at the Defendant's place of work, in that:- (a) It failed to ensure that the work carried out by Mr Collyer in relation to the driving of sheet piles involved a system of work which was safe and without risk to health to ensure that the dolly was sufficiently attached to the hammer of the crane to prevent it from falling and causing injury to Mr Collyer. (b) It failed to provide or maintain systems of work which were safe and without risks to health for the installation of sheet piles at the premises. 6 Relevant to this charge are the following Agreed Statement of Facts: 2. The Defendant, Vibro-pile (Aust) Pty Limited (ACN 006 103 126) is a company duly incorporated in Victoria with a registered office located at 1 Steele Court, Mentone in the State of Victoria was at all material times an employer in the state of New South Wales being an employer at a construction site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site"). 3. At all material times Baulderstone Hornibook Engineering Pty Limited and Bilfinger + Berger had formed a joint venture known as the BHBB M5 East Joint Venture ("BHBB") in relation to the construction of the M5 East Motorway. 4. At all material times the Defendant sub-contracted to BHBB to carry out the steel piling works at the BHBB site located at 27 Henderson Road, Turrella in the State of New South Wales ("the site") which involved the installation of 204 pre-fabricated Arbed type AZ 18 sheet piles ("the undertaking"). 5. At all material times Vibro-pile (W.A.) Pty. Ltd. (ACN 009 106 585) was a labour hire company and provided labour to the Defendant at various sites including the said site. At all material times the Defendant was an employer in the State of New South Wales. 6. At all material times the site was the Defendant's place of work and the undertaking referred to in paragraph 4 was the Defendant's undertaking. 8. At all material times Vibro-pile (W.A.) Pty. Ltd. employed (1) Mr Russell William Collyer, aged 35 years, as a labourer to carry out work on behalf of the Defendant under the direct instruction of Mr James Morris a Contract Supervisor at the said site. (2) Jason Dandy as a leading hand labourer at the site (3) Brian Smith as a crane operator at the site 9. As part of the sub-contract between the Defendant and BHBB, the Defendant was carrying out the installation of 204 pre-fabricated arbed type AZ 18 plus 1.0 sheet piles. The sheet piles were installed using a crawler crane utilising a PTC Vibrofonceur 40-a-2 vibrator and a Hydraquip hydraulic hammer. The procedure for vibrated and driven sheet pile put in place by the Defendant required that "where piles finish at or below ground level, the service crane will be fitted with a short set of leaders and the hammer is placed in the leaders. A dolly (dummy sheet pile, approximately 3 metres long) is used to drive sheets down to final level". 10. The process required the dolly to be placed, by the use of a crane, on the top of the individual sheet pile. The dogman would check the position of the dolly and then unhook the dolly from the auxiliary line of the crane. Using the hammer attached to the crane, the sheet pile would be driven down to the required level. The hammer would then be lifted off the top of the dolly and then the auxiliary line would then be re-attached to the dolly so the dolly could be removed from the sheet pile that had just been driven. The process would then start again, with the dolly being placed onto the next sheet pile to be driven. 11. The system used did not require the dolly to be attached to the hammer. The dolly weighed approximately 1.38 tonne. 12. On 14 August 2000, Mr Collyer, Mr Dandy and Mr Smith were carrying out the installation of the pre-fabricated sheet piles at the site, under the supervision of Mr Morris. 13. Mr Smith was operating the crane at the site, with Mr Dandy acting in the position of dogman, checking the positioning of the top of each sheet pile. The workers had finished driving sheet pile number 194 at the site and took the dolly off sheet pile number 194 and tried to fit it onto the top of sheet pile number 193. The dolly would not fit so Mr Morris was called over by Mr Dandy to assist. Under the instruction of Mr Morris, Mr Dandy cut the top of sheet pile number 193. 14. Approximately two weeks earlier, due to difficulties attaching the dolly to sheet piles, Mr Morris had given instructions for the trimming of the teeth of the dolly to allow easier placement and removal. 15. Once sheet pile number 193 had been trimmed, Mr Dandy using a ladder, unhooked the dolly from the auxiliary line of the crane which had been used to lift the dolly. After Mr Dandy had come down from the ladder, Mr Collyer took the ladder to move it out of the way. Suddenly the dolly started moving. Mr Dandy called out to Mr Collyer to get out of the way but Mr Collyer was unable to move out of the way in time. The dolly fell down off the top of sheet pile No. 193 and struck Mr Collyer. 16. Mr Collyer had received general occupational health and safety induction training upon commencement at the site. He also received on the job training with respect to the system used for driving sheet piles and with respect to some safety precautions in that regard. 17. In the subject accident, Mr Collyer suffered a fractured right eye socket, a broken back, a dislocated left hip, multiple fractures to his lower right leg, a cracked sternum, three fractures to the right ribs, a broken right foot, lung contusions and facial lacerations. 18. The Job Safety Analysis for the specific task of driving sheet piles made no reference to the necessity of having the dolly permanently chained to the hammer to ensure that it would be safely in place. 19. The Job Safety Analysis did not take into account the use of the dolly to drive the piles below the ground level. 20. The Defendant's Project Safety Plan for the site made no mention of the use of a dolly. 21. Following the accident, the dolly was modified and trimmed so that it would more easily fit into the sheet piles. 22. Since the accident, Vibro-pile (Aust.) Pty. Ltd. has issued an amended procedure for vibrated and driven sheet piles which requires that the dolly be permanently chained to the hammer.

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19 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of consideration of breaches under the Act where Hungerford J held: "I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive". These principles were recently cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74] where it was said: (the) . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . .

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36 Such a principle however cannot be applicable when there are two defendants. Rather it appears the reasoning applied by the Commission in Court Session in Warman Ltd v WorkCover Authority (1998) 80 IR 326 (at 340-341) as to parity in sentencing is applicable in the circumstances: We also accept that the principle of parity in sentencing as discussed by the High Court in Postiglione -v- The Queen ((1997) 145 ALR 408) has application to sentences imposed under the O H & S Act. In that context it is appropriate to have some regard to the sentences imposed by Hungerford J on Drake Personnel Ltd, the direct employer of two of the injured workers. In Postiglione the High Court was concerned with an appeal against sentence which raised questions of comparison between the sentence imposed on a principal party in a conspiracy compared with that imposed on the appellant, who was subordinate in that conspiracy. Dawson and Gaudron JJ (at 411-412) said: The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [ Lowe -v- R (1984) 154 CLR 606 at 610-11 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [ Lowe at 617-18 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe -v- R, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

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