Inspector Jones v Fernandes Constructions

PROSECUTOR: Mr B Docking of counsel Solicitor: Mr G Henderson PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES: DEFENDANT: Mr S Austin of counsel Solicitor: Mr D Morgan Hallett & Associates

JUDGMENT: - 39 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Monday 15 April, 2002

Matter No IRC 2096 of 2000 INSPECTOR STEVEN JONES v FERNANDES CONSTRUCTIONS PTY LIMITED Prosecution under s 16 (1) of the Occupational Health and Safety Act 1983

1 This matter is a prosecution by Steven Jones, as an inspector of the WorkCover Authority of New South Wales ("the prosecutor"), of Fernandes Constructions Pty Limited ("the defendant") for a breach of s 16(1) of the Occupational Health and Safety Act 1983. Section 16(1) of the Act imposes the obligation on an employer to "ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work."

2 The prosecution arose from an incident that occurred on 12 May 1998 when Steven Melvaine, a steel fixer employed by C&H Reinforcing (NSW) Pty Limited ("C&H"), fell over the edge of a concrete slab that constituted level 2 of a concrete structure being erected for a new Women and Children's Block at Nepean Hospital at Kingswood in the State ("the building"). Mr Melvaine fell 4.7 metres to the ground, sustaining head injuries and abrasions. The defendant had been contracted by the Department of Public Works and Services to erect the building. C&H had been sub-contracted by the defendant to erect steel reinforcing on the building.

3 The charge contained in the summons for prosecution was in the following terms: It is alleged that the Defendant, FERNANDES CONSTRUCTIONS PTY LIMITED, an employer, breached section 16(1) of the Occupational Health and Safety Act, 1983 on 12 May 1998 at premises located at Nepean Hospital, Derby Street Kingswood in the State of New South Wales, in that it failed to ensure that persons not in its employment were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work. In particular, the Defendant failed to ensure that an adequate system of work was in place to protect against persons being exposed to a risk of injury from falling while working on the level 2 concrete slab and level 3 formwork deck located at portion 4 of the building under construction at Nepean Hospital known as the Stage 2 Project.

4 It is necessary at the outset to note that whilst the defendant pleaded guilty, there were significant factual matters arising out of the charge that were in dispute. In pleading guilty, it was conceded by the defendant that there was an inadequate system of work in place on level 3 to prevent persons falling from that level. However, the defendant denied any liability in respect of Mr Melvaine's fall from level 2.

5 I will come to the respective submissions relating to these matters in due course but, essentially, the situation is that the defendant acknowledged there was inadequate scaffolding around the perimeter of level 3 so as to prevent a person falling over the edge of that level. This led the defendant to enter a plea of guilty to the charge of failing to ensure that persons not in its employment were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work. However, this was not a concession that the defendant had "failed to ensure an adequate system of work was in place to protect against persons exposed to a risk of injury from falling while working on level 2". It was the defendant's submission that Mr Melvaine should not have been on level 2, that he had no legitimate reason for being there, that there was evidence Mr Melvaine may have been under the influence of alcohol and, therefore, it could not reasonably be expected that the defendant should guard against such an eventuality and, that there was a timber handrail fixed in place at the point Mr Melvaine is believed to have fallen but which, at the time of the inspection of the incident by WorkCover inspectors, had been removed.

6 The facts in dispute have obvious implications for the defendant's level of culpability and, ultimately, the penalty that might be imposed by the Court.

7 As to the standard of proof to be applied in relation to the facts in dispute, the majority of the High Court in R v Olbrich [1999] HCA 54; (1999) 73 ALJR 1550 said:

[27] As to the standard of proof that should be applied, we should adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369, per Winneke P, Brooking and Hayne JJA and Southwell AJA - that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities".

The evidence 8 Mr B D Docking of counsel appeared for the prosecutor. Mr Docking called evidence from a number of witnesses. The witnesses were as follows: · The prosecutor, Inspector Steven Jones. · Carlos Goncalves, site supervisor for the defendant at the time of the incident on 12 May 1998. · Brian Thomas Woodhouse, project officer with the New South Wales Department of Public Works and Services, who was the construction manager at the Nepean Hospital site on 12 May 1998. · Hugh Howard Bullock, civil engineer, employed by the defendant as project manager at the Nepean Hospital site on 12 May 1998. · Robert William Cody, director of C&H and supervisor at the Nepean Hospital site on 12 May 1998. 9 Mr Docking sought to adduce evidence, through Inspector Jones, of a statement made to him by one Fred Grace who was allegedly working with Mr Melvaine on 12 May 1998. Notwithstanding that such evidence might be regarded as hearsay, Mr Docking referred to s 4 of the Evidence Act 1995, which provides that if proceedings relate to sentencing: (a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters---the direction has effect accordingly.

10 Mr Docking submitted that if the Evidence Act were to apply (and he did not object to the application of s 4(2)(b) in respect of the Grace statement) that he relied on s 65(2)(b) and (c) so as to permit the prosecution to tender the statement of Grace. Section 65(2) provides: (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made.

11 Clause 4 of Pt 2 of the Dictionary to the Evidence Act provides: 4. Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. 12 Mr Docking tendered on the voir dire an affidavit of Carolyn May Blewman, solicitor, deposing to the effort made by the prosecution to locate Mr Grace but without success (efforts had also been made to locate Mr Melvaine but no issue was made of his absence). Mr Docking submitted that the Court should accept that all reasonable steps had been taken to find Mr Grace or to secure his attendance but without success. Mr Docking submitted on that basis, the statement of Grace made to Inspector Jones on 13 May 1998 should be received into evidence.

13 Mr S C Austin of counsel for the defendant, immediately made application for a direction as I understood it under s 4(2)(b) of the Evidence Act 1995 to apply in relation to the statement by Grace. Mr Austin submitted that the prosecution had been on notice for many months that there was a serious contest about the facts in the proceedings and that it was not open to the prosecution to rely on the hearsay evidence of Inspector Jones in relation to that contest. Mr Austin said that the defence had been asking for some time for notification as to what witnesses were to be called by the prosecution and had received no notice until the morning of the hearing. Mr Austin submitted that, in the circumstances, the Evidence Act should apply to the statement of Mr Grace.

14 Mr Austin raised some objection to the nature of the efforts made by the prosecution to find Mr Grace but his main objection to the Grace statement being admitted pursuant to s 65(2)(b) or (c) was that the prosecution had not complied with the notice requirements under s 67 of the Evidence Act which provides: 67. Notice to be given (1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state: (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if section 64 (2) is such a provision---the grounds, specified in that provision, on which the party intends to rely. (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit, and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.

15 Mr Austin submitted that the prosecution had been on notice 13 months prior to the hearing on sentencing that there was an acute factual dispute as between the defendant's position and the information allegedly received by Inspector Jones from Mr Grace. He submitted that if the defence had known earlier than the morning of the hearing that Mr Grace was unavailable to give evidence it may have taken its own steps in relation to securing his appearance. Mr Austin submitted that the defence would be prejudiced if Inspector Jones were allowed to give evidence of matters that were not within his personal knowledge, especially when it had been made clear to the prosecution that there was a serious contest about the evidence.

16 Having heard the parties I ruled that the Evidence Act applied to the proceedings pursuant to s 4(2)(b). Further, I ruled that I was not prepared to dispense with the notice requirements under s 67 and consequently the statement of Mr Grace was not admissible. Clearly, the prosecution had been on notice for a considerable length of time that there was a serious contest regarding the Grace statement. To inform the defendant on the morning of the sentencing hearing that attempts to locate Mr Grace had been unsuccessful and that, therefore, the prosecution would be relying on Inspector Jones in order to have the statement received into evidence was, in my opinion, prejudicial. Accordingly, I was not prepared to dispense with the notice requirements under s 67 of the Evidence Act. 17 The evidence in relation to level 3 was that it was about 8 metres above the ground and persons were working on that level in circumstances where there was no proper fall prevention system in place in accordance with the requirements under the Construction Safety Regulations 1950: 73. Safeguards and accident prevention measures for construction work Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74:

(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m,

(6) where practicable provide overhead protection for persons working below other persons or where there is a likelihood of persons being injured by objects falling from above; such overhead protection shall be by means of timber or other material of strength and construction reasonably adequate to catch, deflect or hold any reasonable weight of material or objects that may fall upon such protective construction,

8. effectively fence in the manner prescribed by these Regulations, all platforms, the open sides of all floors, openings in floors, roofs and platforms into which persons could accidentally walk, the open sides of stairways and stairway landings and all excavations and holes more than 1.5 m deep. 18 Evidence was tendered giving more information about the nature of fall protection. This included a Direction that may be issued by the Department of Industrial Relations in connection with safeguards for persons carrying out the erection and stripping of formwork on the edges of buildings. An extract from a Scaffolders' Guide was also tendered that similarly described the safeguards to be put in place in relation to the erection and stripping of formwork on the edges of buildings. The requirements in the Direction and the Guide were described as follows: (a) heavy duty scaffolding conforming to these Regulations [Construction Safety Regulations] shall be erected to the level at which formworkers are working, fitted with guardrails, toeboards and meshed with steel mesh 50 mm x 50 mm x 2.5 mm diameter wire between guardrails and work platform; or (b) building design shall be such as to enable approved designed scaffolds, fully enclosed with mesh to be placed in position on the building and secured; or (c) formwork design shall be such that a fully enclosed meshed scaffold is attached to the formwork sections at all times; or (d) continuous sections of approved catch platforms shall be provided with no gaps greater than 50 mm between the frames and kept at an angle of approximately 30° to the horizontal sloping into the building, with a horizontal distance of a minimum of 3 metres out. Such platforms shall be kept to a maximum 3 metres below the deck of the formwork being erected or stripped whenever any person is working within 3 metres of the edge of the building; or (e) any other approved safeguards.

19 The type of work being undertaken by C&H on level 3 had been largely completed on level 2. Notwithstanding this it would appear from the evidence that the industry practice, if not a requirement, was that perimeter scaffolding would normally be erected before work commenced on a particular level and would remain there as work progressed to the next levels. The only fall protection on level 2, however, was a timber handrail that the defence contended, on the evidence of Mr Woodhouse and Mr Goncalves, had been fixed in place on the evening prior to the day of Mr Melvaine's fall but which Inspector Jones said was not in place, at the point where Mr Melvaine is believed to have fallen, at the time Inspector Jones inspected the site on 12 May 1998.

20 The state of the evidence regarding the timber handrail is inconclusive. It is not clear whether the handrail was initially fixed in place so as to constitute a barrier and later disconnected so as to leave a gap in the railing around the perimeter of level 2 or whether it was not fixed in the first place. Where a relevant fact is the subject of conflicting evidence and where that evidence is of like probability, the Court should resolve the conflict of fact in favour of the offender: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby P at 699; R v O'Neill [1979] 2 NSWLR 582 at 588. Accordingly, I accept that the handrail was initially fixed and later unfixed. But whatever the position of the handrail it was, in my opinion, an entirely inadequate measure against the risk of someone falling over the edge. Even if the handrail (100 mm x 75 mm) had been fixed in place at what was said to be a height of about 1.3 metres, if someone was working near the edge of the concrete slab on level 2 and was in a crouched position, or for some reason was leaning out over the edge, the handrail would not have prevented a fall. As Mr Austin properly conceded, the timber handrail did not meet regulatory requirements in respect of fall protection measures. Inspector Jones, in his evidence, stated that the timber handrail would be of no use whatsoever as a safety measure to protect against someone falling.

21 As to Mr Melvaine's presence on level 2 it was the prosecution's case that Mr Melvaine was there assisting Fred Grace to finish off a column of steel reinforcing when he fell over the edge of the concrete slab to the ground. Even in the absence of Mr Grace's eyewitness account it appears to be beyond doubt that Mr Melvaine was on level 2 and it was from that level that he fell to the ground. As Mr Austin said "… the most logical inference for the Commission to draw is, Mr Melvaine's fall occurred from level 2 and it occurred from a position approximate to column G20…"

22 Mr Austin, however, submitted that work had been completed on level 2 and there was no reason for Mr Melvaine to be there and, indeed, he was there "contrary to instructions." Mr Austin relied in particular on the evidence of Mr Goncalves who stated in this respect that he had told Mr Cody that level 2 was "off limits", that "all the work was finished on level 2" and that he had checked the columns on level 2 prior to 12 May and found they were in a completed state. Mr Cody, on the other hand, said that there was no "prohibition" on his employees working on level 2 on 12 May 1998 and gave the following evidence in examination-in-chief: Q. With respect to 12 May 1998, do you know what type of work Mr Melvaine was to perform on that day?

A. Yes, he was assisting with the placing of columns.

Q. When you say assisting in the placement of columns, can you just explain who was he to assist?

A. He was to assist Fred Grace, Greg Vermeullen and Jason Waddel.

Q. What was he required to do to perform that role of assisting?

A. Fred was his leading hand. Whatever Fred instructed him to do. The common practice is to drop them down from the deck above and the two people down the bottom receive them and stirrup them up. One man feeds it and the other two work it out.

… Q. …Do you see that there is a column shown in Ex A going vertical?

Q. Is the level at the top of the photograph about an eighth of the way down what you understand was level 3?

Q. Just over halfway down, working from the top of the photograph, where there is a horizontal concrete structure, is that what you understand to be level 2?

A. Yes. Q. Using what you describe as a standard practice when someone is feeding steel?

Q. Where would the two people assisting the locater to do the stirruping work be?

Q. They have to be, on level 2, to perform that role as opposed to level 3?

Q. Do you know whether this shows the column where Mr Melvaine fell?

A. As far as I know it had, but we continually look over the work and you might see a missing tie or a stirrup that is loose and you go around. It is part of the job. It is quality control, I suppose you call it. When you finish something you check it out, go back and have a look and make sure everything is nice and tidy. Q. Do you know if that was required for the particular column shown in photograph 1 of Ex A? A. I would not know exactly.

23 Although Mr Cody said in his evidence that he was not sure whether the particular column it was alleged Mr Melvaine had been working on when he fell had been finished by 12 May 1998, it was put to Mr Cody in examination-in-chief that "… there were other columns to be completed on 12 May 1998 working in the way you described from level 3 with two assistants down on level 2?" Mr Cody replied, "Yes" but he could not recall how many. 24 Mr Austin submitted that given the state of the evidence the prosecution had not proven beyond reasonable doubt that there was any legitimate reason for Mr Melvaine to be on level 2 at the time he fell. In other words, the prosecution had not proven that Mr Melvaine had been exposed to a risk of injury from falling while working on level 2 as the particular of the charge alleged.

25 Of course, the is no eyewitness account of workers, including Mr Melvaine, being on level 2 and no eyewitness account of Mr Melvaine falling. How the accident occurred is, therefore, to be determined on the available circumstantial evidence.

26 Hungerford J encountered a similar situation in Rech v F M Hire Pty Limited (1998) 83 IR 293. At 320 his Honour said: In assessing such [circumstantial] evidence, I have in mind what Dixon J, with whom Latham CJ agreed, said in Martin v Osborne (1936) 55 CLR 367 at 375 - "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference." As Dixon J in that same case added (at 375) - "In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation". That approach to circumstantial evidence was followed by a Full Court (Bauer, Hungerford and Cullen JJ) of the former Industrial Court in Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at 152-153.

27 As to the evidence in this matter, I note the following: · Mr Cody's evidence that there was still work to be completed on level 2 as at 12 May 1998. · That on 12 May Mr Melvaine had been assigned by Mr Cody the task of assisting with the placing of columns. This involved one person on the upper level dropping down steel reinforcing bars to two workers on the lower level to receive them and "stirrup them up". The lower level in this case was level 2. · That there is no disagreement Mr Melvaine fell from level 2. · That despite Mr Goncalves' evidence he told Mr Cody level 2 was off limits on 12 May 1998 - something Mr Cody denies - no steps were taken by the defendant to ensure that workers would not to go onto level 2. Indeed, according to Mr Cody's evidence there was a ladder between level 2 and level 3 thereby enabling access to level 2. · There was also the evidence of Inspector Jones that there were no signs in place warning persons against working on level 2. The defendant's Safety Manual specified that appropriate warning signs should be erected at the start of each project and that during the life of the project the site supervisor was to assess where any additional warning signs might be required. 28 As to the conflicting evidence about whether Mr Goncalves told Mr Cody that level 2 was off limits on 12 May 1998, I prefer the evidence of Mr Cody. He was quite clear that there was no prohibition against his employees working on level 2 on 12 May and that he had in fact assigned workers to a task that would necessitate the presence of workers on level 2. Mr Goncalves, on the other hand, was more equivocal. He said that "as far as I can recall" there was no reason for workers of C&H to be on level 2 and that "I believe that I spoke to Bob Cody and told him level 2 was off limits (my emphasis). In his statement to Inspector Jones given on 13 May 1998, Mr Goncalves said "…I am not sure that I told Bob Coady (sic) not to go into level 2 portion 4 besides the old kitchen", which was the area on level 2 where there was no perimeter scaffolding.

29 Mr Goncalves said he had instructed that level 2 was off limits on 12 May because "we did not have scaffold so it was not safe to be there". However, there was no scaffold on level 3 either and level 3 was not off limits on 12 May 1998. Moreover, one wonders what was the point of erecting timber handrails as a safety precaution against falls, and ensuring that they were securely fastened, if there was no more work to be done on level 2 and it was to be off limits.

30 In my opinion, the rational inference to be drawn from the evidence is that there was no prohibition against workers being on level 2 on 12 May 1998 and that Mr Melvaine was present on level 2 on 12 May 1998 for the purpose of performing work. I find that the prosecution has established this beyond reasonable doubt.

31 The next issue concerns whether Mr Melvaine was under the influence of alcohol at the time of his fall. In this respect, Mr Cody gave evidence that he tended to Mr Melvaine while he was on the ground following the fall and had no reason to think Mr Melvaine was intoxicated and did not smell any alcohol on Mr Melvaine. Mr Cody said that Mr Melvaine had been at work since 6.30 am and the fall did not occur until some time between 11.00 am and 12 noon and that he (Mr Cody) did not know where Mr Melvaine would obtain any alcohol.

32 Mr Goncalves gave evidence that when he went to see Mr Melvaine immediately after the fall Mr Melvaine's speech was "Very slurred", although I consider this could easily be put down to the effects of the fall. However, there is the evidence of the notebook entry of Sergeant G J Salafia of the New South Wales Police Service and a related entry created by Sergeant Salafia in the COPS computer reporting system, which described the police investigation of the incident. The COPS entry stated: He [Melvaine] was spoken to by police and has no recollection of how he became to be injured. He has no recollection of falling or slipping from the scaffolding. It must be noted that whilst speaking to Melvaine, a detection of alcohol could be smelt on his breath. He was questioned regarding the alcohol and admitted consuming 6 schooners of beer at two pubs in Mt Druitt the previous night and further had consumed half a bottle of scotch with coke.

33 Mr Austin submitted that, particularly given the police material, there is the distinct possibility that Mr Melvaine was under the influence of alcohol at the time of his fall and that intoxication may have caused him to fall. He submitted that the prosecution had not ruled out this possibility beyond reasonable doubt. On the evidence, I agree with Mr Austin. There did exist the possibility that alcohol was a factor in causing Mr Melvaine to fall.

34 Mr Austin submitted there were other factors the Court should take into account in mitigation. These were firstly, that it was the Department of Public Works and Services that was responsible for site safety generally, including the erection of the perimeter scaffolding to protect against falls and that, notwithstanding frequent requests by the defendant, the Department failed to erect the scaffolding. Secondly, the defendant was under pressure from the Department to make progress on the job, regardless of the absence of perimeter scaffolding. Thirdly, the defendant had been operating in the construction industry for 22 years, including on major projects, and in that time had only one minor conviction under the Construction Safety Act in 1985. Fourthly, that the defendant had pleaded guilty, albeit limited to a failure in respect of level 3, and had cooperated with the WorkCover Authority.

35 As to whose responsibility it was to erect perimeter scaffolding, I am satisfied the responsibility lay with the Department of Public Works and Services. In the cross-examination of Mr Woodhouse, the construction manager on the site for the Department, the following exchange occurred: Q. You are aware aren't you, that in early April Fernandes Constructions wrote to the Department requesting that scaffolding be erected around the perimeter of that portion of the building [where Mr Melvaine fell]?

Q. Because some months earlier there had been a decision taken that the erection of perimeter scaffolding would fall within the province of the Department?

Q. The Department was to take all responsibilities for scaffolding?

36 Further, in Mr Bullock's evidence he referred to a letter written by him dated 11 March 1998 to Mr B Hilton of the Department formally recording that the responsibility for the erection of the perimeter scaffolding was "solely for the Department". Mr Bullock also referred to another letter from the Department dated 6 April 1998 where the Department indicated its intention to provide perimeter scaffolding.

37 The perimeter scaffolding had not been erected up to the time Mr Melvaine fell. This was despite repeated requests by the defendant to have it erected. This is clear from the evidence of Mr Goncalves and Mr Bullock. Mr Bullock was asked in cross-examination about a conversation he had with Mr Woodhouse regarding the absence of scaffolding: Q. Now do you remember the day you were on site, on the Monday 11 May 1998 as you have told us?

Q. Now when you saw Mr Woodhouse on the site that day did you discuss at any stage the progress of the work and the continued absence of scaffolding?

A. We were actually standing very close to the place where Mr Melvaine fell and we had quite a heated argument about where the scaffold was and the progress of the job.

Q. What time of the day was that conversation with Mr Woodhouse, do you recall?

A. I would say it was approaching five o'clock. I do recall that the shadows were getting quite long and it was approaching darkness. … Q. You said you had a heated argument or debate?

A. Well, on my part it was swearing, sort of. I was asking where the scaffold was and why wasn't it here and we had sort of been stuffed around by not having it here.

… Q. Mr Bullock can you tell us what you said using "he said" or "I said" rather than a general description of it?

A. I said, "Where the fuck is the scaffold? We have been stuffed around for weeks. Nothing is happening" and his general response was that it was either coming in and we had to keep moving ahead and "When are you going to pour the next concrete for level 3. You appear to be somewhat divergent on that issue."

38 In re-examination Mr Bullock was referred back to questions in cross-examination regarding the meeting with Mr Woodhouse relating to the scaffolding: Q. Do you recall you gave the Court some evidence about it was coincidence you had discussions with one of the Department's personnel when Mr Melvaine ultimately fell and this was a conversation where you raised again the need for scaffolding?

Q. You said something like after you raised it nothing happened. You were told it was either coming or when the pour took place for level three for the concrete there were divergent views on that issue. Why do you say there were divergent views?

A. You might have misunderstood what I said. I was particularly interested in giving definite advice about scaffolding to Brian Woodhouse but we had a circular discussion. He was more interested in talking about when we were going to be pouring the concrete for that particular level.

39 Mr Goncalves also gave evidence that there were discussions with the Department regarding the absence of scaffolding and written requests made by the defendant for the scaffolding to be erected.

40 Mr Woodhouse could not recall the conversation on site with Mr Bullock on 11 May 1998 regarding the continued absence of scaffolding but he did agree in cross-examination that in the weeks preceding 12 May Fernandes Constructions had been invited to erect temporary handrails: Q. Inviting Fernandes to erect temporary handrails is something that you would have done over the preceding weeks, wouldn't it?

Q. Because you knew that there should have been scaffolding around the perimeter of that construction?

41 Mr Woodhouse also agreed that the Department had been requested in writing to supply the scaffolding.

42 It was also Mr Woodhouse's evidence that he did not think it was proper to erect scaffolding at the time he was requested to do so because it had been raining for some weeks and the ground was very muddy and unstable. He also said there was a problem evident in the formwork that was obstructing the erection of the scaffolding. Mr Goncalves agreed in his evidence that "We had a lot of rain on that site". Mr Jones also said in his evidence that Mr Goncalves and "one of the representatives of the Department" had told him that the perimeter scaffolding had not been erected because of the weather. I note, however, the weather did not prevent other activity on the site, including the actual construction of the building going ahead. I note further, that following the incident on 12 May 1998 the WorkCover Authority stopped construction work until such time as all safety requirements, including the erection of perimeter scaffolding, had been met. The scaffolding was then erected.

43 I do not find the reason given by the Department for not erecting the safety scaffolding, namely the state of the weather, at all convincing. In any event, if the scaffolding could not have been erected because of the wet and muddy conditions, the construction work should not have continued in the absence of proper safety scaffolding. As to the formwork obstruction referred to by Mr Woodhouse, Mr Bullock was quite clear in his evidence that there was no real obstruction. He said that after the incident on 12 May 1998 and when it became necessary to erect the perimeter scaffolding there might have been the need to "crop with a power saw" some of the timber but that it "would have only taken a moment or two".

44 Although it is clear from the evidence that the responsibility for erecting the scaffolding lay with the Department, it is also clear that the defendant was acutely aware of the need for safety scaffolding. Mr Bullock agreed in his evidence that construction work should not have been proceeding without the perimeter scaffolding in place. Further, the defendant's Safe Work Method Statement, required the defendant to: Erect safety handrails as applicable to the type of work. On multi-storey work keep formwork 3 metres clear of building edge until safety scaffolding and/or screens are erected.

45 The Safe Work Method Statement also provided that the control measures for working at heights were "secure scaffold/platform, secure ladders, secure handrails". Without such measures the risk was classed as "1", that is "Death, permanent disability or major property damage".

46 In its defence, it must be said the defendant made repeated requests of the Department for the scaffolding to be erected and was obviously concerned that the Department had not put the scaffolding in place.

47 The reason why the defendant continued with the construction work in the absence of safety scaffolding was explained in Mr Bullock's evidence. Mr Bullock stated that the defendant had come under pressure from the Department to progress the job quickly. In the cross-examination of Mr Bullock the following evidence was given: Q. Why is it that the defendant company under your control was proceeding with the construction without perimeter scaffolding in place?

A. Well, perhaps I can best explain, on that project, we were put under a lot of pressure in terms of progress. Public Works emphasized to us on several occasions that the project had to be completed by a particular date and in fact at the start of the job it had been said to us that if it wasn't finished in a certain time, then heads would roll and I think on a daily basis we were pushed about programme and asked if things were going to be happening and I guess that we had in mind that we better get on with it because at that particular time the Public Works represented 30 per cent of our revenue sources of our company and we didn't want to appear not to be doing the right thing.

Q. You were the recipient on behalf of the defendant of that pressure?

Q. Who was the conduit at the Department who was exerting that pressure upon you?

A. Well, Brian Woodhouse was one and Bernie Hilton as well.

A. Essentially verbal. We also would have, say, a … weekly meeting [at which] there was a portion dedicated to programme discussions and certainly at those meetings we were put under pressure to explain how we would go faster or improve our productivity.

48 Mr Woodhouse was asked a number of questions in cross-examination about the pressure to complete the job: Q. Is it the case that as at April 1998 construction was running behind schedule?

Q. And would it be the case that there was pressure on all concerned for the work to be brought up to the relevant rate of progress, or the programme that had been set for the rate of work?

Q. But despite efforts to maintain the rate of progress, it had fallen behind schedule, hadn't it?

Q. And there was some pressure on all people involved on the site to not just maintain that rate, but increase, catch up on the schedule?

Q. And that pressure was being exerted on you from above?

Q. And it was being exerted by the Department on its subcontractors?

Q. In fact is it the case that in one of your meetings with Hugh Bullock before 12 May 1998 you mentioned generally words to this effect: "But if things weren't kept on schedule, heads are going to be rolling"?

49 In re-examination, Mr Woodhouse was asked further questions about the issue of pressure: Q. You confirmed that there was pressure on you to progress the work. Who do you actually mean there was pressure from?

A. Well, there was a deadline for - a commitment given to have the work completed and we would meet that programme, try to maintain that programme.

A. This came from the Department of Health. They wanted the building opened. It came through the chain.

Q. That's what I'm trying to establish. Who were you dealing with concerning this pressure?

A. I was dealing through John Corbett who was the Project Manager for the Department.

Q. Is he the person you say who was placing pressure upon you from above?

A. He was one of the people who were above my chain of command, yes.

A. There was Warwick Farley and it then goes through to the Wentworth Area Health Service.

Q. So you are saying that all of these persons and bodies were placing pressure on you?

A. Well, unduly, yes. Q. You say unduly, what do you mean by that?

A. Well, they all wanted the building completed as quickly as possible.

Q. In what form, or forms, was the pressure taking that was placed on you?

A. There were reports which were gone through. There were meetings which were held between the Department and the Wentworth Area Health Service and the New South Wales Health Department about the progress of the work and that we were falling behind those deadlines and that the feedback was that they were concerned about the rate of progress not being up to the accepted speed of progress on the job to have it completed.

50 It is convenient at this point to summarise the relevant evidence as I have found it to be: 1) The prosecutor was at all material times an inspector appointed pursuant to the provisions of the Occupational Health and Safety Act 1983 and empowered by s 48 of that Act to bring proceedings in this matter. 2) The defendant was an incorporated company with its registered office located in New South Wales. 3) The defendant was contracted by the Department of Public Works and Services to erect a concrete structure for the new Women and Children's Block at Nepean Hospital, Derby Street, Kingswood. The Department was responsible for the project management of building and construction work at the Nepean Hospital construction site and it was responsible for erecting perimeter scaffolding on the building as a measure to prevent persons and materials falling from the building. 4) The defendant subcontracted steel reinforcing placement work on the building to C&H Reinforcing (NSW) Pty Ltd. 5) Steven Melvaine was a steel fixer employed by C&H. 6) On 12 May 1998 Mr Melvaine fell from level 2 of the building to the ground, sustaining head injuries and abrasions. 7) The Construction Safety Regulations require fall protection measures to be erected on buildings of the type under construction at the Hospital site. The usual form of fall protection is perimeter scaffolding designed to prevent persons and materials falling from heights. 8) No perimeter scaffolding was in place when Mr Melvaine fell on 12 May 1998. The only measure of fall protection on level 2 where Melvaine fell was a 100 mm x 75 mm timber handrail 1.3 metres from the floor of level 2. The timber handrail was an inadequate measure against persons and materials falling from level 2 of the building under construction. 9) No perimeter scaffolding was in place on level 3 on 12 May 1998. 10) The defendant knew that construction work should not have been proceeding on levels 2 and 3 without appropriate fall protection in place. In this respect, given that columns would inevitably be placed near the edge of the concrete slab of each level, it was readily foreseeable that persons working on levels 2 and 3 might be working close to the edge of the slab. 11) There is the possibility that Mr Melvaine was affected by alcohol at the time he fell on 12 May 1998. 12) The rational inference to be drawn from the evidence is that there was no prohibition against workers being on level 2 on 12 May 1998 and that Mr Melvaine was present on level 2 on 12 May 1998 for the purpose of performing work. I find that the prosecution has established this beyond reasonable doubt. 13) The defendant had failed to ensure that workers did not gain entry to level 2 and failed to erect warning signs prohibiting entry onto level 2 on 12 May 1998 in accordance with its own Safety Manual. Further, a ladder was in place enabling access to level 2 from level 3 on 12 May 1998. 14) Whilst it had responsibility for doing so, the Department of Public Works and Services failed to erect the perimeter scaffolding up to the time of the incident on 12 May 1998, despite repeated requests by the defendant that it do so. 15) Whilst the weather may have been a consideration in the Department's failure to erect the scaffolding, there was no convincing evidence that it could not have been erected, despite the weather. 16) The Department's desire to complete the work according to deadlines had the effect of placing the defendant under pressure and was a factor in the defendant's decision to continue with the construction work in the absence of perimeter scaffolding. The contract to erect the building on the Hospital site constituted about 30 per cent of the defendant's revenue and the defendant did not wish to jeopardise this or jeopardise the prospect of future contracts with the Department. 17) The erection of the timber handrail as a substitute for perimeter scaffolding was the Department's proposal, designed in my opinion, to stem the repeated requests of the defendant to erect the scaffolding. 18) The defendant has a minor previous conviction for an offence that occurred 17 years ago. 19) The defendant pleaded guilty in respect of the charge relating to level 3. 20) The defendant cooperated with the WorkCover Authority.

Consideration 51 The particular of the charge against the defendant was that it failed to ensure that an adequate system of work was in place to protect against persons being exposed to a risk of injury from falling while working on level 2 and level 3 of the building under construction. The defendant acknowledged, by its plea of guilty, its failure in respect of level 3. As I understand the defendant's position in this respect, it accepts that its failure to have in place appropriate measures to prevent persons falling from level 3 was a failure to ensure that persons not in its employment were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work.

52 There was no suggestion that any person actually fell from level 3 and suffered injury. So, in pleading guilty the defendant implicitly accepted, it seems to me, that it was not any incident causing injury that constituted the actual detriment to safety but rather it was the failure to have in place perimeter scaffolding in order to obviate the potential risk of someone falling over the edge whilst working on level 3.

53 This approach is consistent with what was said by the Full Bench in Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at 157-159: … Her Honour focused attention on the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondents were charged. We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That overemphasis led to a misunderstanding by her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objectively drawn therefrom. Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose "(t)o secure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. … … … The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. …

54 The defendant denies any liability in respect of Mr Melvaine's fall from level 2. The defendant submitted that Mr Melvaine had no business being on level 2 and that there was the possibility that he was affected by alcohol, which may have caused or contributed to his fall.

55 The issue here, of course, is not whether any failure on the part of the defendant caused Mr Melvaine to fall, but rather whether there was any act or omission on the part of the defendant constituting a failure to ensure that persons were not exposed to risks to their health or safety. As Hungerford J so succinctly put it in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) [2001] NSWIRComm 90 at [20]: (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based.

56 As I have already stated, the alleged failure of the defendant in this case was that it failed to ensure that an adequate system of work was in place to protect against persons being exposed to a risk of injury from falling while working on levels 2 and 3. What the defendant argued, however, was that there was no exposure to risk on level 2 because work had finished on that level, Mr Melvaine had no legitimate reason for being on level 2 and instructions had been issued that level 2 was off limits. Moreover, there was the possibility that Mr Melvaine had been affected by alcohol and that it was not reasonably practicable for the defendant to have to guard against such an eventuality.

57 On the evidence, I have found that Mr Melvaine had a legitimate reason for being on level 2 on 12 May 1998; he was performing work there. If the defendant had erected, or caused to be erected, the appropriate fall protection measures Mr Melvaine, and other workers who potentially may have been working on level 2, would not have been exposed to risk of injury from falling while working on that level.

58 I find that the offence charged in the summons prosecution filed on 12 May 2000 has been made out and I will enter a verdict accordingly.

59 That brings me to the question of the defendant's culpability for the purpose of determining sentence. In WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 at par 19 and after referring to Benbow v Converquip Pty Ltd [2001] NSWIRComm 85 at par 42, WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at pp 185-187 and Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 at par 82, Hungerford J summarised the proper approach to be taken to sentencing as follows: In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce.

60 Essentially, the offence involved a failure by the defendant to ensure workers were not exposed to a risk of injury from falling while working on level 2 and 3 of a building under construction. On the face of it the offence is serious. Workers should not be put at risk of injury or death whilst working at heights in circumstances where the protection against falling is absent or grossly inadequate.

61 The defendant was well aware of the dangers presented by the absence of perimeter scaffolding and was anxious that it be put in place as soon as possible. Nevertheless, the defendant allowed construction work to continue without adequate fall protection having been erected.

62 The defendant seeks to have a number of matters taken into account in mitigation. The first is the possibility that Mr Melvaine was under the influence of alcohol, which may have caused or contributed to, his fall. Whilst this may have been so - and I am prepared to take this into account in the defendant's favour - if proper fall protection measures had been in place, affected by alcohol or not, it is most unlikely that Mr Melvaine would have been exposed to risk of injury from falling to the ground.

63 The reason I am prepared to take the alcohol factor into account in favour of the defendant is that an incident causing injury will, no doubt, be some measure of the degree of severity of the detriment to safety. Where a person who has been injured has, himself or herself, contributed to the severity of the detriment to safety this may be taken into account in determining the defendant's culpability.

64 However, that alcohol may have been a factor, does not excuse the defendant from failing to ensure proper fall protection was in place on level 2. I adopt, with respect, the following comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at p 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 65 The defendant asks that the Court take into account the existence of a handrail on level 2 as a measure against persons falling. I have already made my view known about the efficacy of the handrail; it was quite inadequate. Nevertheless, I expect it was better than no protection at all and is, therefore, a matter I should take into account in mitigation.

66 The next matter, it was submitted, I should take into account in mitigation was the fact that the defendant made repeated requests to the body responsible for erecting the scaffolding, namely, the Department of Public Works and Services, but to no avail. However, the defendant could obviously have stopped the construction work until the fall protection had been put in place. Mr Austin submitted that this was an artificial course of action because the defendant was under considerable pressure from the Department to make progress on the job and was concerned that if it did not do so it would put at risk a significant source of revenue and jeopardise future contracts with the Department.

67 The implication of Mr Austin's submission is that any sentence that I might otherwise impose on the defendant for exposing persons to a serious risk of falling off a building under construction should be reduced because the defendant was under pressure to progress the work and was concerned about its source of income. Ultimately, work was stopped on the site until the appropriate safety measures were put into place and both the Department and the defendant had to accept whatever the consequences were of that delay.

68 I do not accept there should be any mitigation of the defendant's sentence for reasons relating to a failure by the Department to meet the defendant's repeated requests to erect the scaffolding and because the defendant was under pressure from the Department to progress the work. It was clearly an option for the defendant to refuse to continue with the construction work in the absence of fall protection. Indeed, in my opinion, that is the option the defendant should have pursued. To mitigate the sentence because the Department wanted to press ahead with the construction program without adequate safety measures in place, and because the defendant felt obliged to do so essentially for financial reasons, would be to undermine the clear public policy underpinning s 16 of the Occupational Health and Safety Act that is, ensuring the safety of persons at work.

69 Mr Austin submitted that I should have regard to the fact that others, in particular C&H, were not charged with any offence arising out of the incident on 12 May 1998. I hasten to add it was not the case that the defendant resisted responsibility for the failure giving rise to the charge on the basis that others should be held accountable but not it. As I understood the submission it was to the effect that given C&H had not been charged with any offence under the Occupational Health and Safety Act in relation to the incident on 12 May 1998, this gave rise to a justifiable sense of injustice. I was informed that the Department is being prosecuted.

70 In Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 a Full Bench of the Commission (Bauer, Hill and Marks JJ), in considering a number of mitigating factors, decided that the absence of prosecution of other parties who played an instrumental part in causing the detriment to safety was a mitigating factor. In Walco Hoist Rentals, Wright J, President examined the judgment of the Full Bench in Nesmat as to its application to the matters before him. At pars 31, 33 and 34 his Honour said: 31 …I do not consider that the fact that the prosecution did not proceed against Abbatroy Pty Limited or Mr Jurd is of great relevance to these proceedings. The prosecution has submitted that on the basis of a bona fide understanding that Abbatroy Pty Limited was not in any relevant sense an employer at pertinent times, it did not consider it was in a position to proceed with the prosecution. This is not therefore a circumstance of the kind comparable to those which were considered relevant by the Full Bench in the Nesmat Pty Limited at 322. In any event, as I understand the decision of the Full Bench in Nesmat Pty Limited it was not held that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant.

33 The Court was there reflecting upon a number of considerations, both objective and subjective (but particularly the former), which it concluded had not been taken into account sufficiently at first instance. Particularly relevant was the role of the other potential defendant which had not been charged and its role, both independently and contributory, in the events which had led to the defendant's conviction. Such matters, as is clear from the second last paragraph cited, were crucial to an assessment of the culpability of the defendant. The reference to the "justifiable sense of grievance" is also relevant to the application to the appeal principles which were applicable at the time of that appeal (for example, House v The King (1936) 55 CLR 499 and Cranssen v The King (1936) 55 CLR 509) which are different to those now applicable under s 196 of the Industrial Relations Act 1996 and, for example, Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 75. This analysis is consistent with the approach of Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and 1106, 4 February 2000) at 104 - 107. 34 The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them.

71 It seems to me that the fact C&H was not prosecuted, on its own, is not a basis upon which I could mitigate the penalty imposed on the defendant. Further, as Walton J, Vice President observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383 at 437-438: 161 Embarking upon an inquiry as to whether prosecutions should have been commenced or continued against various entities, or whether those prosecutions may have been successful, would involve the Court conducting a procedure which would be, as the prosecutor submitted, tantamount to conducting a trial of the other entities. In any event, the Court would, if it adopted the contentions of approach by the defendants, be required to make unqualified adverse findings concerning an entity which had no opportunity to answer the allegations made against it. Further, the inappropriateness of the procedure is further demonstrated by reference to the nature of the material relied upon for such findings which may be inadmissible against those entities in a defended prosecution and could not be properly challenged or tested. 72 In sentencing the defendant, and in order for me to have regard to the fact that C&H was not prosecuted, there has to be some "inter-related culpability" on the part of C&H in the failure by the defendant. In other words, that C&H may have independently failed to ensure that an adequate system of work was in place to protect its employees being exposed to risk of injury from falling while working on level 2 and level 3 but is not prosecuted, is not a basis upon which to mitigate the penalty imposed on the defendant. On the other hand, if I had found that the defendant had given instructions to C&H not to allow employees onto level 2 on 12 May 1998 and C&H had ignored those instructions, and its employees had been exposed to risks to their health and safety, that may have been a matter to be taken into account in mitigation. That is not a finding I have made and, as far as I can ascertain, there is no other instance of "inter-related culpability". Accordingly, I do not propose to mitigate the penalty to be imposed on the defendant by taking into account the non-prosecution of C&H.

73 In relation to deterrence, the associated principles were recently discussed by a Full Bench of this Court in Capral Aluminium at [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. As to general deterrence, it is a matter of great concern that on a mainstream construction project, proper fall protection measures were not put in place. It does not seem to me that either the defendant or the Department or C&H considered that the safety of workers should come first in the construction of a building. The need for general deterrence in these circumstances is, in my opinion, undeniable.

74 As to specific deterrence, the defendant was well aware of its failure to ensure workers were not exposed to risks to their health and safety. Yet it submitted to pressure from the Department to maintain that exposure. I would not expect the defendant would ever submit to such pressure again but I consider the approach I should take to penalty in these circumstances is best reflected in the statement of Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 where his Honour said: the fundamental duty of the Court in this important area of public concern … [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.

75 There are a number of subjective considerations I must take into account in sentencing. Firstly, I consider that despite the minor conviction in 1985 the defendant has a good safety record given the inherently dangerous nature of the industry in which it operates. Secondly, I accept that the defendant has cooperated with the WorkCover Authority in its investigation of the incident on 12 May 1998. The third consideration is the defendant's plea of guilty. The prosecution conceded there should be "a significant discount on the guilty plea." However, Mr Docking contended that any available discount had been eroded by the fact that the guilty plea only related to level 3 and not level 2. I agree there has been some erosion of the utilitarian value of the guilty plea. I consider, therefore, the discount available should be towards the lower, rather than the upper, end of the available range.

76 In R v Thomson; R v Houlton (2000) 49 NSWLR 383 the Court of Criminal Appeal considered the relevant range of discount that ought be afforded a defendant for entering a guilty plea. A factor identified as being important to that consideration were utilitarian considerations such as improved efficiency and effectiveness of the criminal justice system that may arise from an early plea.

77 As Walton J Vice President, observed in WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25, in relation to the judgment in R v Thomson; R v Houlton: 77 That judgment has been adopted and applied by Full Benches of this Court on several occasions: State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218; Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 and 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. I shall consider the defendant's plea of guilty in light of the Full Bench authorities of this Court, binding on me, set out above (although I note that the High Court of Australia has recently re-considered various aspects of guideline judgments in Wong v The Queen; Leung v The Queen (2001) 76 ALJR 79).

78 I adopt, with respect, the same view as Walton J; namely, I consider that I am bound by the Full Bench authorities of this Court in relation to the approach to be taken to a guilty plea by the defendant.

79 In light of the defendant's prior conviction, the maximum penalty in this case is $825,000. That is a very significant penalty to impose on a corporation but it reflects the community's concern about breaches of the occupational health and safety laws, which in this case was s 16(1) of the Occupational Health and Safety Act. The offence committed by the defendant in this case does not fall into the "worst" class of cases but it is, nevertheless, serious as Mr Austin conceded. I consider an appropriate penalty in this case is $140,000. On this amount I propose to allow a discount of 15 per cent.

Orders 80 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 $119,000 with a moiety to the prosecutor. 4) The defendant shall pay the prosecutor's costs in an amount as agreed or, in default of agreement, as assessed.

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