Objective Features
73The corporation was charged, in an amended application for order, under s 10(1) of the Act in its capacity as a controller of premises. It was an agreed fact that, at the relevant time, the corporation, as trustee for the trust, was exercising control over the premises as the owner of the premises. By its ownership of the premises, the corporation had the power to direct and compel corrective action to ensure safety within the operation of s 10(1) of the Act: WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277 at [196] ('McDonald's'). By s 26(1) of the Act, Mr Chapman, as a director of the corporation, was charged with the same offence.
74The nature and extent of the duty created by s 10(1) was considered by a Full Bench of this Court in Inspector Walker v Roads and Maritime Services [2012] NSWIRComm 105. The Full Bench found, at [23] to [25]:
23 The defendant's contentions invited a narrow approach to the construction of s 10(1), confining the duty imposed by that section to the duty of controllers of premises to ensure that the physical or inherent condition of the premises, when being used as a place of work, is such that the premises are safe and without risk to health. Such a construction necessarily reads out of the section any duty on controllers to ensure that the systems of work used in conjunction with the premises do not result in the premises becoming unsafe. The defendant's approach did not envisage that the safety of premises could be affected by the activities occurring thereon. Rather, the safety of premises was confined solely to the attributes of the premises themselves.
24 In inviting that narrow approach to the construction of s 10(1), the defendant focussed its submissions upon the meaning of the concept of "[a] person who has control of premises" and the definition of the "premises" which that person must ensure are safe and without risks to health. In approaching the construction of the section in that manner, the defendant did not place any great emphasis on the words "used by people as a place of work".
25 Under s 10(1), a person commits an offence where that person has control of premises as defined, the premises are used by people as a place of work and the person fails to ensure that the premises are safe and without risk to health. The eastern shoulder of the F3 Freeway at Warnervale, when not being used as a place of work, was unlikely to be inherently unsafe. However, when that premises was used by people as a place of work, the nature of the premises, in that context, had to be reconsidered by the controller and steps taken to ensure that it was safe for those performing work there. It is our view that the defendant's approach to the construction of s 10(1), confining the duty under that section to a duty to ensure the premises are not inherently unsafe, involves a considerable reading down of the section. However, it is unnecessary, given the conclusions reached, to offer any further view as to the question of construction.
75Whilst the Full Bench did not make a conclusive finding as to the construction of s 10(1) and the extent of the duty created thereunder, it is suffice to say, for the purposes of this judgment, that the extent of the obligation on controllers of premises under s 10(1) of the Act is limited to those risks that arise in relation to the "premises" (although is not necessarily confined to the physical nature of the premises, per se). In that sense, the obligation under s 10(1) is distinct from that which arises under s 8(1), which is concerned with the work being conducted at a premises. The consideration of the objective seriousness of the offence in these matters shall proceed on that basis.
76The Court must first, and primarily, consider the objective seriousness of an offence when sentencing under occupational health and safety legislation. I discussed the principles applicable to a consideration of the objective seriousness of an offence in Ullrich at [43] to [45].
77When constrained by the particulars of the charges, the relevant risk in the present matters was the risk that persons at work at the premises detaching evaporator units, in particular Mr Smith, would be struck by an evaporator unit.
78This matter concerns a failure to ensure that the premises, being used by people as a place of work, were safe and without risks to health. In particular, the defendants failed to ensure that the activities occurring at, or the systems used in conjunction with, the premises did not result in the premises becoming unsafe. The measures which would have obviated the risk, as described in the particulars, were as follows:
(1)Ensuring the evaporator unit was securely rigged prior to its attachment points being cut;
(2)Ensuring that work done to detach and remove the evaporator unit took place under the supervision of a person with adequate skills and qualifications as a rigger; and
(3)Ensuring that work being done to detach and remove the evaporator unit was halted until such time as there was a system in place that ensured the unit was adequately supported.
79There are a number of factors which increase the objective seriousness of the offence including the foreseeability of the risk, the seriousness of the injury suffered and the availability of simple remedial measures (see Cross City Tunnel at [191(i)] to [191(iii)]).
80Work was being undertaken by persons at the premises for the purpose of evaluating the suitability of redeveloping the premises from a former abattoir site into a mushroom farm. The premises housed large, heavy evaporator units within its former cool rooms, which units were suspended above the floor. The incident occurred in the course of work which was being carried out to alter the premises for that purpose by way of the removal of the evaporator units.
81The nature of the work being undertaken at the premises, which involved the rigging of evaporator units in order to detach them from the walls, was work which was defined, by cl 246B of the Regulation, as "high risk". As such, it was work for which appropriate qualifications were required. The failure by the defendants to ensure that the work occurring at the premises was supervised and/or undertaken by a person with such qualifications was, on any objective consideration, a serious breach of the Regulation. Indeed, there was no person present or working at the premises at any stage on the day of the incident with any relevant or appropriate rigging qualifications (nor was any such person consulted at any time prior to the incident). That is relevant to a consideration of the objective seriousness of the offence in these matters: Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304; (2006) 157 IR 103 at [25].
82The degree of foreseeability of a risk to safety is a significant factor to be taken into account when assessing the level of culpability of a defendant. Hence, the existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a relevant factor in the assessment of the gravity of the offence and will necessarily result in an offence being more serious in nature: Cross City Tunnel at 191. In considering the question of foreseeability, the Court must assess whether the risk of harm was conceivably foreseeable to the reasonable person in the position of the defendant, and not whether the defendant subjectively foresaw the risk: Environmental Protection Authority v N (1992) 26 NSWLR 352 at 358 and 359 and Inspector Stephen Charles v Premier Precast Pty Limited [2009] NSWIRComm 136 at [9].
83The risk as defined in the charges, namely, that persons at work at the premises detaching evaporator units, in particular Mr Smith, would be struck by an evaporator unit, was foreseeable for a number of reasons:
(1)The procedure for the task of detaching evaporator units at the premises was developed spontaneously, or 'on-the-go', at the time the first evaporator was being removed from Cool Room No 3 (and was altered during the process of that removal to add the use of acrow props). There was no written safe work method statement developed for the task prior to it being undertaken;
(2)The procedure adopted involved, as earlier mentioned, the rigging of the evaporator units using block and tackle units attached to steel carcass rails in the cool rooms. Despite rigging being defined by cl 246B of the Regulation as "high risk work" for which qualifications were required, neither Mr Smith nor any person working or present at the premises on the day of the incident had qualifications relevant to the conduct of rigging, nor experience in detaching and removing evaporator units or performing similar work. No external advice or assistance was obtained from an appropriately certified person in relation to the procedure. There was no knowledge on the part of the defendants, nor any person working at the premises, as to the weight of the evaporator units, despite the fact that the procedure adopted by the defendants clearly showed a recognition that each evaporator unit was heavy;
(3)Mr Smith commenced work in Cool Room No 2 without direction (although it was his understanding that the removal of the evaporator unit in Cool Room No 2 had been left to him) and adopted a new procedure which was not consistent with the procedure which had been developed and used in Cool Room No 3. Whilst Mr Smith was clearly aware of the procedure which had been developed and used in Cool Room No 3, having been involved in its creation and implementation, it was nonetheless foreseeable that he may adopt a different procedure in Cool Room No 2 which would place him at risk in the manner contemplated in the charge. It is foreseeable that an untrained employee, holding no qualifications and having had no relevant experience in the work in question, may improvise or modify the ad hoc system developed for Cool Room No 3, particularly when he was unsupervised, there was no written safe work method statement and even the system used in Cool Room No 3 was in a state of refinement vis-à-vis the use of acrow-props. Further to that last consideration, it may be noted that the acrow-props had not yet been used at the premises on the day of the incident (having arrived at the premises after the evaporator unit in Cool Room No 3 had been lowered using the block and tackle units) and Mr Smith had not witnessed or had first hand experience in the use of the acrow-props;
(4)This is not to suggest that the defendants had not developed an informal system which, if adopted, may well have avoided the incident (which factor must also be taken into account (as I do immediately below) in assessing the objective seriousness of the matter), but rather that the work method adopted was such that a departure from the method, of the kind embarked upon by Mr Smith, was foreseeable (although not, of course, foreseen).
84I accept the submission by counsel for the defendants that some measures had been taken to ensure the task of removing the evaporators could be undertaken in a safe manner. Those measures included: a discussion prior to commencing work as to how best to undertake the work, including the consideration of the use of a forklift; the development of a work procedure involving the use of two workers, two block and tackle units and the manufacture of a trolley; the modification of the procedure to add the additional safety feature of two acrow-props which Mr Chapman left the premises to ascertain; and, the provision of a sufficient number of workers to undertake the work in accordance with the procedure adopted.
85As the Court noted in McDonald's at [219] (citing Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 33 and WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997) at 21) and, more recently, Inspector Nicholson v Gallagher [2012] NSWIRComm 121 at [48], whilst the existence of safety procedures and systems is a factor which is relevant to the assessment of the seriousness of the offence (and which may mitigate the objective seriousness of the offence), those systems must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks.
86When viewed in the context of the risk to safety occasioned at the premises, it is apparent that the systems in place prior to the incident were inadequate and flawed, as specified in the charges.
87The balancing of these considerations warrants the conclusion that the defendant is entitled to a reduction in penalty in consideration of the systems which were in place at the premises prior to the incident.
88A related consideration is the availability of remedial measures that were straightforward or simple. An offence will be a serious one where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Cross City Tunnel at [191(i)] citing Powercoal v Morrison at [90].
89I accept the submission of the prosecutor that measures which could have been taken by the defendants, as particularised in the charge (that is, providing adequate rigging for the evaporator units and ensuring supervision of work by a qualified person), were simple, obvious and inexpensive. The risk in this matter could have been avoided by the taking of the particularised measures which were entirely within the control of the defendant.
90A final consideration, in this respect, is the relationship between the seriousness of the injuries suffered and the gravity of the offence. Whilst the fact that injury occurred does not automatically dictate the seriousness of the offence, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such circumstances, the occurrence of serious injury may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] and [18]; Capral Aluminium at [94] and [95]; McDonald's and Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [31] to [33].
91In the present case, the risk carried the potential for a serious outcome which was ultimately manifested in the serious injury of Mr Smith.
92It is appropriate to consider two further matters going to the question of objective seriousness. The first is the maximum penalty for the offence (see Cross City Tunnel at [192(i)]). The maximum penalty for the corporation, being a first offender, is $550,000. The maximum penalty for Mr Chapman, also being a first offender, is $55,000.
93The second consideration is deterrence (see Cross City Tunnel at [192(iii)]). General deterrence is applicable in relation to this offence. It is necessary to ensure that any penalty imposed on the corporation and Mr Chapman properly reflects the need for general deterrence so as to draw attention to those who engage in work involving general labouring and the removal of machinery to the appropriateness of implementing a system of rigging which obviates the risk of serious injury from being struck by falling machinery, and conforms with regulations designed to minimise "high risk" situations (as defined in cl 264B of the Regulation) manifested at the time of the incident.
94Specific deterrence, in relation to both defendants, is of much less significance. It was accepted by the prosecutor that the corporation had ceased all operations occurring at the premises immediately following the incident. No work has subsequently been carried out at the premises and it remains on the market. It was further accepted by the prosecutor that the evidence revealed the corporation does not presently trade and has no plans to trade in the future. It does not employ any persons. Further, it was unlikely that Mr Chapman would return to work in any capacity in the future due to health problems including insulin dependent diabetes and hypercholesterolemia.
95It was submitted by counsel for the defendants that specific deterrence would not be a component in any penalty which may be given to either defendant in these matters. In addition to the points acknowledged by the prosecutor, the following factors were relevant: Mr Chapman had a strong commitment to occupational health and safety which was reflected in his having no prior convictions in over 30 years of operating businesses; and, the fact that the task being undertaken at the premises was not part of the corporation's usual business or undertaking.
96I am satisfied that the risk of the corporation or Mr Chapman re-offending is, in the circumstances, low or non-existent. As a result, there will be only a negligible element for specific deterrence in the penalty for both defendants: Capral Aluminium at [77].
97It may be noted that although Mr Chapman's culpability cannot be greater (and may be less) than that of the corporation, the Act, nonetheless, requires that his culpability be assessed in discrete terms having regard to his role in the management of the corporation in the context of the objective nature and gravity of the offence as identified in relation to the company: Maddaford v Coleman.
98By s 26(1) of the Act, as noted, Mr Chapman is taken to be responsible and culpable for the acts and omissions of the corporation. This Court has previously held that, in assessing the culpability of a defendant charged under the Act by virtue of s 26(1), it is not a question of balancing the relative contribution to the offence by the corporation on the one hand and the defendant director (or a person concerned in the management of the corporation) on the other, but, rather, the Court proceeds upon the basis that the purpose of s 26(1) is to make an individual who was 'complicit' in the offence (see, for example, Hookham v The Queen and Powercoal (2005)), or responsible to an extent for the running of the corporation, similarly responsible for its acts or omissions (Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [38]). Accordingly, in assessing the culpability of the defendant, weight will be placed upon the role played by the defendant in decision making in relation to employment and changes to practices, and in otherwise running the corporation (Walco Hoist (No 2) at [39]).
99Mr Chapman was, at the relevant time, a director of the corporation who was responsible for the work being undertaken at the premises on the day of the incident. He was present at the site on the day and was directly involved in determining the manner in which the task of removing the evaporators was to be performed. Having regard to these facts it must be concluded that Mr Chapman was 'complicit' in the offence by the corporation. He played a significant role in the running of the corporation and was responsible to a similar extent for its acts and ommissions as particularised in the charge. Mr Chapman's culpability for the offence, therefore, must be assessed in essentially the same manner at the corporation's.
100There is one final matter to which consideration must be given in determining the objective seriousness of the offence. That is, as submitted by the prosecutor, the fact that the offence resulted in the serious injury of Mr Smith may be taken into account as an aggravating factor in sentencing: s 21A(2)(g) of the CSP Act.
101On balance, the circumstances of the incident, taking into account the nature of the injury to Mr Smith, must result in the conclusion that the offence was reasonably serious.