Inspector McColl v Waterway Constructions Pty Limited

Industrial Relations Commission (NSW)|2003-12-10|Before: Peterson J, Ms P

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector McColl v Waterway Constructions Pty Limited [2003] NSWIRComm 441 Prosecutor: PARTIES : Inspector McColl Defendant: Waterway Constructions Pty Limited FILE NUMBER: IRC3381 of 2002 CORAM: Peterson J CATCHWORDS : Occupational health and safety - Employee killed by steel wharf piles moving while stacked on barge - nature of accident - experienced employee - nature and quality of offence - plea of guilty by employer - penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Lawrenson Diecasting Pty Limited v WorkCover Authority (1999) 90 IR 464 Ferguson v Nelmac (1999) 92 IR 188 CASES CITED : Tyler v Sydney Electricity (1993) 47 IR 1 Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 HEARING DATES: 10/14/2003 DATE OF JUDGMENT: 12/10/2003

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION CORAM: PETERSON J

INSPECTOR McCOLL v WATERWAY CONSTRUCTIONS PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

1 Waterway Constructions Pty Limited is the defendant in proceedings brought by Inspector McColl of the WorkCover Authority of New South Wales in relation to a breach of s15(1) of the Occupational Health and Safety Act 1983 ('the OHS Act'). The charge arises from circumstances in which, on 14 March 2001 at Rozelle Bay Wharf, an employee of the defendant, Rodney Grahame Bills, suffered fatal injuries when crushed between large steel pipes situated on a barge.

2 The facts in the matter were largely agreed. An extensive agreed statement of facts was tendered, together with 24 photographs of the general site and scene of the accident. A factual report made by Inspector McColl was tendered and the defendant relied upon an extensive affidavit of Malcolm William Hiley, a director of the defendant.

3 The charge in respect of which the defendant has pleaded guilty is that it did fail to ensure the health, safety and welfare at work of its employees contrary to s15(1) of the Occupational Health and Safety Act 1983 in that "on 14 March 2001 at Rozelle Bay Wharf in the State of New South Wales, it failed to ensure the health, safety and welfare of its employees at work in particular, Rodney Grahame Bills in that it failed to provide a safe system of work for the loading and unloading and storage of steel piles/pipes on the barge.

(a) The Defendant failed to ensure that there was adequate support for the row of piles stored on the barge.

(b) The Defendant failed to assess the adequacy of the support for the row of piles before placing further piles onto the barge.

(c) The Defendant failed to provide adequate training to employees to allow them to identify the dangers of walking and/or working in or near the piles on the barge.

(d) The Defendant failed to warn its employees of the risks of walking and/or working near or in between the piles on the barge." 4 The defendant's plea was entered at an early stage after the defendant cooperated fully with WorkCover investigations. The defendant has no prior convictions.

5 The agreed facts, omitting formal matters, was as follows:

The Defendant's business involves marine construction including the maintenance and/or repair of wharves.

The Defendant has, for a number of years, leased from the Waterways Authority a section of a wharf known as Rozelle Bay Wharf located at Gate 1 James Craig Road, Rozelle as well as land adjoining the wharf. The Rozelle Bay Wharf consists of several leased areas owned and controlled by the Waterways Authority.

In or about November 2000, the Defendant entered into an agreement with Multiplex Constructions Pty Limited to perform work at Pier 6/7 Walsh Bay including supplying labour and materials for marine piling, demolition of the existing pier, cofferdam construction and pier construction. As part of the performance of this agreement, the Defendant arranged for steel piles, also known as pipes or caissons to be delivered by truck to its yard at Rozelle Bay Wharf. The piles were intended to be transported by barge to the Multiplex construction site at Pier 6/7 Walsh Bay.

At all material times, Rodney Grahame Bills was an employee of the Defendant.

At all material times, the Defendant employed John Mossman as a supervisor, John Smith and Cyprian Botto.

Tony Skrlovnok was a labourer employed by Christies People Pty Limited. Tony Skrlovnok's services were hired to the Defendant by Christies People Pty Limited for Wednesday 14 March 2001.

At all material times there was a barge known as the Fred Kelly Barge that was used by the Defendant to transport steel piles from the Defendant's yard at Rozelle Bay Wharf to the construction site at Pier 6/7.

On Saturday 10 March 2001 a truck delivered five 610mm diameter piles which were 24 metres in length and weighing approximately 4.49 tonnes to the Defendant's yard at Rozelle Bay Wharf. The piles were unloaded from the truck and loaded onto the Fred Kelly Barge by Rodney Bills, John Mossman and John Smith. Rodney Bills operated the Defendant's 30 tonne mobile crane and John Mossman and John Smith were the dogmen.

On Tuesday 13 March 2001, three 610mm diameter piles 20 metres in length and weighing approximately 3.741 tonnes and three 610mm diameter piles 24 metres in length and weighing approximately 4.49 tonnes were delivered by truck to the Defendant's yard at Rozelle Bay Wharf. The piles were unloaded from the truck onto the Fred Kelly Barge by Rodney Bills, Cyprian Botto and John Smith. Rodney Bills operated the Defendant's 30 tonne mobile crane and Cyprian Botto and John Smith were the dogmen.

On Wednesday 14 March 2001, six 610mm diameter piles which were 24 metres in length and weighing approximately 4.49 tonnes were delivered by truck to the Defendant's yard at Rozelle Bay Wharf. The supervisor John Mossman told Rodney Bills and Cyprian Botto to unload the additional piles from the truck. No further instructions were given and no assessment of the adequacy of the support for the piles was undertaken.

The piles were unloaded from the truck onto the Fred Kelly Barge by Rodney Bills, Cyprian Botto and labourer Tony Skrlovnok. Rodney Bills operated the Defendant's 30 tonne mobile crane and Cyprian Botto and Tony Skrlovnok were the dogmen.

The piles were unloaded by the dogmen attaching lifting hooks to both ends of the piles. On Wednesday 14 March 2001, Cyprian Botto and Tony Skrlovnok attached the lifting hooks to each end of each pile on the truck, the crane then lifted each pile from the truck to the barge and Cyprian Botto and Tony Skrlovnok then unhooked the lifting hooks when the piles were in position on the barge.

On 14 March the piles were stacked alongside or on top of other piles that were already on the barge. The bottom layer of piles was placed into position on top of timber gluts on the barge and a few timber wedges were placed under the piles.

Pile racks although available at the site, were not used for the piles that were loaded onto the barge on 10 March 2001, 13 March 2001 and 14 March 2001.

When the last load of piles was placed on the barge on 14 March 2001, 17 piles in total had been loaded on the Fred Kelly Barge. Gregory Brush the construction supervisor with the defendant stated that he had never previously loaded 17 piles on a barge but noted "that is not to say that it couldn't be done". Although the actual configuration of the piles prior to the accident is not known, after the accident there were 10 piles resting on the deck of the barge, a second layer of 5 piles and a third layer of 2 piles.

At about 9.00am on 14 March 2001 after loading the third delivery of piles onto the barge, Rodney Bills, Cyprian Botto and Tony Skrlovnok moved to other duties at the Defendant's yard. The 30 tonne mobile crane was moved by Rodney Bills to the western end of the yard to be used on those other duties. The Fred Kelly Barge remained moored adjacent to the wharf awaiting towing to the Walsh Bay site.

18(a) After lunch on 14 March2001 following the completion of the work at the western end of the yard, Rodney Bills returned the 30 tonne mobile crane from the western end of the yard to its normal parking position adjacent to the Fred Kelly Barge with the front of the crane facing the loaded barge.

Bruce Hawkins, an employee of Solar Technology Australia Pty Ltd which had its offices at Gate 1 Rozelle Bay Wharf, spoke to Rodney Bills approximately ten minutes before the accident. He observed that Rodney Bills was working at a bench outside the Defendant's site office at Rozelle Bay Wharf and was hammering nails into blocks of timber which were approximately 100mm x 50mm.

Unobserved, undirected and unsupervised by anyone at the Defendant's yard, Rodney Bills went onto the Fred Kelly Barge.

On 14 March 2001, Alan Higgins, an independent contractor who was self employed and was on site removing salvage steel, heard cries for help and ran towards the Fred Kelly Barge. When he arrived at the edge of the Wharf he saw Rodney Bills trapped between two steel piles on the bottom layer of piles (numbered 13 and 14) on the barge.

Several employees of the Defendant and other persons rushed to the accident scene after hearing Rodney Bills and saw him trapped between the two steel piles on the barge. Rodney Bills was trapped from the waist down, side on, while facing the Anzac Bridge north and was being compressed between two steel piles.

In the immediate vicinity to where Rodney Bills was trapped 3 blocks of timber of dimensions 90mm x 45mm x 180mm with two 100mm nails hammered into each of them were found. A hammer was found adjacent to the scene.

An ambulance and police rescue were called who took control of the rescue plan to free Rodney Bills with the assistance of some of the employees.

It took approximately two hours to free Rodney Bills. Rodney Bills received multiple injuries to his lower body as a result of his crushing. He was air lifted to Royal Prince Alfred Hospital but died on route to the hospital as a result of the injuries sustained by him.

On 14 March 2001 at about 16.20 hours, Inspector McColl attended the Rozelle Bay Wharf and observed as follows: (i) the edge of the concrete wharf had a 300 x 300mm hard timber edge protection;

(ii) at the southern edge of the wharf there was a pile of orange line marker material;

(iii) at the northern end of the Fred Kelly Barge, there was a fixed ladder fabricated of 50mm galvanised pipe;

(iv) suspended from the northern end of the barge was one large truck tyre protecting the barge from hitting the wharf wall;

(v) a white safety helmet and sun-visor lying on the z-shape steel plate on the concrete wharf;

(vi) a pile of 300mm square hard timbers being stored on the southern side of the Fred Kelly Barge on concrete wharf;

(vii) the Fred Kelly Barge was secured by 5 ropes connected to 3 mooring locations on the wharf;

(viii) one claw hammer with a blue handle lying on the concrete wharf, southern end, next to the pile of hard timbers; (ix) the concrete wharf was approximately 12 metres in width running parallel with the tarmac driveway; (x) also on the southern end of the wharf was 6 steel beams fabricated from 25mm plates painted grey colour; (xi) several sections of steel, locking together to form a z-shape, were stored on the southern end of the wharf. These were known as sheet piles; (xii) one D size Acetylene cylinder standing upright in front of the z-shape steel pile; (xiii) one skip bin, red in colour, standing upright on the wharf; (xiv) one mobile crane, licence number STZ 575, white in colour with Waterway Constructions 02 9555 2211 painted in blue on the side of the crane; (xv) one section of green garden hose lying on the edge of the wharf; (xvi) on the edge of the wharf were a couple of sections of steel angle and channel; (xvii) on the rear support arm of the mobile crane were 3 piles of timber wedges; (xviii) the Fred Kelly Barge has 5 mooring locations on the side of the barge which was nearest to the wharf. The size of the mooring base was approximately 700mm in length x 300mm wide and 100mm in height with one or two upright bollards 350mm in height and 170mm in diameter. On the outer side of each bollard there was a 60mm in length and 50mm in diameter stub in the middle of the bollard; (xix) the location of the moorings on the barge from the northern end of the barge to the middle of the first mooring was 800mm. The second mooring was a further 4 metres from the northern end, the third mooring a further 5550mm from the northern end, the fourth mooring a further 5550mm from the northern end, and the fifth mooring a further 4 metres from the northern end leaving a distance of 800mm to the southern end of the barge; (xx) the approximate size of the Fred Kelly Barge was 20.5 metres by 9.6 metres; (xxi) the barge had 17 piles on 3 layers giving an approximately minimum height of 800mm to a maximum of 1750mm; (xxii) the piles were of a diameter of 610mm with a wall thickness of 15mm. The length of the piles was either 20 metres or 24 metres. The piles were painted black; (xxiii) pile number 13 had two cuttings which appeared to have been recently cut and were discoloured as would be consistent with oxyacetylene cutting process. The first cut was approximately 2 metres and the second cut was 6.5 metres; (xxiv) the first oxyacetylene cut was approximately 800mm wide and the second cut was approximately 50mm wide; (xxv) underneath and to the front on the second oxyacetylene cut, there was a pool of red substance; (xxvi) the piles were being supported by timber gluts, the sizes of which included 200mm x 77mm, 107mm x 107mm, 102mm x 75mm, 98mm x 72mm, 86mm x 86mm and 57mm x 87mm.

6 Mr Hiley, who was not required for cross-examination (although he and the other director of the defendant, James Alexander Millar, were present in court), dealt in his affidavit with the corporate history of the defendant, the nature of its activities, its approach to workplace safety, and its response to the accident.

7 Mr Hiley is an engineer who between 1977 and 1993 was employed by the Maritime Services Board of New South Wales and its successor, the MSB Waterways Authority. In 1993 he was the Manager - Waterfront Services Division of the MSB Waterways Authority. This Division managed wharf maintenance and construction, plant services, and harbour cleaning on Sydney Harbour. In 1993 Mr Hiley, together with Mr Millar (who had conducted his own piling and foundation consultancy, and provided various services to the Waterways Authority) in response to a decision by the Authority to sell, or privatise, its wharf maintenance and construction section as a going concern, put together a plan which would involve a "management buy-out" of that business. The plan involved interested employees agreeing to invest in the business the redundancy payouts they were to receive from the Authority when the section was sold. They had the option of either purchasing shares in a company that would be formed to purchase the business and/or lending money to that company. Apart from Mr Millar and Mr Hiley, 10 such employees purchased shares and six of them also contributed loan funds. Apart from three of the original shareholders who left the company and sold their shares to existing shareholders, the remainder continued to hold shares and all of them (other than Rodney Bills) continued to work in the business.

8 The defendant was incorporated on 17 August 1993 to operate the business which had been acquired by Waterfront Services Pty Ltd through the process I have just summarised. The financing arrangement enabled the business to be purchased without the need to borrow additional funds.

9 The work undertaken by the defendant has been substantial work in the wharf and marine environment and includes the erection and repair of wharves; the replacement of navigation piles; work on submerged pipelines, for example at Avon Dam, and a series of substantial projects refurbishing various wharves in Walsh Bay. In 2001 a contract was won to reconstruct the substructure of Wharves 6/7 at Walsh Bay. It was in relation to this work that the accident to Mr Bills occurred.

10 The defendant and related companies have been the exclusive wharf maintenance and repair contractor for the Waterways Authority's facilities in Sydney Harbour, having successfully re-tendered twice for the work. The group of companies is also the preferred maintenance and repair contractor for the Sydney Ports Corporation, Sydney Ferries, the Sydney Harbour Foreshore Authority, the Sydney Harbour Federation Trust, the National Parks & Wildlife Service and Defence Maintenance Maritime (the facilities manager for Department of Defence sites).

11 In 1995 the group embarked upon land-based commercial building work by acquiring a company which was undertaking work for the Sydney Airport Noise Insulation Project. It has subsequently tendered successfully for work complementing the defendant's maritime operations. From a start with 11 employees in 1993, the Group now employs 55 persons and has an annual turnover of approximately $22.5m. The operations have been successful from an investor and shareholder point of view.

12 Mr Bills, along with each of the other employees joining the defendant from the Waterways Authority, were either tradesmen or plant operators who were highly experienced in maritime construction work. Mr Bills had an extensive list of tickets qualifying his operation of cranes and related work. They included the following: (i) Dogman;

(vii) Slewing Mobile Crane ticket (Up to 20 tonnes);

(viii) Slewing Mobile Crane ticket (Up to 60 tonnes);

13 While it was submitted for the defendant that it is not possible to know precisely what motivated Mr Bills to position himself between the two piles which eventually crushed him, it is accepted that he was a person of significant experience and that he would not have been involved in "a frolic f his own". The defendant does not go quite as far as the prosecution in suggesting that an inference may be drawn that he was undertaking some form of legitimate work associated with stabilising the poles on the barge.

14 The prosecution submitted that Mr Bills was very experienced in the loading and unloading of piles as he had undertaken that work in a number of different projects for the defendant. While it cannot be positively stated why he went on to the barge, the inference the prosecution seeks the court to draw is based upon the system adopted by the defendant: (i) the system adopted by the defendant to attempt to stabilise the load involved the use of timber gluts and timber wedges.

(ii) only a few timber wedges had been placed under the piles.

(iii) Rodney Bills was observed about 10 minutes before the accident hammering nails into blocks of timber.

(iv) 3 blocks of timber of similar size with nails hammered into them were found in the vicinity of the accident. A hammer was found adjacent to the scene.

15 In my view, the inferences urged by the prosecution are reasonably open from those facts. What Mr Bills did was to place himself between two piles on the outer edge of the stack on the wharf side, those pipes being separated to an extent sufficient to enable him to so position himself. The movement of either the stack or the outer pipe has obviously entrapped him between those two pipes. It seems to me the only logical inference from the established facts is that his purpose was related to an attempt to stabilise the pipes so that they could not move.

16 Mr Hiley's affidavit establishes that the defendant has not been an employer which has been sitting on its hands with respect to safety or allowing recognised dangers to continue to exist. It has been reasonably assiduous in pursuing job safety through a series of different measures. In 1996 it engaged The Change Network, a registered training organisation who provide occupational health and safety training to employees, supervisors and management. In 1999 The Change Network developed an occupational health and safety induction training course which specifically addressed issues relevant to the marine construction environment. Mr Bills was a participant in a number of courses relevant to his activities.

17 In about 1997 the defendant introduced the following measures: (i) the company engaged a lifting gear inspector to inspect all the company's lifting equipment on a regular basis to supplement daily inspections undertaken by the lifting gear operators;

(ii) the company engaged a mechanical consultant to assist the company develop check lists for all plant and equipment;

(iii) the company engaged specialist sub-contractors to undertake monthly detailed inspections of all large plant and equipment including lifting gear, pressure vessels and most equipment with engines;

(iv) the company introduced monthly inspections of all electrical equipment by an electrical contractor.

18 In 1998 the defendant engaged a construction industry specialist OH&S consultant who developed a detailed safety management system geared to the company's work. This system was accredited by the Department of Public Works and Services' Construction Policy Steering Committee in June 1999.

19 From 1998 the defendant prepared a site OH&S plan for each major project it undertook.

20 From 1999 a dedicated QA/Safety Manager has been employed. From the same year a safety committee has been established and has met every two to three months.

21 The accident on 14 March 2001 led to a complete review by the defendant of its procedures, especially with respect to the assessment and documentation of workplace risks and safe work procedures.

22 The Safe Work Method Statement in relation to the loading and unloading of steel piles to and from the barge have been developed in an attempt to ensure that the accident which occurred in this case could not occur again.

23 Following the accident a specialist counselling firm was retained by the defendant to provide counselling to staff members. Further, the company resolved to set up a trust for Mr Bills' only granddaughter by contributing initially $20,000 to a trust fund to ensure she receives a complete education in accordance with her and her mother's wishes. The defendant has resolved to underwrite the fund to that end. Any balance will be paid to the granddaughter when she turns 21. Each year since the accident the defendant has held an annual golf day at which all staff members have contributed a day's pay to the trust. It is intended that this will be an ongoing event. As at 23 September 2003 the balance in the trust account totalled $50,681.47.

Consideration 24 While the defendant has pleaded guilty to a charge particularised in four different respects, it was submitted by Mr Hodgkinson SC for the defendant that the first two particulars of the defendant's failure, namely failing to ensure adequate support for the piles stored on the pontoon and failing to assess the adequacy of the support for the row of piles before placing further piles onto the pontoon, constituted the substance of the defendant's failure rather than the third and fourth particulars which relate to adequacy of training to allow the identification of dangers in or near the piles on the pontoon and failing to warn employees of the risks thereof. I am inclined to accept this submission. If the inference is to be drawn that Mr Bills was attempting by his efforts prior to the accident to stabilise the piles on the pontoon, then there is little room for doubt that he would have understood the existence of the risk of movement of the piles. If that be so, then training to identify the dangers or a warning of the risks, while perhaps technically correct, are of lesser, and probably little, substance. Nevertheless, there were clear failures with respect to the first two particulars of the charge.

25 As Ms McDonald for the prosecutor has submitted, the true measure of penalty lies in the nature and quality of the offence (Lawrenson Diecasting Pty Limited v WorkCover Authority (1999) 90 IR 464 at 474) and not merely the result but the occurrence of death or serious injury manifests a degree of seriousness of the relevant detriment to safety (see Ferguson v Nelmac (1999) 92 IR 188 at 204 and Tyler v Sydney Electricity (1993) 47 IR 1 at 5.2). As I would understand the prosecutor's submission, and the judgment, neither support the proposition that a fatality necessarily involves a serious breach of the Act, although it is obviously a relevant factor which must be brought to account. The Full Bench in Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 at par [62], 12 September 2003, unreported, observed that the occurrence of a fatality arising from an accident is relevant to considering the seriousness of the risk occasioned by the respondent (defendant) and that to attach no significance to it is to err. However, I consider that whilst the accident involved in this case had tragic consequences, for the reasons I have outlined, the offence is not at the more serious end of the scale in terms of penalty.

26 The defendant's culpability may be assessed in light of the following features. Mr Bills was very experienced in this work. He was a qualified dogman and crane operator. He would have been in a position where he could have loaded the piles on to the barge in a way which did not leave a residual gap between two piles on the lower level. This seems to me to be particularly so where piles were stacked in a semi-pyramid fashion of three layers. There does not seem to be any reason why a pile on an upper layer could not have been positioned during loading over the space between the two piles which eventually crushed Mr Bills. His experience and his qualifications should have demonstrated that. What happened, however, is that the pipes were positioned in a manner which created the gap (there is no evidence that there was any movement of the pipes prior to Mr Bills attending to them on the day of the accident). Indeed, the actual configuration of the piles prior to the accident is not known, as Agreed Fact 17 identified.

27 Another most unfortunate fact relating to this accident is the presence of pile racks on site which were not used for loading these piles on to the barge. The revised Safe Work Method Statement and Risk Analysis relating to this work will now require prefabricated steel brackets to be welded to the deck of the barge to secure the piles.

28 Nevertheless, in assessing penalty the court is required to take into account, apart from the nature and quality of the offence, the need for penalty to reflect a deterrence effect, both general, in the sense that it will convey to employers generally the need to pay attention to obligations imposed by the Act in relation to occupational health and safety and specific, in the sense that the effect will be felt and understood by the defendant employer. These matters are not of equal weight and different features of a particular case may impact upon the degree to which one or other aspect is brought to bear upon the quantification of penalty.

29 In the present matter I consider that general deterrence is of greater significance than specific deterrence. The fact is that the defendant continues to employ a significant number of persons in an industry attended with risk. In that sense, the observations of the Commission in Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 643 suggests that "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". In my view, there are in the present matter significant aspects of the case which limit the need to be heavy-handed in that respect. Those matters concern the defendant's long standing serious approach to safety; its response to the accident in which it has heightened attention to that matter, and its creation of the trust for the deceased employee's granddaughter, which will act as a constant reiteration to the defendant of its failing in the present matter and thus its need to be diligent in the interests of workplace safety.

30 Taking into account the subjective features to which I have referred, and my assessment of the nature and quality of the offence, I consider that an appropriate penalty in this case would be $110,000. After allowing a reduction of penalty at the maximum permissible rate of 35% (the prosecutor accepting that the utilitarian value of the plea of guilty would be at the higher end of the scale of discount) the resulting penalty is $71,500.

31 I convict the defendant of the offence with which it is charged and impose a fine of $71,500 with a moiety of penalty to the WorkCover Authority of New South Wales. The defendant will pay the prosecutor's costs in an amount as agreed or, in the absence of agreement, I grant leave to approach the court.

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