Inspector Jones v Fernandes Constructions - [2002] NSWIRComm 71 - NSWIRComm 2002 case summary — Zoe

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Inspector Jones v Fernandes Constructions

[2002] NSWIRComm 71

Industrial Relations Commission (NSW)|2002-07-01|Before: Boland J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Boland J

Source

Original judgment source is linked above.

Judgment (131 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Jones v Fernandes Constructions [2002] NSWIRComm 71 PROSECUTOR Inspector Steven Jones PARTIES : DEFENDANT Fernandes Constructions Pty Limited FILE NUMBER: IRC 2096 of 2000 CORAM: Boland J CATCHWORDS : Occupational Health & Safety - Prosecution under s 16(1) of the Occupational Health & Safety Act - Plea of guilty - Significant factual dispute arising out of charge - Unavailability of person to give evidence - Application of Evidence Act to sentencing proceedings - Evidence Act applied to specified matters - Persons exposed to risk of injury from falling off building under construction - Person may have been affected by alcohol - Whether penalty should be mitigated because of failure of others - Deterrence - Subjective factors - Penalty imposed - Costs Construction Safety Act 1912 (R) LEGISLATION CITED : Construction Safety Regulations 1950 (R) Evidence Act 1995 Occupational Health and Safety Act 1983 (R) Benbow v Converquip Pty Ltd [2001] NSWIRComm 85 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, (2000) 99 IR 29 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 R v Thomson, R v Houlton (2000) 49 NSWLR 383 CASES CITED : Rech v F M Hire Pty Limited (1998) 83 IR 293 R v Olbrich [1999] HCA 54, (1999) 73 ALJR 1550 R v O'Neill [1979] 2 NSWLR 582 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 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 WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 HEARING DATES: 03/12/2002 DATE OF JUDGMENT: 04/15/2002

[44]

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.

[101]

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.

[104]

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. …

[122]

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.