Inspector Michael Dall (WorkCover Authority of NSW) v Waterside Constructions Pty Limited and Another

Industrial Relations Commission (NSW)|2009-06-02|Before: Backman J, Mr P, Mr J

CITATION: Inspector Michael Dall (WorkCover Authority of NSW) v Waterside Constructions Pty Limited and Another [2009] NSWIRComm 206

PROSECUTOR: Inspector Michael Dall (WorkCover Authority of NSW) PARTIES: DEFENDANTS: Waterside Constructions Pty Limited Michael Ferguson

CATCHWORDS: Occupational health and safety - Occupational Health and Safety Act 2000 - pleas of guilty - untrained and unqualified worker erecting scaffolding falls 11.27 metres from incomplete scaffolding onto concrete floor - risk of falling from heights - deficient safe systems of work - reasonable foreseeability of risk - probable consequences of breaches - availability of simple measures prior to offence - deterrence - subjective factors considered - respective roles considered - penalties - orders

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001

Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146 Inspector Jones v James Denson and Anor [2006] NSWIRComm 234 CASES CITED: Inspector Melissa Chaston v Sacco Builders Pty Ltd and Others [2008] NSWIRComm 152 Inspector Wilkie v Anstee (No 2) [2007] NSWIRComm 20 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449

PROSECUTOR: Mr C Magee of counsel Solicitors: Criminal Law Practice Legal Group WorkCover Authority of NSW (Ms M Doyle)

FIRST DEFENDANT: LEGAL REPRESENTATIVES: Mr P Moorhouse of counsel Solicitors:Mitchell Lawyers (Mr S Mitchell)

SECOND DEFENDANT: Mr J Wormington of counsel Solicitors: Gillis Delaney Lawyers (Ms A Brown)

INSPECTOR MICHAEL DALL (WORKCOVER AUTHORITY OF NSW) v WATERSIDE CONSTRUCTIONS PTY LIMITED

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

INSPECTOR MICHAEL DALL (WORKCOVER AUTHORITY OF NSW) v MICHAEL FERGUSON

Prosecution under sections 8(1) and s 26(1) of the Occupational Health and Safety Act 2000

Introduction 1 Michael Ferguson pleaded guilty to an offence under s 8(1) and s 26(1) of the Occupational Health and Safety Act 2000 (2000 Act). Waterside Constructions Pty Limited (Waterside Constructions) pleaded guilty to an offence under s 8(2) of the 2000 Act. At the parties' request the sentencing hearings proceeded "back-to-back" with Mr Ferguson's matter being heard first. Michael Ferguson 2 At the time of the offence, Mr Ferguson was a manager of Accute Scaffolding Pty Limited (Accute Scaffolding). Accute Scaffolding supplied labour for the erection, modification and dismantling of scaffolding to the building and construction industry.

3 Accute Scaffolding was contracted to Sun Scaffolding Pty Limited (Sun Scaffolding) to supply labour and equipment for the erection, modification and dismantling of scaffolding for a construction project known as the Cote d'Azur Apartments. Sun Scaffolding contracted to PCH Group Limited. PCH contracted with Waterside Constructions which was the principal contractor of the project. The project was a six-storey residential development comprising two buildings, Building A and Building B. The development consisted of 54 units with associated storage and carpark facilities, six residential levels, a basement level and a ground/basement level. 4 Accute Scaffolding employed Joshua Lamey as a labourer. Mr Lamey was directed to perform basic scaffolding work with certified scaffolders on the construction of scaffolding at the premises. At the time of the offence, Mr Lamey was not a certified scaffolder and did not have the requisite qualifications to perform basic scaffolding work as required under the Occupational Health and Safety Regulation 2001 (2001 Regulation).

5 At the premises Accute Scaffolding also employed Michael Bunt and Shane Barwick, certified scaffolders, Robert Linton, a leading hand/certified scaffolder, and Chris Dunn, site supervisor. 6 On 28 August 2006, Mr Lamey was erecting scaffolding at the premises, with Mr Linton, Mr Bunt and Mr Barwick. Their supervisor, Mr Dunn, had attended the premises for a short while that morning in order to discuss the tasks that the men were required to do that day. 7 For approximately one hour, commencing at about 11.30am, heavy rain fell at the premises. As a result, the scaffolding became wet and slippery and the workers, including Mr Lamey, stopped work for an early lunch. After the rain ceased, Mr Linton, the leading hand, made a decision that it was safe to return to work. He directed the workers, including Mr Lamey, to continue to erect the scaffolding. Mr Dunn had left the premises prior to this decision having been made. No one at this time undertook a risk assessment to determine whether it was safe to recommence erecting the scaffolding on the scaffolding decks. The work continued with the scaffolding still wet. 8 Mr Lamey was directed by Mr Linton to lash up the lapboards and wire mesh on Deck 6 of the incomplete scaffolding on Level 5 of Building B. Mr Barwick was also working on that level. Mr Linton and Mr Bunt were working above on Deck 7. At about 1.10pm, Mr Lamey was requested by Mr Linton to obtain some tie wire for him. The tie wire was located on a scaffolding deck immediately below Deck 6. In order to retrieve the tie wire from the deck below, Mr Lamey should have proceeded to the lower scaffold level via the internal stairs within the building. Instead, he climbed over the scaffolding handrail onto the outside of the scaffolding frame. He slipped from a scaffold lapboard which had not been secured and fell about 11.27 metres onto concrete floor below. 9 Mr Lamey had been instructed by Mr Ferguson and others not to climb the outside of scaffolding. Mr Lamey fell between the gymnasium and the carpark exhaust ducts on Level 2 podium level at the southern end of the western face of Building B. He suffered injuries, including a commuted fracture of the frontal sinus, transient CSF leak, head lacerations, double vision, a hairline fracture of the lower spine and bruising to the back. He spent seven days in hospital and was unfit for work until mid-November 2006. He subsequently returned to work on a rehabilitation programme working for Accute Scaffolding. System of work in place at the time of the offence

10 At the time of the accident Accute Scaffolding had in place a Safe Work Method Statement (SWMS) which addressed scaffolding work undertaken at the premises. The SWMS required that persons performing scaffolding work at the premises hold appropriate qualifications. Mr Lamey had neither undertaken a required training course nor was he completing a log book at the time of the accident. The importance of holding appropriate qualifications before undertaking scaffolding work is underscored by the regulation of scaffolding work under the Occupational Health and Safety Regulation 2001. Under clause 264B scaffolding is designated "high risk work". Under clause 264F only those persons holding a licence or other recognised qualification are permitted to perform high risk work. An exception to this appears under clause 264G in the case of trainees. That clause allows a trainee to perform high risk work subject to conditions which include direct supervision of the trainee and the keeping and maintaining of a record of training received. 11 According to the agreed facts the SWMS also dealt with weather conditions. There was, however, no adequate assessment by Accute Scaffolding of the risks to the scaffolders working on the scaffolding after heavy rain. Mr Dunn apparently advised the workers that if it was still raining after the lunch break they should contact him and advise him they were ceasing work for the day. Mr Dunn did not instruct the workers, in the event that the rain ceased, that they should assess the risks of returning to work on the scaffolding after the rain. 12 The SWMS also contained instructions about working at heights and about incomplete scaffolding platforms. With regard to working at heights the SWMS designated the use of safety harnesses to be worn and required them to be worn with a lanyard attached to a fixed supporting point, while working on an incomplete platform. Mr Lamey at the time of his accident was working on an incomplete platform. He was not using a safety harness nor had he been directed to do so by Accute Scaffolding. Accute Scaffolding was aware of the practice of its employees, including Mr Lamey, from time to time climbing on the outside of the scaffolding frame to access other areas of scaffolding. 13 Prior to the accident Mr Lamey did not receive a site specific induction. Mr Lamey was not inducted to the site at any stage during his engagement there, which was for a period between two to five months. Mr Dunn was the scaffolding site supervisor at the premises and at a number of other work sites. He could not therefore provide continuous supervision of the scaffolders including Mr Lamey. In Mr Dunn's absence, the leading hand, Mr Linton was responsible for supervision. At the time of the accident Mr Linton was working on the deck above Mr Lamey. Because of his location Mr Lamey was not in Mr Linton's direct line of sight. 14 These matters demonstrate serious deficiencies in Accute Scaffolding's system of work. They combine to render the offence with which Mr Ferguson has been charged, objectively serious. Nevertheless, Mr Ferguson in his affidavit (the contents of which were unchallenged) sets out in some detail the systems of work which Accute Scaffolding had developed and implemented, directed towards the safety of the scaffolders undertaking work at the premises as well as other work sites at which Accute Scaffolding had been engaged. 15 On the morning of the accident, Mr Ferguson said, the scaffolding crew including Mr Lamey attended Accute Scaffolding's workshop to pick up paperwork, including the SWMS, and safety equipment for use at the premises. Mr Ferguson gave Mr Linton the paperwork and went through it with him. He said he expected Mr Linton to take the scaffolding crew through the paperwork upon arrival at the site. The evening before the accident Mr Ferguson said he called Mr Dunn to inform him of his duties at the premises. Mr Ferguson added: I must admit I struggle to understand how the incident occurred given I had drummed into my employees the fact that they should not climb outside the scaffold. I do not know why Josh decided to take this short cut on the day of the incident instead of using the internal stairs which were available and which I understand he had used on a number of occasions earlier that day. 16 The affidavit also sets out in some detail what may be referred to as Accute Scaffolding's commitment to occupational health and safety practices prior to the offence. According to Mr Ferguson he attended monthly OHS meetings with the corporation's employees, during which various safe methods for the erection and dismantling of scaffolding were discussed. Mr Ferguson kept up to date with OHS policies and practices by accessing the internet. He also attended the WorkCover office to collect log books and when doing so picked up WorkCover publications to supplement other safety material. He generally attended each work site, at which Accute Scaffolding was engaged, on a monthly basis to check the scaffolding structure and to advise on any modifications to the scaffolding. He would also sign off on the erection of scaffolding by the corporation prior to its use by third parties. Accute Scaffolding also had available to all its workers at its worksites safety equipment such as hard hats, harnesses, lanyards, ropes and other fall arrest devices. This equipment was in racks on the walls of the workshop for collection by employees prior to every work day. At the time of the offence Accute Scaffolding had on order additional safety harnesses and lanyards. 17 Mr Ferguson also trained many of the scaffolders who worked for him. He said he arranged and paid for 10 to 15 scaffolders to undertake and complete scaffolding qualifications. Mr Linton, Mr Bunt and Mr Barwick were included in this number. Mr Ferguson also enrolled Mr Lamey for a TAFE course in order to facilitate his obtaining scaffolding qualifications. According to him, Mr Lamey did not attend the course. 18 Mr Ferguson also prepared for Accute Scaffolding, with the assistance of Mr Dunn, a Company Policies and Work Procedures document which was on display on the workshop noticeboard. He also prepared an OH&S Work Procedures document which was also displayed on the workshop noticeboard. Mr Ferguson explained that Accute Scaffolding employees would attend the workshop on a daily basis prior to proceeding to a work site in order to receive directions from him and to pass on any relevant information about a particular work site. He also prepared for each individual a daily job sheet, and for each respective site a SWMS. A daily job sheet was prepared for Mr Lamey on the day of the accident. It set out in cursory terms Mr Lamey's tasks at the premises. The SWMS used for the premises set out the tasks of the scaffolders, which was to erect and dismantle scaffolding. Under "Personal qualifications" and "Special training required" appear the words: WorkCover Green Card SA - Advanced Scaffolder; SI - Intermediate Scaffolder; SB - Basic Scaffolder; Labourer - Log Book. 19 If the reference to "Labourer" is a reference to Mr Lamey then it does not accord with the agreed facts which were that he had not undertaken any required training course for scaffolding, nor was he completing a log book at the time of the offence. According to Mr Ferguson Mr Lamey's log book had been lost at the time of the accident. All the other workers at the premises were certified scaffolders. 20 Under the heading "Plant and Equipment Required" appears the words, "Hand tools, PPE". There was no reference in the SWMS to the use of fall arrest devices such as harnesses. 21 Mr Lamey did have an occupational health and safety training card which allowed him to work on construction sites in NSW. Mr Ferguson considered him a trainee scaffolder and paid him accordingly. When Mr Lamey was employed by Accute Scaffolding Mr Ferguson ensured that he was inducted. This was accomplished by Mr Ferguson who took Mr Lamey through Accute Scaffolding Terms and Conditions, a document which set out Mr Lamey's terms and conditions of employment. At the time he was employed by the corporation Mr Lamey also completed an Occupational Health and Safety and Training for Construction Work - General Course, later converted to a WorkCover Construction Induction Certificate. According to Mr Ferguson he personally provided verbal and physical training to Mr Lamey in relation to the use of fall protection equipment such as a lanyard and harness. He said he also advised Mr Lamey and Accute Scaffolding employees never to climb on the outside of scaffolding. Mr Lamey had also successfully completed a four hour training and practical course, presented by Mr Ferguson, on roof rail safety. 22 With regard to supervision, Mr Ferguson said he always placed a recognised supervisor at each site and that this was always noted on the daily job sheet. The daily job sheet for 28 August 2006 at the premises nominated Mr Linton as the team leader. Mr Ferguson described Mr Linton as one of the most experienced and confident scaffolders with whom he has worked. He considered Mr Linton to be a good leading hand. 23 These matters attest to a fairly comprehensive system of safety devised by Accute Scaffolding prior to the offence, and a genuine attempt to ensure the safety of its workers at work sites. They attest, equally, to failures to follow up comprehensive preliminary safety practices and procedures to ensure that what was implemented and taught was consistently followed and practised at the work sites. Nevertheless, the existence of systems of safety devised by Accute Scaffolding prior to the offence mitigate to some extent the objective seriousness of the offence. Other objective factors

24 There were, as earlier observed, a number of serious flaws in Accute Scaffolding's systems of safety. Despite Mr Ferguson's genuine efforts to instill in the workers the importance of not climbing on the outside of scaffolding (a practice which was extremely dangerous) it was allowed to continue as a practice to the detriment of Mr Lamey. This unsafe practice and the failures to have in place adequate fall protection, as well as Mr Lamey's lack of qualifications and inadequate supervision resulted in a risk to safety that was both obvious and reasonably foreseeable. It was put on behalf of Mr Ferguson that Mr Lamey's negligence was a "significant contributing factor" which should be taken into account in Mr Ferguson's favour. It was contended that Mr Lamey had acted with complete disregard for his safety and had climbed over the scaffolding when it was unnecessary for him to do so because there was an alternative safe means of descending to the deck below, which was via the internal stairway. 25 While the statutory obligations under the health and safety regulation extend to the requirement on the part of a defendant to ensure the safety of the reckless, careless, inattentive and even disobedient worker, the actions of a worker who places himself in a situation of danger because of some error or careless act on his part may impact on the degree of culpability of the person responsible for the safety of the worker: see Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146 at [15]; Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 145. 26 I do not agree however with Mr Ferguson's characterisation of Mr Lamey's conduct at the time of the accident. Mr Lamey, who was unqualified and was not a trainee for the purposes of the OHS regulation, should not have been permitted to undertake the scaffolding work. Mr Ferguson knew that Mr Lamey was not undertaking the appropriate course of study and that he was not completing a log book at the time of the accident. Mr Ferguson must also have been aware of the unsafe and very dangerous practice of workers climbing over the scaffolding. Mr Lamey was untrained and inexperienced. He should not be blamed for conduct which, although not condoned, was allowed to continue and against which legitimate and appropriate steps had not been taken to ensure that the practice was discontinued. 27 The risk of a fall from heights is well known in the construction industry. I endorse the comments of Boland J, President, made in the context of a lack of fall protection for workers working on the edge of a roof, in Inspector Jones v James Denson and Anor [2006] NSWIRComm 234 at [27] where his Honour said:

Given the danger of falling from a height of three metres, let alone six to seven metres, which may easily result in death as too many of the cases that come before this Court demonstrate, it beggars belief that an employer would not take steps nowadays to ensure that employees working at height were secure. 28 The likely or probable consequences of Mr Ferguson's breach of the 2000 Act is another factor which the Court is required to take into account in its assessment of the objective seriousness of the offence. Mr Lamey suffered serious injuries as a result of Accute Scaffolding's failures to provide a safe system of work for the workers at the premises. It is likely given the circumstances which include the fact that Mr Lamey fell 11.27 metres onto a concrete floor that the consequences of the breach could have been much more serious, that is, Mr Lamey's injuries could very well have been fatal. 29 Simple and straightforward steps to remedy the defects in Accute Scaffolding's system of safety were also available to it at any time prior to the offence. One such step would have been to ensure Mr Lamey only performed work he was qualified to perform. Another step would have been to have prohibited Mr Lamey from performing scaffolding work. A proper risk assessment could also have been undertaken in order to determine whether it was safe to re-commence the scaffolding work after lunch when the rain had ceased. These steps either alone or in combination would have eliminated or, at minimum, redressed the risk to safety. 30 General deterrence as an important principle of sentence must also be taken into account. As Boland J, President observed in Inspector Jones v James Denson at [35]:

Offences involving falls from heights in the building and construction industry occur with alarming regularity. There is a clear case in respect of both defendants for fixing a penalty at a level that will have an appropriate deterrent effect. 31 I adopt his Honour's observations in my assessment of the importance of general deterrence in the circumstances of this case. Accidents at work sites involving falls from heights are notorious and often result in fatalities. In particular, those persons working in the scaffolding industry invariably work at heights and are often being placed at risk to their safety. It is imperative that employers operating in this industry enforce appropriate safety measures with rigour and take steps to ensure that workers are continually made aware, through instruction, training and information, of the importance of managing the risks. There is an abundance of material available to employers to acquaint themselves with the necessary measures to help ensure that workers under their employ are safeguarded from the dangers of falling while working at heights. 32 Specific deterrence is also relevant. Mr Ferguson continues to operate as a sole trader in the scaffolding industry. Balanced against this is Mr Ferguson's demonstrated and genuine commitment to safety matters. These matters when considered together do not permit the Court to ignore the principle. A small component of the penalty will be imposed to reflect the need to apply specific deterrence. Subjective factors

33 Mr Ferguson has no prior convictions. The maximum penalty is therefore $55,000. The absence of prior convictions enables the Court to extend leniency which it could not otherwise extend to an offender with prior convictions. 34 Mr Ferguson also entered a plea of guilty to the charge at an early stage. I therefore assess an appropriate discount of penalty for the utilitarian value of the plea at 25 per cent. Mr Ferguson is, in addition, entitled to leniency in recognition of remorse shown by the plea of guilty. 35 Mr Ferguson also undertook extensive measures following the offence in an attempt to address the causes of the offence and ensure that such an accident could not happen again. One of the first steps taken was to re-induct all the workers in relation to the use of safety harnesses and the appropriate use of scaffolding and stairs and ladders. He also arranged for an external training expert to attend Accute Scaffolding's workshop and give instruction on the correct use of safety harnesses and lanyards. This took place on 30 August 2006, two days after the accident. The SWMS were also revised with the workers' input being taken into account. This prompt attention to addressing deficiencies in the safety system is laudable and is a further factor which will be taken into account in Mr Ferguson's favour, in mitigation of penalty. 36 Mr Ferguson also cooperated with WorkCover during the course of its investigation. He also expressed his sincere regret that Mr Lamey's safety was put at risk. He said that he felt responsible for Mr Lamey's accident and hoped that his plea of guilty reflected this. These matters will also be taken into account in mitigation of penalty. Capacity to pay

37 Mr Ferguson said he had only limited financial means with which to pay a fine. Accute Scaffolding ceased trading and since then Mr Ferguson has worked as a sole trader in the scaffolding industry. He shares a rented premises with his wife and three dependent children. He is the sole breadwinner and has modest assets worth in the vicinity of some $3000. He has had intermittent work since the accident and estimates that he has earned about $10,000 in six months. He said that he has not completed income tax returns for the last three financial years but estimates that he earned up to a maximum income of $40,000 each year. 38 Documentation attached to his affidavit records that Mr Ferguson is an undischarged bankrupt. His expected date of discharge is 14 December 2009. Bank statements of Michael Ferguson Scaffolding showing returns for the business during the period 1 June 2007 until 1 April 2009 were tendered on behalf of Mr Ferguson. Other financial records were tendered on his behalf. 39 Two matters need to be mentioned. First any fine imposed for a breach of the offence is not a provable debt in bankruptcy: Inspector Wilkie v Anstee (No 2) [2007] NSWIRComm 20 per Staff J. As Staff J emphasised, if a fine imposed under the 2000 Act became a debt provable in bankruptcy the burden of the fine would not be borne by Mr Ferguson but by his creditors whose dividend would therefore diminish: at [47]. Mr Ferguson is therefore liable for any fine to be imposed. Secondly, when considering the application of s 6 of the Fines Act 1996 the observation of Wright J, President (as he then was) in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209-210 should be borne in mind. In that judgment his Honour said: Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. [...] When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. 40 I return to the documentation that was tendered on Mr Ferguson's behalf as evidence that he has limited means with which to pay a fine. The bank statements for Michael Ferguson Scaffolding show for the period 1 July 2008 until 30 June 2009 a business income of $66,790. The statements also record a number of debits which cannot be readily identified as business related expenses. Other documentation provided by Mr Ferguson in support of the claim of limited means to pay a fine was in the name of his partner, Patricia Anne Booth. Again, the documentation was unclear as to whether it referred to a business or a personal expense. For example, a certificate of registration for a Toyota Dyna in Ms Booth's name noted that the usage of the vehicle was "general/private". Other documentation recorded 20 monthly loans of a short term length. They indicate that Mr Ferguson has on a regular basis been taking out monthly loans in the order of $2800 and repaying those loans, suggesting that Mr Ferguson has the capacity to meet his loan repayments. Although the documentation indicates that Mr Ferguson has ongoing liabilities it also indicates, (together with Mr Ferguson's evidence that he earned up to $40,000 per annum for the last three financial years), that he has generated income and has the capacity to pay a modest fine, at least. I find accordingly. Section 10 application

41 There was some discussion during the sentence proceedings centred around an application by Mr Ferguson that the Court exercise its discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and make an order dismissing the charge. The matters principally relied upon in support of the application included Mr Lamey's negligent conduct in climbing over the scaffolding despite having being instructed not to do so, Mr Ferguson's financial and emotional hardship suffered as a result of the accident and Mr Ferguson's excellent character. 42 An order under s 10 of the CSPA is only made in exceptional circumstances: WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [45] [50]. In my view the circumstances which give rise to the offence are such that it would be an inappropriate exercise of the Court's discretion to grant Mr Ferguson's application. There is no doubt that Mr Ferguson is a person of excellent character and that he sincerely regrets the circumstances of the accident and the injuries to Mr Lamey. These matters however are not sufficiently persuasive to attract the Court's discretion under s 10(1). The finding that the offence is objectively serious of itself would normally preclude the application being granted. Waterside Constructions

43 I adopt in these sentencing reasons the agreed facts tendered against Waterside insofar as they are in the same terms as those tendered in the proceedings against Mr Ferguson. 44 Waterside was the principal contractor at the premises. It had a site manager installed there, Mr Peter Bull. Mr Bull was responsible on behalf of Waterside for the day-to-day activities on the premises and for the work performed by sub-contractors. 45 The failures of Waterside, as particularised, which exposed the workers, including Mr Lamey, to a risk to their health and safety may be characterised respectively as a failure to ensure the workers were appropriately qualified, a failure to ensure their activities were adequately monitored and supervised and a failure to ensure the workers had undergone site inductions before commencing work. Systems of work in place at the time of the offence

46 Mr Lamey at the time of the offence had worked at the premises for some months. He was not a certified scaffolder. He was not a recognised trainee under the 2001 Regulation. He possessed no qualifications which would have allowed him to perform basic scaffolding work. Waterside did not conduct adequate checks to ensure that Accute Scaffolding's employees held appropriate licences or qualifications. Its practice was to have new workers at the premises complete a site registration form which included details of their qualifications. This usually occurred at the site induction. Mr Lamey did not complete a site registration form because he did not undergo a site induction. 47 Waterside's failure to ensure that Mr Lamey was appropriately qualified for the work he was undertaking reflects a failure to comply with its own written policies on this issue. Waterside at the time of the offence had a safety plan, entitled "Managing Occupational Health and Safety", dated 26 October 2005. In that Plan under a section headed "Risk Assessments & Systems of Work" appears the following: Where organisation's [sic] or individuals must hold a licence or qualification in order to undertake specific duties, perform work or operate equipment, ensure appropriate licences or qualifications are sighted, verified and recorded. 48 The person designated with the responsibility to ensure that the workers at the premises held the appropriate licence or qualification, was the site manager. At the time of the offence this was Mr Bull. Mr Bull in an affidavit said he was aware Mr Lamey was a worker at the premises employed by Accute Scaffolding but he had not had any direct contact with him prior to the accident. He also said that after the accident it came to his attention that Accute Scaffolding had failed to notify Waterside that Mr Lamey had commenced work at the premises. In a passage extracted from his affidavit Mr Bell deposed: Following the accident, it became apparent to me that Accute had started Mr Lamey on site without notifying Waterside beforehand. In the absence of this notification, he had not received a site induction from Waterside, and it was the responsibility of all subcontractors to advise when they sent a new worker to the site so that a site induction could be provided. This induction is will [sic] usually carried out by Waterside employees at the site, but not by me. It was impossible for Waterside to keep track of who was new to the site. Given the number of workers involved in the job, we relied on the subcontractors to keep us informed of all workers who had not been on the site before and had therefore not been inducted onto that site. We were never informed of Mr Lamey's first attendance on site by either Accute or PCH and this was why he never received a site induction. However, this is something that was only determined after his accident had occurred, and not beforehand. 49 In an earlier passage from his affidavit Mr Bull sought to explain that there were at the premises at any particular time six to eight scaffolders on site and up to 80 to 100 workers. He said it was, "impossible for me or for Waterside to keep track of which workers were new to the site". Later he said, "[I]t would have been impossible and impracticable for me to directly supervise either the scaffolders or any other sub-contractors since there were between 80 to 100 people working on that site at any one time". 50 These sentiments in my view purport to deflect responsibility from Waterside's statutory obligations to ensure safety onto other parties by reason of those parties' responsibilities of supervision. The fact that Accute Scaffolding, for example, had supervisory and other safety-directed responsibilities at the premises does not discharge Waterside from its obligations to ensure that the sub-contractors working on the project held appropriate qualifications. Waterside was the principal contractor with attendant responsibilities at the premises. It had a written policy directing it to "sight, verify and record" all licences and qualifications. If it were indeed impossible, as Mr Bull suggested, for Waterside to "keep track of" all new workers at the premises because they were too numerous, it was incumbent upon Waterside to devise a policy or a system capable of practical implementation. If the workforce was deemed too large no doubt steps could have been taken to provide Mr Bull with some assistance, in the form of a suitably qualified person, or persons, who could have carried out the appropriate safety instructions as directed by Waterside. 51 According to the agreed facts Waterside failed to monitor the activities of Accute Scaffolding in accordance with clause 227 of the 2001 Regulation in that it allowed the workers to recommence work on wet scaffolding, and failed to prevent Mr Lamey from climbing on the outside of the scaffolding. Waterside also failed to induct a number of sub-contracted workers to the site contrary to clause 213 of the 2001 Regulation. This latter agreed fact I take it is confined to Waterside's failure to conduct a site specific induction in respect of Mr Lamey in particular. 52 With regard to Waterside's failure to monitor the activities of the scaffolders upon resumption of the work, performed while the scaffolding was still wet, Mr Bull expressed the following opinion: Before going back to work after the rain the scaffolding or leading hand should have conducted an assessment of the structures to satisfy himself that the scaffolding was safe to work from 53 There can be no doubt that Accute Scaffolding was obliged to assess the risks to its workers arising from the wet scaffolding. Equally, there should be no doubt that Waterside, as the principal contractor, was obliged to monitor the activities of the scaffolders. If it were not feasible to do so directly then Waterside should have taken steps to ensure someone else, or some other entity, was monitoring their activities. Waterside has acknowledged its statutory obligations in this regard, in any event, by its plea of guilty. 54 Waterside's failures to ensure the safety of the workers at the premises reveals serious deficiencies in its systems of work at the premises. On the other hand Waterside had developed a number of systems and procedures focused on safety issues for use at the premises. Its Safety Plan has already been mentioned. Its Scope of Works for the premises with regard to the scaffolding work required that a work method statement be issued and signed off by "the builder" prior to any work commencing. Accute Scaffolding provided Waterside with its SWMS. This document was considered earlier in these sentencing reasons. It recorded under the heading "Personal qualifications" three categories of qualified scaffolders and one labourer. It indicated that the labourer utilised a log book. It conveyed the impression, perhaps unintended, that Accute Scaffolding's workers were either appropriately qualified or in the process of becoming qualified, and under the supervision of a ticketed scaffolder, in conformity with the 2001 Regulation. Waterside was entitled to rely on the contents of the SWMS as a preliminary measure in satisfying itself that Accute Scaffolding's workers, including Mr Lamey, were suitably qualified, trained, or undergoing appropriate supervision, to perform the work. 55 Anthony Robert Johnson who swore an affidavit on behalf of Waterside explained that Waterside as the principal contractor awarded the scaffold contract to PCH Group Limited and that PCH sourced its work crew from local sub-contractors, including Accute Scaffolding. Mr Johnson had been made aware of this arrangement in advance and had been assured on the basis of PCH's good reputation that it would only use experienced and skilled workers. The contract between Waterside and PCH contained various terms which sought to emphasise that the scaffolding company would operate safely. According to Mr Johnson Waterside convened a site meeting with representatives of both PCH and Accute Scaffolding on 25 August 2006, that is three days before the accident. One of the purposes of that meeting he said was to reinforce to the scaffolders the need to maintain safe work practices at the premises. He referred in particular to concerns held by Waterside about areas of incomplete scaffolding and the need to attend to this, as soon as possible. 56 The Safety Plan required all personnel on the premises to complete necessary induction training. The scaffolders were required to supply green cards as per the Scope of Works. Sub-contractors were advised that they were to present workers for a site induction prior to commencing work. It was an agreed fact that Waterside complied with its obligations as principal contractor to induct persons in respect of the majority of workers on the premises. 57 Other aspects of Waterside's safety procedures included the requirements in the Safety Plan that all new workers be inducted to the site, that all new workers complete a site registration form, and that the site manager "sight, verify and record" all necessary qualifications and licences. These latter aspects have been earlier referred to. The failure to attend to these matters constituted a serious deficiency in an otherwise reasonably comprehensive and effectively managed safety system. 58 The Scope of Works also required adequate supervision at all times and the presence on site of a suitably qualified site foreman. According to Mr Bull he was in daily communication with the scaffolders and other sub-contractors through regular tool-box meetings. Waterside also had site supervisors and a safety officer assigned to the premises. A site safety committee held weekly meetings which included a safety walk for the purpose of identifying hazards and other safety issues. Any safety issues identified by this means were followed up. Mr Bull said he had a practice of immediately drawing a sub-contractor's attention to any unsafe practices that he observed on site. 59 These matters demonstrate that Waterside did have a system at the premises for monitoring the activities of the scaffolders and other sub-contractors, which for the most part had been effectively implemented except for those deficiencies which have been earlier identified. The existence of its safety system at the premises in place and in force at the premises prior to the offence operates to reduce the objective seriousness of the offence. Reasonable foreseeability of the risk to safety

60 According to Waterside the foreseeability of a risk of fall from heights was "somewhat remote" having regard to the hand rail system, mid rail, toe board and chain wire mesh which were in place on the scaffolding deck from which Mr Lamey fell. It was contended on Waterside's behalf that the immediate and primary cause of the accident was an act of casual negligence by Mr Lamey. 61 I have earlier dealt with a similar contention made on behalf of Mr Ferguson concerning Mr Lamey's conduct as a contributory factor which it was said should be taken into account as mitigating the objective seriousness of the offence. For the same reasons I reject any suggestion or contention made on Waterside's behalf that Mr Lamey's conduct in any way mitigates the objective seriousness of its offence. Mr Lamey was unqualified and should not have been permitted to undertake the scaffolding work. Mr Lamey's status as a person unqualified and untrained to work on the scaffolding was a matter about which Waterside should have and could have made enquiries. Had its "paper system" functioned more effectively then Mr Lamey would have undergone a site induction which no doubt would have revealed his lack of qualifications and inexperience and enabled Waterside to act responsibly to prevent him from working on the scaffolding, or on the premises. 62 As to the foreseeability of the risk of a fall from heights no other reasonable conclusion is available other than that the risk was foreseeable. Mr Lamey was working on incomplete scaffolding. He slipped on a lapboard which had not been secured. It is not the fact that Mr Lamey's conduct in climbing on the outside of the scaffolding may not have been foreseeable (which in any event focuses more on the accident than on the risk) it is the combination of factors such as Mr Lamey's lack of qualifications, training and experience while working at heights without adequate supervision or monitoring, that facilitates the conclusion that the risk of falling was reasonably foreseeable. Other objective factors

63 The likely or probable consequences of Waterside's offence is another factor which the Court is required to take into account in its assessment of the objective seriousness of the offence. Mr Lamey suffered serious injuries as a result of Waterside's failures earlier described. It is likely given the circumstances which include the fact that Mr Lamey fell 11.27 metres onto a concrete floor that the consequences of the breach could have been more serious in that Mr Lamey could have sustained more serious even fatal injuries. 64 Waterside could also have taken a number of available and relatively straightforward steps to remedy the defects in its safety system and have averted, or substantially minimised, the risk to safety. Closer monitoring of the incoming scaffolding workers to the premises to ensure their qualifications and licences were checked could have occurred. Additional measures, such as the allocation of an additional person might have ensured that persons such as Mr Lamey could not have entered the premises and performed work while remaining all the while outside Waterside's systems. Mr Lamey had managed to avoid being processed under Waterside's system for a not inconsiderable period of time. He had been working at the premises for a period between two to five months without having come to Waterside's attention as someone who had not been site inducted, or had his qualifications checked or completed a site registration form. 65 General deterrence is an important principle of sentence which must also be taken into account. As Boland J, President said in Inspector Jones v Denson at [35]:

Offences involving falls from heights in the building and construction industry occur with alarming regularity. There is a clear case in respect of both defendants for fixing a penalty at a level that will have an appropriate deterrent effect. 66 I adopt and apply here the observations I made earlier with regard to the application of the principle in Mr Ferguson's case, with particular emphasis on the regularity and severity of injuries sustained from falls from heights on construction sites. 67 Specific deterrence is also relevant. Waterside continues to operate in the building industry as a principal contractor. Nevertheless Waterside has since the accident taken considerable steps to improve its safety practices and procedures. This will be addressed in more detail shortly. For present purposes, the continuing involvement of Waterside as a principal contractor in the building industry means there is a possibility at least that workers under its control may be exposed to risks to their health and safety. A component of the penalty to be imposed will therefore reflect the necessity to apply specific deterrence in sentencing Waterside. Subjective factors

68 Waterside entered its plea of guilty at an early stage. I assess a discount of 25 per cent for the utilitarian value of the plea. Waterside is, in addition, entitled to leniency in recognition of the remorse shown by its plea of guilty. 69 Waterside has no prior convictions. The maximum penalty is therefore $550,000. The absence of prior convictions enables the Court to extend leniency which it could not otherwise extend to an offender with prior convictions. 70 Since the offence Waterside has reviewed its safety materials and procedures and followed advice and information received from WorkCover. It has also undertaken further training of its supervisors and employees and authorised a full audit of its health and safety systems which was carried out by an external auditor. Waterside, according to Mr Johnson, implemented and adopted all recommendations and advice received from the external auditor. All sub-contract agreements entered into by Waterside now require the prior approval of the external auditor before work is undertaken pursuant to the contracts. The external auditor is to ensure that all prospective sub-contractors are properly certified to safely undertake the work. These matters demonstrate Waterside's genuine and ongoing commitment to the safety of all personnel under its control. 71 Waterside also cooperated fully with WorkCover during the investigation of the accident. Nick Andriotakis, Waterside's director, expressed in an affidavit sworn on behalf of Waterside, his sincere regret that Mr Lamey was injured at the premises. He said that Waterside has revised its work management process as a result of the accident, including the audit of its safety systems. He expressed confidence that the conduct giving rise to the offence will not be repeated. 72 These subjective matters will all be taken into account in Waterside's favour in mitigation of penalty. Respective roles: Mr Ferguson and Waterside

73 It remains to consider submissions as to the respective roles or culpabilities of Mr Ferguson and Waterside. 74 According to the prosecution Mr Ferguson in his role as manager of Accute Scaffolding was responsible for overall management. He was also a qualified and experienced scaffolder with day to day control of operations of Accute Scaffolding and had a high level of involvement in operational matters at the premises. He directed on a daily basis what work was to be performed by Accute Scaffolding's employees, including the work performed by Mr Lamey. He was involved in the drafting of the SWMS, which was deficient in several respects. Accute Scaffolding's site supervisor at the premises, Mr Dunn reported directly to Mr Ferguson. Mr Ferguson was also aware that Mr Lamey was not undertaking a course of study and was not completing a log book at the time of the offence. 75 It follows from these matters that Mr Ferguson knew that Mr Lamey should not have been permitted to undertake the scaffolding work at the premises. Accute Scaffolding was also aware and Mr Ferguson, given his direct role in the work undertaken at the premises, must also have been aware, of the unsafe work practices in which employees of Accute Scaffolding from time to time climbed on the outside of the scaffolding frame. Mr Ferguson's knowledge of these matters in my view places his culpability with respect to Waterside at a higher level, where this would not ordinarily have been the case given Waterside's role at the premises as principal contractor: see Inspector Melissa Chaston v Sacco Builders Pty Ltd and Others [2008] NSWIRComm 152 at [42] to [49], affirmed on appeal in Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153 at [57] to [59] per Boland J, President and Staff J. 76 With regard to Waterside's role the prosecution emphasised its status as principal contractor at the premises with its attendant responsibilities to ensure safety at the site and its obligations towards sub-contractors including Accute Scaffolding to ensure their safety. The prosecution conceded that the role of Waterside in the circumstances giving rise to the offence was lower than that of Accute Scaffolding and Mr Ferguson, although not significantly so. 77 Waterside submitted that the Court should assess its culpability by reference to the roles of PCH and Accute Scaffolding. Apart from the evidence which disclosed that PCH was required under its contract with Waterside to attend to various matters of safety there is little material available to the Court by which a proper assessment of its role at the premises can be considered. An annexure to Mr Johnson's affidavit shows that PCH and Accute Scaffolding attended the meeting on 25 August 2006 to discuss various matters including the concerns of Waterside that the scaffolding was incomplete and needed rectification. Given the paucity of material the Court is unable to properly assess what culpability if any may be attributable to PCH with regard to the circumstances of the offences. 78 I agree in the main however with the submissions made on Waterside's behalf which suggest that the culpability exhibited by it in relation to the circumstances of the offences is less than the culpability of either Accute Scaffolding or Mr Ferguson. An important distinguishing feature is Mr Ferguson's knowledge of the matters earlier referred to in respect of Mr Lamey's work at the premises. Otherwise I do not find persuasive Waterside's contention that because Accute Scaffolding was "the first line of supervision" it exhibited a higher level of culpability: as to which see Inspector Melissa Chaston v Sacco at [42] [43]. 79 I therefore assess Waterside's culpability as less than that of Mr Ferguson and Accute Scaffolding in the circumstances giving rise to the offences. Penalty

80 In determining penalty against both defendants I have taken into account the objective seriousness of the offence, the maximum penalties, factors in mitigation, absence of prior convictions and respective culpabilities. All matters have been considered by reference to the CSPA in particular s 21A. Orders

81 In Matter No IRC 1415 of 2008 I make the following orders: (1) Michael Ferguson is convicted of the offence. (2) Michael Ferguson is fined $12,000 with a moiety to the prosecutor. (3) Michael Ferguson is to pay the reasonable costs of the prosecutor as agreed or assessed. 82 In Matter No IRC 1414 of 2008 I make the following orders: (1) Waterside Constructions Pty Limited is convicted of the offence. (2) Waterside Constructions Pty Limited is fined $97,500 with a moiety to the prosecutor. (3) Waterside Constructions Pty Limited is to pay the reasonable costs of the prosecutor as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (32 paragraphs)

Parties

Cases Cited (8)

Cited By (2)