Inspector Maurice Vierow v Linddales Pty Ltd

Inspector Maurice Vierow v Linddales Pty Ltd - [2007] NSWIRComm 255 - NSWIRComm 1994 case summary — Zoe

[16]

6 The body of the Statement indicated that whilst working for Barclay Mowlem Mr James had received training at the defendant's expense and had subsequently been certified to operate a non-slewing mobile crane. The Statement described the circumstances in which the crane toppled over in the following terms: The Manitou was hired or owned by Barclay Mowlem and where and when the Manitou was to be used on the site was under the control of Barclay Mowlem. The construction supervisor/ foreman of Barclay Mowlem responsible for the relevant part of the site was Peter Davis ("Davis"). On 15 January 2005, under the supervision of Davis a pour of concrete for the construction of stairs was being performed at the site. The stairs under construction were located adjacent to the bottom of a ramp ("the ramp") leading to the basement areas of sections of the site known as buildings 4 & 5. The stairs were known as staircase 5.1. The bottom section of the ramp had a slope of approximately 8.2 degrees. The surface of the ramp was predominantly compacted gravel with a transverse strip of rock spalls approximately 600mm in width at its base. The concrete used in the pour was supplied by HiMix Concrete and delivered to the site in an agitator truck driven by Warren Humphries. Mr Humphries was an employee of HiMix Concrete. The way the work was to be performed was that the concrete was to be transferred from the HiMix Concrete agitator truck to a kibble suspended by chain from a jib attached to the boom of the Manitou. This transfer took place in an area at the top of the ramp. The Manitou was then to reverse down to the bottom of the ramp before proceeding to travel slightly up and across the slope of the ramp at an angle of between approximately 45 degrees and 60 degrees to a concrete block wall parallel to the stairway being constructed. The kibble was then positioned at the required location with the assistance of workers present in the stairway area and its contents discharged. James was the driver of the Manitou. The first pour of concrete at staircase 5.1 occurred without incident. This pour was directly supervised by Davis and took place in his presence. Davis was standing next to the Manitou as the pour took place. During the course of an approach for a second pour of concrete, the Manitou became unstable and toppled over down the ramp and into the basement area of building 5. The approach of the Manitou to the concrete block wall for the second pour was on a different angle to that adopted for the first pour.

[25]

f) The in-service wind speed for each configuration was not shown. 10 Again, it was noted in the Agreed Statement that with the exception of the failure to show the in-service wind speed for each configuration, the various failures to comply with AS 1418-2002 set out above also constituted failures to comply with AS 1418.5-1995. Compliance with AS 1418.5-1995 in the supply of a crane is prescribed by cl 122 of the Occupational Health and Safety Regulation 2001. 11 Referring to the risk, it was stated that: The risk associated with using plant in the way it was being used at the site is well recognised. Australian Standard AS 2550.5-2002 Cranes, hoists and winches - Safe use Part 5: Mobile cranes ("AS 2550.5-2002") specifically states that when travelling with a suspended load a mobile crane should avoid traversing across a slope. AS 2550.5-2002 also contains a diagrammatic illustration proscribing the set-up of a mobile crane in the manner the defendant permitted the Manitou to operate. The predecessor of AS 2550.5-2002, AS 2550.5-1993 Cranes-Safe use Part 5: Mobile and vehicle-loading cranes ("AS 2550.5-1993") also identified the risk. AS 2550.5-1993 is incorporated into the Workcover industry Code of Practice Technical Guidance . 12 After describing alternative means of supplying concrete to staircase 5.1 that were available, the Statement proceeded to address other matters that contributed to the risk: A safe work method statement had not been devised for the construction of staircase 5.1 such that would have ensured that the use of the Manitou was safe. Barclay Mowlem had in place a SWMS for the operation of the Manitou ("the SWMS"). This SWMS identified the tipping of the machine as a potential hazard in its operation with a jib attachment. The control measures prescribed by the SWMS included ensuring that the machine was operated on a level surface. On 15 January 2005 the Manitou was operated by James on a slope of 8.2 degrees. James failed to check the spirit level indicator and later commented that he did not regard such a step as necessary.

[27]

Tilt correction must be used when travelling on side slope. The machine must not travel on side-slope beyond the tilt-correction capacity of the machine (ie. the bubble on the spirit level in the operator's cabin must always be between the two black lines). James received no instruction or training from the defendant about how to go about his duties at the site in the safe operation of the Manitou. James was issued with certification to operate the Manitou on 1 September 2004 pursuant to training paid for by the Defendant. He had operated the Manitou under supervision for a period of about one -and-a-half to two months prior thereto. During most of the time that James operated the Manitou it was fitted with a forklift attachment rather than a crane jib. James estimates that as at 15 January 2005 he had driven the Manitou between half-a-dozen and a dozen times configured in the manner that it was on that day. Davis had no experience operating a Manitou crane. He held no certificate of competency to operate such a crane and was unaware of its capabilities and limitations. The defendant did not provide any direct supervision of James' performance of work whilst operating the Manitou. Such supervision was left to Barclay Mowlem. James had no single supervisor from Barclay Mowlem - the supervisor would vary depending on where on the site James was operating the Manitou at any particular point in time. It was not uncommon for James to have multiple varying supervisors on any given day. The sales representative and workplace health and safety officer of the defendant, Dominic Barrett, visited the site from time-to-time. Mr Barrett states that he visited the site on 30 September 2004, 13 October 2004, 28 October 2004, 8 November 2004, 24 November 2004, 15 December 2004 and 12 January 2005. At no time did the defendant inspect or arrange for an inspection for any purpose of the Manitou before the incident. The defendant was aware that James was performing duties involving the operation of the Manitou. The conditions of hire in force between Barclay Mowlem and the defendant did not require Barclay Mowlem to submit to the defendant safe work method statements for the work to be undertaken by the defendant's employees. The conditions of hire did not require Barclay Mowlem to provide anything to the defendant to demonstrate that the Manitou was safe when used. 13 The Statement noted that the defendant had no prior convictions. Other evidence

[31]

e. The inability to use the Telehandler level correction mechanism. 15 For the defendant, Mr M J Walsh of counsel read seven affidavits: · Gregory John Lindores, Managing Director, Executive Officer and shareholder of the defendant since 1998, · Justin Michael King, the defendant's Recruitment and Training Manager, · Kerri Jennifer Gossling, the defendant's Chief Financial Officer, · Peter McDonald Watt, the defendant's Safety Manager, · Dominic John Barrett, the defendant's Workplace Health and Safety Officer (up to July 2007), · Cuneyt Cosyan, the defendant's Safety Officer and Sales Manager, · Ry Collins, the defendant's Human Resources Manager. 16 In addition, Mr Walsh tendered three lever-arch folders of material which related to the following subject matters: · General documentation including a plan of the site and Linddales' current standard terms and conditions · Mark James employment documents · Post James' incident documents · Rehabilitation documents · Linddales' documents dealing with safety that applied at the time of the incident · Safety Committee documents · Linddales' training documents - post incident · Linddales' safety documentation · Safety performance measures · Linddales' safety reference material. 17 Mr Gregory Lindores provided some further oral evidence in addition to that set out in his affidavit. The focus of his evidence related to the aftermath of the incident involving Mr James and the steps taken by the defendant to improve its policies, procedures, systems, workplace culture and staffing in the area of occupational health and safety. 18 Mr Lindores stated in his evidence: As a consequence of ongoing consideration of the James Accident, and also the results of the Review, I realised that notwithstanding Linddales' efforts to be focused on OH&S, Linddales could not ensure the workplace health and safety of its workers if the host-employers and those in control of the labour hire sites were not committed to high standards of safety. I have identified this to be one of the unique OH&S challenges for labour hire businesses such as Linddales. As a consequence, Linddales has implemented a strategy where the most important factor that I consider when deciding whether to submit a tender for a job is whether that host employer client has a demonstrated commitment to high standards of workplace OH&S. I determine this by: a) discussing with the potential client's representative Linddales' expectations on OH&S and their OH&S systems and procedures; and

[64]

31 Thus, the position was that although the defendant knew that Mr James was operating the crane, it did not know the condition of the crane and whether it could be used safely and without risk because it did not inspect the crane, it did not supervise Mr James whilst he was operating the crane, and it did not otherwise know whether the crane was safe when used because the defendant did not require Barclay Mowlem to advise it in that respect. 32 The defendant either disregarded completely its duty to ensure the safety of its employee, Mr James, or it was relying to a significant degree on Barclay Mowlem to ensure that the crane provided for use by Mr James, was safe and without risk to his health. On the evidence, I prefer the latter interpretation. But as the Full Bench observed in Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 456: A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe. 33 In the present case, the defendant clearly failed to take positive steps to ensure that the work Mr James was doing did not present risks to health and safety. As Mr Walsh properly conceded, that failure was a serious breach of the defendant's duty to ensure safety. The defendant's passive approach to safety left Mr James exposed to a serious risk. Mr Walsh contended, however, that a relevant consideration as to sentencing was the concept of the relative responsibility (or the degree of culpability) as between Linddales and Barclay Mowlem that have been examined by the Court of Appeal in civil cases for breach of common law duties, such as TNT Australia Pty Ltd v Christie and Others (2003) 65 NSWLR 1 per Mason P at [27], [96] and [68] (referring to Drake). See also WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 per Walton J, Vice-President at [61] and the authorities set out therein. 34 As to relative culpability, Mr Walsh referred to the following: · Barclay Mowlem's foreman, Mr Davis, conceived and supervised the system of work due to which Mr James was injured, not having read the SWMS for the Manitou; · the relevant plant was supplied by Barclay Mowlem (albeit Linddales breach to be proactive to inspect and ensure its safe operation); · Barclay Mowlem had the hour by hour direction and control of Mr James on the Saturday morning, and adopted an improvised and novel work method without a SWMS.

[65]

35 One has to be careful about assessing arguments relating to relative culpability. The assessment of penalties for breaches of the Occupational Health and Safety Act is not concerned with apportionment as between two employer tortfeasors, which was an issue before the Court of Appeal in TNT v Christie. Rather, it involves an assessment of the objective and subjective factors relevant to the particular offence and based on that assessment using the instinctive synthesis approach to sentencing, prescribing a penalty at an appropriate point on the scale between zero and the maximum provided by the legislation, in the context of an absolute liability offence. 36 On the evidence in these proceedings it is apparent that Barclay Mowlem's conduct had the effect of placing Mr James at risk, that is the risk of injury from the crane toppling over. However, the question is whether I should regard the defendant's criminality as somehow reduced (and therefore attracting a lesser penalty) because of Barclay Mowlem's conduct. 37 There may be circumstances where the action of another party unquestionably mitigates the seriousness of a defendant's failure to ensure safety. Take this example: assume the defendant had specifically required Barclay Mowlem, as it subsequently did, to regularly have a qualified person check the plant to be used by the defendant's employees and to certify it was safe and met legal requirements, and Barclay Mowlem had failed to carry out that obligation. It would have been eminently arguable that because of Barclay Mowlem's conduct in failing to meet the defendant's specific safety instruction, the objective seriousness of the offence was significantly less that it otherwise would have been. 38 However, what must be borne steadily in mind in the circumstances of this case is that Mr James was an employee of the defendant whose non-delegable duty to its employee was to ensure his safety. The fact is that the risk was most unlikely to have eventuated in the first place if the defendant had taken the steps that it did to protect its employees following the incident. For example, it was contended that Barclay Mowlem supplied the deficient plant thereby contributing to the risk. But it was always open, indeed incumbent upon the defendant, before Mr James used the crane, for it to inspect the crane to ensure the Manitou did not present a risk. Had this been done, and a proper risk assessment carried out, it is most unlikely the risk would have arisen. 39 I have approached the question of the defendant's culpability on the basis of the foregoing considerations. Nothing I have said, of course, is a pronouncement on the guilt, culpability or otherwise of Barclay Mowlem in relation to the incident on 15 January 2005. That will be determined according to the charge and on the evidence in separate proceedings.

[66]

40 Whilst the defendant's breach was undoubtedly serious, this is not a case where the defendant had no regard for the safety of its employees. There were policies and procedures in place to protect employees. The defendant's mistake, in my view, was that it placed too much reliance on the host company to look after the defendant's employees. 41 A further consideration in assessing the objective seriousness of the offence is the extent to which the risk was foreseeable. As the defendant conceded, that the risk was foreseeable was evident from the training documents completed by Mr James when he gained his Manitou operator's ticket in September 2004. 42 The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence: See Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke (1999) 92 IR 8 at 27; WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, 25 February 1994); and, Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. Alternative means of supplying concrete to staircase 5.1 were the use of a slewing, telescopic boom-type mobile crane equipped with a hoisting winch; the use of a boom-type concrete placing unit; the use of a concrete pump coupled to a concrete line; and the use of the Manitou as configured on 15 January 2005 but approaching staircase 5.1 from an angle which positioned the Manitou in the basement area. 43 General and specific deterrence are further considerations to be taken into account: Capral Aluminium Ltd v WorkCover Authority (2000) 49 NSWLR 610 at [71] to [80]. The defendant conceded that a component of the penalty must take into account general deterrence mindful of the prevalence of labour hire organisations and the need to "send a message" to employers generally and labour hire companies specifically. However, it was contended that the unusual series of events leading to Mr Davis instructing Mr James to use the Manitou in the curious and unsafe manner in which he did suggested that a recurrence was not likely to be frequent in the industry generally. 44 Any penalty would not simply be fixed to deter employers from using mobile cranes in a particular "curious and unsafe manner", but rather to deter them from using mobile cranes, or any other plant, in any way that was unsafe. It is appropriate for the Court to fix a penalty that has regard for the need for general deterrence. 45 As for specific deterrence, the Full Bench in Capral Aluminium observed at [77]: In sentencing, a Court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender … or because the offender will not have the opportunity to commit a similar offence in the future… However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. At least where the offender continues to be an employer, risk to safety or its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may incur both by omission and omission. Employers are required to maintain constant diligence and take all practical precautions to ensure safety in the work place. 46 Given, in particular, the measures implemented by the defendant to improve its occupational health and safety arrangements after the incident involving Mr James it is most unlikely the defendant would re-offend. I have, therefore, attached little weight to specific deterrence. 47 The Court is required to give careful attention to maximum penalties because, firstly, the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick: See Markarian v R (2005) 215 ALR 213 at [31]. The defendant has no previous convictions under the relevant legislation. Accordingly, the maximum penalty in this case is $550,000. 48 There are a number of factors that are required to be taken into account in mitigation. The first is that the defendant has pleaded guilty at an early stage to the charge. The penalty will be discounted accordingly. 49 A further subjective consideration is the steps that the defendant took to prevent a recurrence of the risk. I have summarised many of the steps earlier in this judgment. I am moved to comment that what the defendant has done to improve its occupational health and safety systems and procedures and workplace culture is most commendable and provides an example for others to follow, particularly employers in the labour hire industry. 50 The defendant has no previous convictions and has a good record as a labour hire business in the construction industry, which is a notoriously dangerous industry. The Court also accepts the defendant is a good corporate citizen. 51 The defendant has manifested its contrition and remorse through the entry of a plea of guilty on the charge and cooperation with WorkCover. Mr Greg Lindores gave evidence in his capacity as a director of Linddales as to his personal sorrow and remorse at the circumstances leading to the breach of the OHS Act and, in particular, Mr James' injuries. Most importantly though, the defendant's contrition is evident from the attention the defendant gave to Mr James' rehabilitation and the support the company provided to him throughout his period of rehabilitation. 52 Whilst the subjective factors favouring the defendant must have the effect of mitigating any penalty to a significant degree, what cannot be lost sight of is the objective seriousness of the offence and the weight that must be accorded to that factor in fixing the penalty. Having regard to all of the circumstances, I consider an appropriate penalty is $80,000. Orders

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