Inspector McColl v St Hilliers Pty Ltd

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Thursday 29 January 2004

Matter No IRC 5510 of 2002 Inspector William McColl v St Hilliers Pty Ltd Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 3

1 On 3 October 2000 St Hilliers Contracting Pty Limited ("the defendant") was engaged in construction work at Artarmon in the State. Part of the work involved the erection of pre cast concrete wall panels using subcontractors. The panels weighed approximately eight tonnes and measured between approximately 6 to 8 metres long by approximately 2 metres wide. At about 1.15 pm one of the panels fell onto the roof of a factory unit located next door to the construction site. No person was injured, however the estimated cost of the damage was over $1,000,000.

2 The defendant was prosecuted by Inspector William McColl ("the prosecutor") of the WorkCover Authority of New South Wales under s 16(1) of the Occupational Health and Safety Act 1983. In an amended application for order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 the prosecutor alleged that the defendant failed to ensure that persons not in its employment, namely employees of Combined Crane & Rigging and members of the public in the vicinity of the factory units at 80 Reserve Road Artarmon were not exposed to risks to their health and safety arising from the conduct of its undertaking as the principal contractor at the site when a pre-cast concrete tilt up panel identified by number 243 ("the panel") fell from its position onto the roof of factory units at 80 Reserve Road, Artarmon contrary to s 16(1) of the Occupational Health and Safety Act 1983 in that: (a) The defendant failed to ensure that a sub-contractor, Combined Crane & Rigging, on the site carried out its work in connection with the panel on 3 October 2000 in accordance with the work method agreed between the defendant and the said sub-contractor. (b) The defendant failed to properly document its agreed work method in respect of the work undertaken by the sub-contractor, Combined Crane & Rigging, in respect of the panel on 3 October 2000. (c) The defendant failed to have a documented procedure for inspection of the props on the pre-cast tilt up panels and their fixings.

4 An agreed statement of facts was tendered. Relevantly, the statement provided the following information: 8 At all material times the defendant employed the following persons: (a) Ron Lucas as a site foreman ("Mr Lucas"); (b) Andrew Payne as a sub foreman ("Mr Payne"); and (c) Carmello Licciardello as a project manager ("Mr Licciardello"). 9 At all material times prior to and including 3 October 2000, the defendant had subcontracted with Abbey Precast Concrete Australia Pty Limited (ACN 080 026 115) ("Abbey"), now known as Danmark Precast Pty Ltd to supply all labour, materials, plant and equipment to complete the installation of the precast concrete wall panels and associated works at the site. 10 At all material times prior to and including 3 October 2000, Abbey had a verbal subcontract with Combined Crane & Rigging Pty Ltd ("the sub-subcontractor") to install tilt-up concrete panels at the site. 11 At all material times, the sub-subcontractor was responsible for the erection and installation of panels at the site. 12 The defendant prepared a "Site Hazard Schedule" in relation to the site on 29 January 1998. The Schedule amongst other things identified the requirements to obtain a written Work Method Statement from the crane crew and tilt panel erector. 13 The defendant prepared a "Project Safety Plan No.74" for the site dated 20 March 2000. The Safety Plan included the following aspects: (a) Clause 2.2 - Project Manager's Responsibilities; (b) Clause 2.2 - Site Foreman's Responsibilities; (c) Clause 8.1 - General Site Safety Inspections; (d) Clause 11.3 - Work Method Statements; (e) Clause 12.1 - Site Induction. 14 By facsimile dated 19 June 2000, Abbey provided a copy of the sub-subcontractor's written Work Method Statement dated 19 June 2000 to the defendant in relation to the installation of precast concrete panel erection for Abbey at the site. The Work Method Statement included the following provisions: "8.6 Safe access/egress is to be maintained to work areas at all times by the main contractor. ADDENDUM 1. Place panel at set position with the crane and attach support props to ferrules cast into the panel at approximately 1-5 points plum panel drill M20 hole and fix bottom of prop with WA20-120 Reid Wedge Anchor. Bolt tighten and repeat for second prop. All panels must have two props per panel." 15 At all material times the sub-subcontractor was an employer. 16 At all material times, the sub-subcontractor employed: (a) Arthur Didovich, a director. (b) Ian Lee ("Mr Lee"), the crane operator (c) Mario Kalatinic ("Mr Katalinic"), labourer (d) Robert Davies ("Mr Davies"). (e) Mr William Latimer ("Mr Latimer"). 17 At some time between 29 September and 3 October 2000 the sub-subcontractor had erected panels at the site, including but not limited to panel numbered 243. 18 On 29 September 2000, Mr Payne met with the Mr Didovich at the site to discuss the procedure of what would take place on 3 October 2000 ("the 29 September meeting"). 19 During the course of the 29 September meeting, Mr Didovich advised Mr Payne that for the purpose of crane access to install the concrete panels for an internal wall, two setup props that were attached to panel 243, would need to be moved. Mr Didovich stated that the proposed work method was to install two additional props so as to ensure that there were two props in place at all times. It was further discussed and agreed that as an additional precaution fishplates would be welded to panel 243 and each adjoining panel prior to the removal of the props to give further stability to panel 243. Mr Payne stated that he would confirm with Abbey for a welder to be present on site on 3 October 2000 to undertake the welding work, in particular welding the fishplates to panel number 243 before the props were adjusted. 20 Following the meeting on 29 September 2000, Mr Payne telephoned Mr Paul Cattabriga of Abbey to arrange for a welder to be present at the site on the morning of 3 October 2000. In the event there was no welder in attendance on 3 October 2000. 21 On 3 October 2000 the crane was set up on a suspended slab consisting of hardwood timbers laid down on the first floor of the building under construction. Its function is to distribute the load of the crane. The size of the suspended slab was approximately 8ft by 8ft. 22 At all material times each panel was placed into position using the crane. Employees of the sub-subcontractor directed each panel into position. Each panel was numbered. Once a panel was installed the employees of the sub-subcontractor put props into position to secure each panel in place. The props were put on with the assistance of a cherry picker. The props were attached to the ferrule which forms part of the panel and the other end of the props were bolted to the floor using Dyna bolts. Each prop was secured to the ferrule with a pin which would be secured with a bent over nail or piece of wire to stop the prop from coming out. The first prop of each panel was used to plumb the panel before the second one was fitted or locked off. 23 At all material times on 3 October 2000, panel 243 was located on the north western side of the site on level 2 at the end of a row of four other tilt up panels. The panel formed part of the north wall and had two props supporting it. The props were secured with pins and Dyna bolts. 24 At all material times on 3 October the panel had a blue label on its base with identification number 243. 25 At all material times the panel weighed approximately eight (8) tonnes and measured between approximately 6 to 8 metres long by approximately 2 metres wide 26 The crane being used by Mr Lee on 3 October 2000 was an orange Cerdano 50 tonne mobile crane ("the crane") which was being used by the company to install the panels. The crane was facing the opposite direction to panel 243. 27 Mr Lee spoke to Mr Lucas, the foreman employed by St Hilliers to arrange for the movement of the propping under the suspended slab whilst he and the other employees of the sub-subcontractor had lunch. The crane was to be moved out, turned around and driven into position to begin installing the internal wall which was to run perpendicular to the north wall. 28 On 3 October 2000 at approximately 1.15pm after some consultation with Messrs Lee, Latimer and Davies, Mr Katalinic removed two props from the panel to allow access for the nose of the crane. Mr Katalinic removed the pin from the first prop then walked away to get the rattle gun to undo the dyna bolt. Instead of undoing the bolts on the first prop Mr Katalinic loosened the dyna bolts on the second prop. Shortly after removing this Dyna bolt the panel fell onto the roof of factory unit 4 at 80 Reserve Road, Artarmon which was located next door to the site. 29 When Mr Katalinic commenced removing the props from the panel, (i) (sic) had not been secured by other means; specifically the additional props had not been installed and the panel had not been welded to the adjacent panels using fish plates; and (ii) it had not been inspected to ensure that pins and Dyna bolts were secure. 30 From an inspection of the prop connections after the panel collapsed it appeared that there was no pin in the second prop. 31 As a consequence of the panel collapsing, damage was occasioned to units 1, 2, 3, 4, 5 and 6 located at 80 Reserve Road, Artarmon. The estimated cost of the damage was over $1,000,000. 32 At the time of the incident there were members of the public present in the vicinity of unit 4, 80 Reserve Road, Artarmon. Mr Peter Rolls, Mr Reg Rolls and Mr Clive Hores were present inspecting a motor vehicle. 33 At all material times on 3 October 2000, the sub-subcontractor failed to follow its own Work Method Statement in that a minimum number of two props should have been in place to hold the panel. 34 At all material times on 3 October 2000, the defendant and the sub-subcontractor failed to ensure that the prop was secured in place by a fishplate before removing its props. 35 At all material times the defendant and the sub-subcontractor failed to inform its employees of arrangements that had been made for the securing of the panel by alternative means before the props on panel 243 were moved. 36 At all material times there was no or any adequate record kept in the form of a site diary or otherwise of arrangements that had been made between Mr Payne and Mr Didovich as to how the panel was to be secured prior to the removal of props to allow crane access. 37 At all material times including 3 October 2000 the defendant had no documented procedure for checking the security of the pins and Dyna bolts that secured props to the panels, and specifically panel 243.

5 Other material tendered by the prosecutor was as follows: (i) Factual Inspection Report by Inspector Peter Newman dated 8 October 2000.

(ii) Bundle of colour photographs taken by Inspector Newman at the incident site on 3 October 2000.

(iv) Accident or Incident Investigation Report prepared by the defendant (undated).

(v) Prohibition notice issued by Inspector Newman on 3 October 2000.

(vi) Improvement notice issued by Inspector Newman on 4 October 2000.

(viii) Project Safety Plan No. 74 dated 20 March 2000.

6 The defendant tendered an affidavit of Andrew Christopher Payne, sub-foreman and Gregory John Matthews, systems compliance manager. The defendant also tendered two references, one by Glenn Collison of Arben Management Pty Limited and the other by Mark Jacobs, director of Charter Hall Holdings Pty Ltd.

7 In his affidavit Mr Payne explained how it was he was absent from the site on 3 October 2000 - his partner was about to have a baby. Mr Payne recounted a conversation he had with Arthur Didovich of Combined Crane & Rigging Pty Limited on 29 September 2000 regarding the removal of the props on panel 243 in accordance with the method statement. He also said he telephoned Paul Cattabriga, the supervisor of Abbey Precast Concrete Australia Pty Limited and asked him to have a welder present at the site on the morning of 3 October 2000 to weld fishplates to the panel as discussed with Mr Didovich. Mr Payne was not required for cross-examination.

8 Mr Matthews' affidavit addressed the following matters:

s The role of Systems Compliance Manager including responsibility for occupational health and safety matters. s Personal qualifications and experience that included holding a Bachelor degree in Civil Engineering from UNSW and completion of numerous courses and seminars on Occupational Health & Safety Management. s A description of the defendant's structure and operations. St Hilliers was incorporated in 1989 and has been in continuous business in the construction industry since that date. At the time of the incident the subject of the current charge, St Hilliers was a wholly owned subsidiary of St Hilliers Pty Limited. Since its inception in 1989, the construction arm of the St Hilliers Group has completed over 600 projects, to a value in excess of $1.2 billion. The St Hilliers Group currently employs in the order of 210 personnel in its business; this includes both site and office personnel. Site personnel are mainly in supervisory/ management roles (foreman and leading hands) with labourers to assist and maintain the amenities and other minor construction related tasks. The majority of construction work is subcontracted to specialist trade groups. Total site numbers can range from less than 10 people to more than 100 depending on the size and stage of the project. Generally, St Hilliers direct employed staff on a project would be in the range 2 to 10 people. St Hilliers currently have 18 active construction sites worth approximately $200 million. s In compliance with St Hilliers Project Safety Plan No. 74 dated 20 March 2000 Abbey provided St Hilliers with a copy of Combined Crane's Work Method Statement ("WMS") in relation to the proposed installation of the precast concrete panels. This included confirmation from Combined that they had been inducted with regard to the WMS. s After the site induction conducted by St Hilliers, a representative of St Hilliers had Messrs Lee, Davies, Lattimer and Katatanic of Combined Cranes confirm: (a) that they had attended the site safety induction; (b) that they had relevant licenses/tickets; and (c) had read and understood the work method statements. The WMS included the following express provision in the Addendum: "Place panel at set position with the crane and attach support prop to ferrules cast into the panel at approximately 1/5 points plumb panel drill M20 hole and fix bottom of prop with WA 20-120 Reid Wedge Anchor. Bolt tighten and repeat for second prop. All panels must have two props per panel." s At lunch time on 3 October 2000, an employee of Combined Crane spoke to an employee of St Hilliers to arrange for the propping of the suspended slab to enable movement of the crane whilst the Combined Crane crew were having lunch. After lunch the crane was moved and turned around ready to being driven into the new position. s In order to move the crane into its new position, it was necessary to reposition the props on the panel. At approximately 1.15pm on 3 October 2000, an employee of Combined Crane ("the worker"), after consultation with Messrs Lee, Latimer and Davies of Combined, commenced to remove the two props from the panel to allow access for the nose of the crane. s The method of removal of the props was not in accordance with the work method discussed and agreed between Mr Payne and Mr Didovich at the 29 September meeting as the two new props were not installed prior to removal of the existing props. Further, the welder from Abbey had called in sick and accordingly, the fishplates had not been welded in place prior to removal of the existing props. s The only ways the incident could have occurred is that: (a) The pin for one prop was not in place when the dynabolt for the other prop was removed; or (b) The dynabolt from one prop had been removed when the pin from the other prop was removed.

s In either case, the missing pin or dynabolt should have been clearly evident to the relevant worker as would have been the lack of any other support for the panel. s St Hilliers instituted and implemented an OH&S Management system (known as the "Safety System") on commencing construction activities in New South Wales in 1989. The Safety System has evolved continuously since that date. s St. Hilliers has always maintained an absolute commitment to safety. s St. Hilliers has in place an Occupational Health & Safety system in the form of a Safety System Manual, Procedures and Forms comprising the policies and procedures by which St. Hilliers seek to ensure that all its work sites are safe and without risk to health and safety. This document is reviewed and updated and amended regularly to implement any statutory changes and ongoing improvements to the system generally. s This system (in an earlier form) was in place at the time of the incident the subject of the current charge. In addition, the system is regularly audited on site, internally by professional staff members and externally. s Copies of the Safety System are provided to each St Hilliers construction site with a directive that all St Hilliers employees are to carry out their duties in accordance with the procedures contained within the Safety System. s Prior to the commencement of each new project, the relevant Project Manager and the Site Foreman prepare an individual Site Safety Management Plan ("SSMP") for each project site. The template Site Safety Management Plan is based on the New South Wales Government Guidelines for Occupational Health and Safety Management System and has been developed to meet the specific needs of St Hilliers. s It is a requirement of St Hilliers Safety System that all projects have a site safety work group, comprising employer, employees and subcontractor representatives. The site safety work group is responsible for reviewing the operation of safety policy and procedures on site, issuing weekly reports to the Site Foreman, conducting inspections for the purpose of detecting unsafe or unsatisfactory conditions and practices, ensuring the observance of health and safety standards and assisting with or conducting appropriate training or site induction training. s It is a requirement on every St Hilliers site that: (a) job safety analysis is prepared by St Hilliers in respect of work to be undertaken by St Hilliers employees on a particular project; (b) all subcontractors of St Hilliers prepare and provide to the company safe work method statements for all work activities to be undertaken by the particular subcontractor. s Every site based employee of St Hilliers carrying out construction work has attended the building and construction industry training and induction course and obtained a "Green Card" signifying satisfactory completion of the training program. s All construction workers on site (whether directly employed by St Hilliers or otherwise) are required to hold a current "Green Card" and to undertake site specific induction detailing the health and safety and site management requirements of particular sites. s St Hilliers is committed to OH&S training, particularly for site personnel. There are six elements of safety training for site personnel with St Hilliers as follows: (a) new employee induction procedures; (b) site induction training; (c) on-site safety refresher training as required; (d) task training as required; (e) internal training; and (f) external training. s Following this incident the following steps were undertaken: (a) the area was immediately secured and made safe and WorkCover were contacted and advised of the incident; (b) an external engineering inspection report was requisitioned from D'Amici Colombo Pty Ltd so as to ensure a proper investigation of the incident and make recommendations for improvements; (c) an internal accident investigation was conducted. (d) A full review of the safety procedures in place was undertaken by senior management and the Manager of Occupational Health & Safety; (e) there was further training for workers (and subcontractors) on site to emphasise proper work practices and particularly those relevant to the incident; and (f) tool box meetings were arranged on site to train subcontractors on any new procedures; (g) St Hilliers ensure compliance with any WorkCover notices; (h) St Hilliers provided full co-operation to WorkCover with regard to their investigations; (i) a presentation was given at the following construction meeting highlighting the safety issues (to all Project Managers and Administrators) that arose as a result of the incident the subject of the current prosecution; (j) all of the other panels were checked by an external engineer to ensure they were properly supported and fitted and an engineers certificate to that effect was obtained; (k) site personnel were re-inducted on the site with regard to the pre-cast panels. A revised work method statement was created and presented at a tool box meeting where a three point check method on the bracing was documented (it was already in place in practice). s St Hilliers implemented external training from the School of Safety Science, University of New South Wales for all Site Foremen and Project Managers working in New South Wales. s St Hilliers greatly regrets the incident in question. s None of the companies or directors of companies in the St Hilliers Group have ever been the subject of a prosecution by WorkCover or anyone else.

9 Ms P Lowson of counsel appeared for the prosecutor. Ms Lowson addressed the relevant objective and subjective factors to be taken into account in determining an appropriate sentence. Ms Lowson referred to:

· The maximum penalty, which in this case is $550,000; · The need for general deterrence; · The need for specific deterrence; · The defendant's failure to ensure that documented safe working methods were followed and the failure to ensure that variations to those methods were reduced to writing; · The defendant's failure to document a procedure for the inspection of props; · The nature of the offence and that there were available simple steps to ensure that safe work methods were followed; · The nature of the offence where the risk of injury, although not manifested, demonstrated the degree of seriousness of the relevant detriment to safety; · Obvious and foreseeable risks to safety against which appropriate measures were not taken.

10 Ms Lowson submitted that: [T]he risks to safety were clear given that: (i) The concrete slab was to have support structures, namely the props, moved to enable the truck to have access. (ii) The stability of the concrete slab depended on those props. (iii) An insufficiently supported, or unsupported concrete slab, presented an obvious danger to personnel on site and offsite. (iv) Where the stability of all the concrete slabs was wholly reliant on the props over a period of time, an adequately documented procedure of inspection of the props would ensure the props maintained their function.

11 The prosecution further submitted that: The defendant is not the only entity culpable in this incident. Combined Crane & Rigging Pty Ltd had primary responsibility for the work in question and failed to adhere to its own work method statement. Their culpability is higher. Nevertheless the culpability of the present defendant is still high as (i) it was the primary contractor on site; (ii) it was involved in the decision making as to the work method to be adopted in relation to the moving of the props, but did not ensure that the variation was adhered to or reduced to writing; (iii) the need for the variation to be reduced to writing was increased in circumstances where neither of the regular foremen - Ron Lucas or Andrew Payne - were on site on the day in question; (iv) it arranged for the welder to be on site but had no system in place to ensure that the welder arrived, or to ensure that the props were not removed if the welder was not available to weld the fishplates prior to the props being moved.

12 The subjective factors referred to by Ms Lowson were: (i) The defendant's guilty plea; (ii) The defendant's occupational health and safety system; (iii) The steps taken by the defendant after the incident to improve its safety system; (iv) The defendant's remorse and contrition.

13 Mr A Henskens of counsel appeared for the defendant. Mr Henskens submitted that if Combined Crane & Rigging had carried out the work of moving the props in accordance with what was agreed between Mr Payne and Mr Didovich the risk would have been avoided. Mr Henskens contended that: [I]t is possible to characterise the defendant's breach as one of a failure to communicate the full terms of the conversation between Mr Payne and Mr Didovich to all of the workers of Combined Crane.

· There was no change to the work method - two props were to be in position at all times; · Even if Mr Payne had reduced the work method to writing it was not entirely apparent this would have avoided the risk; · The breach amounted to a failure to supervise and communicate and not one of ignoring an obvious danger; · No person was injured; · The defendant entered an early plea of guilty; · The defendant is a large corporation with a very good safety record; · The defendant has made appropriate changes to its systems of work to avoid a recurrence of the subject incident; · The need for specific deterrence should not figure prominently in any penalty.

15 The principal failure as expressed in particular (a) of the charge was that the defendant failed to ensure that a sub-contractor, Combined Crane & Rigging, carried out its work in connection with the panel in accordance with the work method agreed between the defendant and the said sub-contractor. Mr Henskens suggested that this manifested a "very fine breach" and not a gross failure on the part of the defendant. It is true that no death or injury resulted from the incident. But, of course, death or injury will not, of itself, dictate the seriousness of the offence or the amount of penalty. In the present case the consequences of not ensuring the sub-contractor undertook the task in accordance with the work method were very serious as demonstrated by the damage wrought on the neighbouring property when the 8 tonne concrete panel fell on it. It is the utmost good fortune no person was in the neighbouring factory units at the time of the collapse.

16 It must be accepted on the evidence that the defendant has a strong commitment to occupational health and safety and gives such matters priority in the conduct of its business. But like so many employers, especially in the construction industry, it made the mistake of relying on others to ensure workers at its place of work were not put at risk. That responsibility cannot be given over to another; the Act imposes under s 16(1) an absolute liability on employers to ensure that persons not in their 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.

17 It was readily foreseeable that if a safe work method was not adopted in relation to the propping up of an 8 tonne concrete wall panel measuring between approximately 6 to 8 metres long by approximately 2 metres wide, there was a serious risk it would fall and cause injury or death. The defendant knew this and took steps to convey to the crane company what needed to be done to ensure the moving of the props was undertaken in a safe manner without creating a risk to health and safety. But at a workplace in respect of which it had the principal construction responsibility, the defendant did not make provision to ensure the crane company did as it was instructed. Further, the defendant had no system in place to ensure that the welder it had arranged for in fact turned up to do the work, and it did not ensure that the props were not removed if the welder was not available to weld the fishplates prior to the props being moved.

18 The failures by the defendant as charged were easily remedied as evidenced by the steps taken after the incident. In particular, I note that before a prop is removed an appropriately qualified engineer is now required to issue a certificate. 19 In assessing penalty, it is necessary that the Court have regard to the need for general deterrence: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [75]. In relation to specific deterrence, as the Full Bench observed in Capral at [77], in view of the scope of the obligations on employers under the Occupational Health and Safety Act, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. And further that "This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety".

20 In considering the question of specific deterrence I note that the defendant is a large employer in an industry notorious for the risks to health and safety. I also note the defendant's previous very good safety record, the steps it has taken to avoid a future recurrence of the incident, its regret at what occurred and its strong commitment to occupational health and safety. These factors have been taken into account in fixing penalty.

21 As to the subjective factors I accept that the defendant entered an early plea of guilty. I also accept that the defendant is remorseful. I take into account the previously unblemished safety record of the defendant, its commendable commitment to occupational health and safety, the steps taken to improve its afety systems following the incident and its cooperation with WorkCover in the investigation of the incident.

22 The maximum penalty in this case is $550,000. In light of the objective seriousness of the offence I consider that the appropriate penalty is $130,000. However, this should be discounted by 25 per cent to take into account the utilitarian value of the early guilty plea and a further 10 per cent for the other subjective factors. This results in a penalty of $84,500.

23 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 $84,500 with a moiety thereof to the prosecutor.

4. The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. _________________________________

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