Inspector Nguyen v Western Sydney Area Health Service - [2003] NSWIRComm 268 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

Inspector Nguyen v Western Sydney Area Health Service

[2003] NSWIRComm 268

Industrial Relations Commission (NSW)|2003-07-22|Before: Boland J, Mr J, Ms P

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Court

Industrial Relations Commission (NSW)

Decision date

2003-07-22

Before

Boland J, Mr J, Ms P

Source

Original judgment source is linked above.

Judgment (91 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Nguyen v Western Sydney Area Health Service [2003] NSWIRComm 268 PROSECUTION Inspector Nguyen PARTIES : DEFENDANT Western Sydney Area Health Service FILE NUMBER: IRC 2661 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety Act - Prosecution under section 15(1) of Occupational Health and Safety Act - Injuries sustained by security guards whilst on duty in hospital car park - Inadequate lighting - Timing of guilty plea - Comparative sentences - Offence proven - Penalty imposed Health Services Act 1997 (NSW) LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Atholwood v The Queen (1999) 109 A Crim r 465 Cameron v The Queen (2002) 209 CLR 339 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Wolf v BHP Steel (AIS) [2003] NSWIRComm 119 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 R v Ellis (1986) 6 NSWLR 603 CASES CITED : R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Winchester (1992) 58 A Crim R 345 Regina v Carter [2001] NSW CCA 245 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Searle) v Western Sydney Area Health Service (2001) 111 IR 414 WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 WorkCover Authority v Integral Energy (2002) 113 IR 315 HEARING DATES: 07/22/2003 DATE OF JUDGMENT: 08/15/2003

[21]

8 The statement also described the result of inspections of the carpark and surrounds undertaken by Inspector Clark on 29 May and 6 June 2000 as follows: 10 At approximately 11.40am on 29 May 2000 and 4.00pm on 06 June 2000 Inspector Clark of the WorkCover Authority attended the Blacktown Hospital and made inspections of the Bungarribee House carpark. As a result of the inspections a series of coloured photographs were caused to be taken, sketch plans drawn and factual inspections compiled. The observations of Inspector Clark revealed the following (Annexure A: 24 photographs; Annexure B: 2 sketch plans): (a) the Bungarribee House carpark was approximately 75 metres in length and 19 metres in width; (b) 27 car parking spaces were located along the western boundary of the carpark and approximately 5 bus spaces and 8 car spaces were located along the eastern boundary of the carpark; (c) to the west of the western boundary of the carpark was located a 2 metre wide grassed area and a 1.5 metre high colour bond steel fence that extended the length of the carpark. The fence constituted the boundary between the hospital grounds and domestic premises; (d) to the east of the eastern boundary of the carpark was located Bungarribee House. The building alignment of the western wall of Bungarribee House (the wall nearest to the eastern boundary of the carpark) stepped away from the carpark at three points with the effect that the building alignment was located between 2 to 9.5 metres from the eastern boundary of the carpark; (e) several light fittings were installed at different positions along the western wall of Bungarribee House near the eastern boundary of the carpark and, because of the building alignment, were between 2 and 9.5 metres from the eastern boundary of the carpark. The light fittings were small wall mounted fittings. (f) a flood light was mounted to the southern wall of Bungarrribee House near the southwestern corner of the building and directed to a turning circle located at the southern end of the carpark. A second flood light was mounted to the northern wall of Bungarribee House near the north western corner of the building and directed to walkways leading from the north eastern boundary of the carpark; (g) there were no lights directed to the Bungarribee House carpark; and (h) between the date of the first inspection and the second inspection bushes situated between Bungarribee House and the eastern boundary of the carpark were heavily pruned and five (5) 500 watt floodlights installed on the western wall of Bungarribee House and directed toward the Bungarribee House carpark.

[26]

12 The statement explained that implementation of the defendant's draft Manual was delayed until a date after the 28 May 2000 due to industrial disputation. The statement continued: 16(a) During December 1997 in response to the Improvement Notice the defendant caused Philip Tapper, employed by the defendant as the OH & S Manager and Robert Bradley, employed by the defendant as the Senior OH & S Coordinator, to carry out the required assessment. … (b) the Review analysed the number of incidents at Blacktown Hospital involving aggression/violence or the potential for aggression/violence which had occurred over a three-month period from 8 September 1997 to 7 December 1997. It was concluded that the greatest percentage of incidents (35%) occurred at Bungarribee House which was nominated in the Review as a "High Risk Department". These incidents occurred within Bungarribee House. The third greatest percentage of incidents were concluded to have occurred in Carparks and Other External Areas (12%). It was observed in the Review that "The Security Department plays a major role in responding to incidents of violence and aggression at Blacktown Hospital with the systems used in key areas relying on effective assistance from the security officers"; (c) in identifying controls to eliminate or minimise risks to the safety of security staff at Blacktown Hospital a number of recommendations were made in the Review. Recommendation 6 in the Review recommended that the OH&S Unit conduct a survey of lighting levels at the hospital. This recommendation followed a finding in the Review that, "lighting levels have not been taken in the carparks and other high risk areas to ensure that the light levels meet the appropriate standards"; (d) on 05 February 1998 a copy of the Review was forwarded to and received by Mr C Osborne, employed by the defendant as the Executive Director, Blacktown - Mount Druitt Health Service; (e) prior to 20 March 1998 Robert Bradley, in accordance with recommendation 6 of the Review, conducted a review of lighting in the car parks at Blacktown Hospital; (f) on 20 March 1998 Robert Bradley reduced the outcome of his review to writing in the form of a memorandum that was forwarded to John Clement, employed by the defendant as a Facilities Manager. The memorandum contained the results of the Review of lighting in carparks at Blacktown Hospital which had been conducted by Bradley. In relation to the Bungarribee House car parks the results of the review were: "The lighting is very poor. The general lighting in the area does not light the carpark. Additional lighting for the carpark should be provided. ____________________________________________________________ The lighting is very poor. There is no lighting in the area from the boom gate until the light on the corner near the main entrance. A sensor light on the corner of the building near the boom gate is blocked by vegetation. Additional lighting for the carpark should be provided." (g) minutes of a 17 November 1999 OH&S Committee, Blacktown campus, meeting recorded: 6.1 Lighting Surveys A question was raised in regards to the frequency of Lighting Surveys. It was acknowledged that the last survey was completed less than 12 months ago. The surveys are conducted on a regular basis via the Deputy Director Corporate Services group in conjunction with Maintenance and Security.

[27]

(h) the only activity connected to lighting that was carried out between Bradley's 20.3.98 survey and the OH&S Committee minutes of 17.11.99 was an audit carried out by security officers in May 1999. The audit resulted in a list of repairs to be carried out to various light fittings in the Blacktown campus, at a cost of $1,250.00. The list made no specific mention of Bungarribee House or its carparks. (i) on 3 April 2000 David Tape ("Tape"), Manager, Security Services at Blacktown and Mt Druitt Hospitals, WSAHS, sent a memorandum to the OH&S Unit (Cumberland campus) requiring a lighting survey of the Blacktown campus and carparks. The memorandum states, "Your earliest assistance would be appreciated". On 16 May 2000 Tape sent a second memorandum addressed to Clive Bradburn of the OH&S Unit requesting a lighting survey of the Blacktown Hospital Campus. Tape made the requests set out in his memoranda as he formed the opinion that "some areas were poorly lit and there was area with no light at all"; (j) both of Tape's memoranda were also forwarded to Susan Shaw, employed by the defendant as the Deputy Director, Corporate Services. Susan Shaw did not supervise the OH&S Unit (Cumberland Campus); (k) Minutes of the Blacktown Campus Occupational Health and Safety Committee dated 17 May 2000 record that a lighting survey is to be conducted "very soon" in conjunction with the Cumberland OH&S Unit; and (l) as at 28 May 2000 no such lighting survey had been completed by the defendant and no additional lighting provided to the Bungarribee House carpark in response to the suggestion made by Bradley in his memorandum of 20 March 1998. 17 On 30 May 2000 the defendant caused to be installed five (5) 500 watt floodlights around Bungarribee House in order to provide lighting to the Bungarribee carpark. 18 On 2 June 2000 the defendant caused lighting assessment's of all carparks and regularly used egress routes on the Blacktown Hospital Campus to be undertaken. The first reading in the Table referred to a different car park ie the Embark car park. Lux readings taken at 8 separate locations within the boundaries of the Bungarribee House carpark established that lighting levels in all 8 locations were below the average lux levels as required by AS4485.1-1997 and lighting levels in 5 locations below the minimum lux levels as required by AS4485.1. 19 …

[29]

· A description of the operation of the defendant with particular reference to the upgrading of the Blacktown Hospital site between 1997 and 2000 including the construction of carparks; · A description of the escort service at the Hospital including the job description for a security officer; · The development of a security policy at the Hospital including risk assessments, the development of safe work practices including confronting aggression and the development of a security awareness handbook. It was noted that "All staff are required, according to WSAHS OH&S Policy to endorse Safe Work Practices. Failure to do so results in disciplinary action." · The implementation of security policy including the requirement for patrols to be carried out in a "buddy system" and that a radio and torch were to be carried; · A reference to the incident on 28 May 2000 and, in particular, that Ms Bonello and Mr Gladwell were not carrying torches at the time of the attack and that Mr Gladwell and Ms Bonello failed to comply with the safe work practices: "Challenging suspicious activity in tandem"; "Working in tandem"; "Confronting aggression"; · The incidence of violence and aggression in Bungarribee House including that to the deponent's knowledge there had not been any incident of violence and/or aggression in the Bungarribee House carpark prior to 28 May 2000 although there had been such incident in the House itself and in other carparks. · Reviews of lighting in the grounds and carparks of the Hospital in 1996 and 1998. A finding in 1998 that lighting in the Bungarribee emergency and main carparks was "very poor" and the steps taken to install adequate lighting; subsequent complaints by neighbouring residents regarding the lights in the carpark; continuing difficulties with complaints by residents about the lighting in 2000; the conduct of further lighting surveys in June, July and October 2000; the installation of a new lighting regime in 2001 including pole mounted luminaries being installed along the western boundary of the Bungarribee House carpark; · Details of the incidents involving prior prosecutions under the Act; · Occupational health and safety policies and procedures including training of staff and auditing arrangements.

[37]

17 Ms Backman contended that the risk to safety presented by the inadequate lighting in the carpark was both obvious and known to the defendant. It was submitted this added to the seriousness of the offence: WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 at 452; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 at 267. Ms Backman submitted: The chronology of events which identified inadequate lighting of the Blacktown campus and in particular of its carparks, and the risk associated with that inadequate lighting, commenced at least as far back as 5 February 1998. From that date until 28 May 2000 the defendant was on notice that security officers on patrol within the Blacktown Hospital campus were at risk of being subjected to aggressive and/or violent incidents or potentially aggressive and/or violent conduct and that one of the controls recommended to eliminate or minimise the risks to the safety of security officers at Blacktown Hospital was ensuring that lighting levels in the hospital carparks (which as at 28 May 2000 had not been taken) met appropriate standards … Notwithstanding the defendant's awareness of the identification of inadequate lighting of the carparks and the identified attendant risks to security officers' safety, the defendant did not, on or prior to 28 May 2000, ensure that the lighting levels within the Blacktown Hospital campus were assessed to see whether they met the "appropriate standards". The task of assessing whether the lighting met Australian Standard 4485.1 recommendations was not performed until 2 June 2000, at which time the assessment of the Bungarribee carpark revealed that at 9 separate locations within that carpark average lighting levels were below the levels required by AS4485.1-1997 and lighting levels in 5 of the 9 locations within the carpark were below the minimum levels required by the Standard. (These levels were taken after the addition of 5 x 500 watt floodlights to Bungarribee House on 30 May 2000.) In addition, between 5 February 1998 and 28 May 2000 the issue of inadequate lighting had consistently been brought to the defendant's attention: a. Tapper and Bradley Review; b. 20.3.98 Bradley's lighting survey which identified the lighting of Bungarribee emergency carpark and Bungarribee main carpark as "very poor"; c. 17.11.99 OHS Committee minutes of meeting which recorded a query raised in relation to the frequency of lighting surveys; d. 3.4.00 Tape's memorandum requesting the defendant conduct a lighting survey of the Blacktown campus including its carparks; e. 16 May 2000 Tape's second memorandum requesting the defendant conduct a lighting survey of the Blacktown campus.

[46]

25 Ms P E McDonald of counsel appeared for the defendant. Ms McDonald canvassed the relevant principles relating to sentencing. Ms McDonald submitted that the risk to health and safety identified in the charge is the risk of employees being subjected to acts of violence and/or aggression whilst walking in the Bungarribee House car park at night. She submitted that: Generally, WSAHS recognised that there was a degree of violence and criminal activity in and about the Hospital. However, WSAHS had not foreseen that the risk would arise in respect of the Bungarribee House car park. Bungarribee House was a psychiatric unit located within Blacktown hospital …The car park was adjacent to the unit and on its western boundary were private residential …The Register of Serious Incidents attended by security officers for the period 1996 to March 1997, revealed that with the exception of 2 incidents the Bungarribee house incidents involved the restraint of patients within that building. The vast majority of incidents reported occurring in car parks referred to theft of vehicles and occurred in other main car parks within the Hospital grounds … As recognised by Wright P. in Ferguson v Nelmac (1999) 92 IR 188 at 210, when determining culpability a Court can have regard to reliance on hindsight and to the fact that the previous experience of the defendant had not alerted it to the particular danger. As deposed by Susan Shaw there had not been any incidence of violence and/or aggression in the Bungarribee House car park prior to 28 May 2000 …The Bungarribee car park was a relatively small car park which was used at night by the skeleton staff who were employed at Bungarribee House … Although the Tapper and Bradley Review recognises that staff rely on assistance from security guards in the management of violence and aggression it was noted that the same number of incidents occurred during the day and at night … The previous attack on Ms Bonello occurred during the day and in circumstances in which she disregarded procedures again when she approached the persons alone and without recharging her radio battery.

Inspector Nguyen v Western Sydney Area Health Service

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