Inspector Ochoa v East Sun Building Pty Ltd & Gao

Inspector Ochoa v East Sun Building Pty Ltd & Gao - [2010] NSWIRComm 91 - NSWIRComm 2010 case summary — Zoe

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Following the incident Mr Williams revised his policies and procedures including safe work method statements, risk assessments and site specific inductions and implemented daily tool box talks. 8 In addition to this document, certain other documents became evidence including a series of photographs, factual inspection reports, a work method statement and safety plan formulated by Southern Cross Plastering, an extract from Australian/New Zealand Standard A576.1:1995 dealing with scaffolding and information recording that the defendants have no prior convictions for any offence under the Act. 9 For the defendants, there was tendered into evidence an affidavit of Mr Gao and an affidavit of his wife, Zhong Yung Chen, who was the sole director of East Sun. 10 It will be seen from the agreed statement of facts that there were a number of key personnel involved in the work being carried out at the construction site. Mr and Mrs Woodmore were the owner builders and Mr Woodmore personally had some involvement in the construction industry. Mr Mulder's role was as project manager and foreman. On this basis, it may be assumed that he had overall responsibility for the management of the building works being carried out. Southern Cross Plastering, of which Mr Williams was the principal partner, was contracted to undertake plasterboard and gyprock work. It was Mr Williams who in turn subcontracted that work to a number of persons (some of whom were engaged through companies) including East Sun Building Pty Ltd, the manager of which was Mr Gao. Mr Gao in turn arranged for the injured worker, Mr Lin, to carry out work on the site. This arrangement is not uncommon in the building industry. Building work seems habitually to be carried out by persons who are predominantly engaged as contractors. They perform work in a range of specialised trades. 11 [16] and [17] of the agreed statement of facts deal with Mr Gao's understanding of the relationship between East Sun and Southern Cross. There is some indication that Mr Gao was uncertain about that relationship and the status of the persons whom he had engaged to carry out work at the premises including Mr Lin, those persons being named in [17]. 12 There is amplification of these matters in the affidavit of Mr Gao. He said he was telephoned in early November 2007 by Mr Williams, with whom he had previously worked, and agreed to carry out some work at the particular site. He said he thought that he was being employed to do the job. Mr Williams requested that he "bring more people" and as a result Mr Gao arranged for others to attend the site including Mr Lin. It was Mr Gao's evidence that he only provided labour at the construction site and that his understanding was that all materials and equipment to do the job were to be made available by others. 13 In his affidavit Mr Gao said that Mr Lin attended the site on 10 November 2007 and he checked his construction induction card "which was valid". He was told by Mr Lin that "I have worked as a plasterer in China and have plenty of experience". He then left Mr Lin to do the work which was needed to be done. He was not aware that Mr Lin was working on the first floor level where the incident occurred. 14 In his affidavit, Mr Gao said that he had received an assurance from someone at the site that the scaffolding was "good". 15 Mr Lin's circumstances are also set out in paragraphs [19] to [22] of the agreed statement of facts. 16 A version of a communication between Mr Gao and Mr Williams concerning the scaffolding is contained in paragraphs [33] to [36] of the agreed statement of facts. In that there is an inconsistency between what is contained in those paragraphs and the evidence of Mr Gao as contained in his affidavit, the prosecutor accepted that the Court should proceed on the basis that those matters adverse to the interests of the defendants had not been proven beyond reasonable doubt. 17 I should state, however, that the defendants conceded by their plea of guilty, as was confirmed by their solicitor during the course of the hearing, that East Sun was a contractor to Southern Cross and that Mr Lin was an employee of East Sun. 18 There are a number of observations that can be made about the conduct and omissions of East Sun at the construction site. As is conceded, East Sun did not undertake any risk assessment in relation to the carrying out of work on the wooden scaffold and did not identify hazards and assess risks to prevent falls from heights at the premises. It did not provide a safe work method statement to anyone. It did not provide its workers with work procedures or a safe work method statement in relation to the work that they were to perform and those performing that work "essentially determined how they carried out their work themselves." Furthermore, as is set out in [51], "East Sun were not able to provide information on how they determined Mr Lin's competency to undertake gyprocking and plastering work at the premises." 19 Mr Gao's involvement with Mr Lin is also set out in [52] of the agreed statement of facts, which I reproduce hereunder: [52] Mr Lin did not speak or understand any English and any instruction provided to him had to be via Mr Gao. Mr Lin was instructed by Mr Gao that the work he was to do at the premises was to finish the plastering to the end. Mr Lin was not provided with any instructions as to how he was to undertake the plastering, nor was he provided with any safe work method statements or work procedures or given any training in relation to the work he was to undertake. Mr Lin was verbally told by Mr Gao to be cautious and safe when using ladders, he was given no safety instructions in relation to the scaffold at the premises. 20 In assessing the objective seriousness of the offence, I am required to proceed on the basis of the contractual relationship between East Sun and Southern Cross Plastering and the relationship between East Sun and the persons whom it arranged to carry out work as now known and acknowledged by the defendants. That is, Southern Cross Plastering contracted out certain work to East Sun and East Sun employed a number of persons for this purpose including Mr Lin. This is to be contrasted with Mr Gao's understanding of the relationship of East Sun as he thought it to be prior to the incident. That is, accepting the evidence given in the proceedings at its face value, there was some uncertainty as to Mr Gao's own personal relationship with Southern Cross Plastering and some understanding that the persons whom he had organised to perform work were to be employees of Southern Cross Plastering. 21 Because of the absence of any paperwork at all, as referred to in the agreed statement of facts, I am unable to draw any conclusions about what any of the persons involved intended, save for the adoption of the evidence which is clearly set out in the agreed statement of facts and the affidavit of Mr Gao, to which I have previously referred. Nevertheless, as I have said, I must proceed on the basis conceded by the defendants that there was a contractor relationship between East Sun and Southern Cross Plastering and Mr Lin was an employee of East Sun. On this basis, it is clear that there was a manifest failure on the part of the corporation East Sun and on the part of its manager Mr Gao to attend to any of the four matters particularised in the amended application for order. This needs to be understood in the context of the engagement of Mr Lin who spoke no English and whose experience in working in the construction industry in Australia is unknown. 22 In all the circumstances, the breach by the defendant East Sun must be regarded as a most serious one, and this reflects on the culpability of the defendant Mr Gao. 23 In assessing an appropriate penalty, I shall have regard also to the deterrent effect that such a penalty will provide both generally within the construction industry and specifically for these defendants. 24 There are some subjective factors that the Court is entitled to take into account in mitigation of any penalties to be imposed. Neither defendant has any prior convictions, and both entered a plea of guilty at the earliest appropriate time, as conceded by the prosecutor. Furthermore, there is evidence that the defendants co-operated with the WorkCover Authority in and about its investigations of the accident and there have been expressions of contrition and remorse. 25 There is little or no evidence concerning the defendants' commitment to occupational health and safety matters prior to the incident. The Court was informed by the defendants' solicitor during the course of submissions that they now accept a greater degree of involvement in the safety environment in which work is carried out, notwithstanding that the company's business involved the supply of labour only. The defendants are now reluctant to engage other workers and Mr Gao predominantly is involved only in work that he performs himself. He now adopts policies formulated by the WorkCover Authority of New South Wales and his son interprets those documents for him. 26 Both defendants asked that the provisions of s 6 of the Fines Act be applied to their circumstances. That section is in the following terms: 6 Consideration of accused's means to pay

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(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount 27 I note for completeness that s 4(f) of that Act defines a fine to include, relevantly for the purposes of these proceedings, legal costs payable to the prosecutor. The Court was informed that those costs were of the order of $9000 for each defendant. 28 Ms Chen annexed to her affidavit the latest available financial statement for East Sun, namely for the year ended 30 June 2008. There was disclosed an income of $104,576 and expenses of $104,599. Included in the expenses was an amount for directors' fees of $28,880. There is a further amount shown for "contracting work" and there can be no certainty as to whether this represents monies paid to Mr Gao. There is a deficiency of assets, after taking into account liabilities, of about $400. Bank statements, which I assume are intended to reflect the only accounts operated by East Sun, were made available for the period 7 October 2009 to 31 December 2009. The opening balance was $1444 and the closing balance a debit of $4973. I would conclude from the available evidence that the company East Sun has no assets. 29 Mr Gao annexed his income tax return for the year ended 30 June 2008 to his affidavit. It appears to show income by way of director's fees of $9001. There is other income and expenses referable to an investment property. However, in his affidavit Mr Gao says that he had previously owned an investment property which was sold "in or about March 2008 at a loss." He appended to his affidavit a bank statement, which he said was referable to the only bank account that he conducted, showing a debit of $1.00 as at 1 February 2010. In his affidavit Mr Gao said "I have jobs here and there but are infrequent. I have no other bank accounts and no assets." 30 I conclude on the basis of the evidence given by Mr Gao that he has limited income and no assets. 31 There are a number of decisions of this Court which discuss the in principle approach to be taken when considering the application of s 6 of the Fines Act to the circumstances of defendants in prosecutions under the Act. In McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353, a Full Bench of the Court said:

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(h) to deal with the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work. 40 In particular, s 3(f) is designed to facilitate the dissemination of information that will enhance community awareness of occupational health and safety matters. Whilst information given in a general sense is always useful, in my experience information about particular incidents and particular circumstances provides a more graphic illustration of the type of issues that may arise in practice. 41 I raised this matter with the parties because all agreed that the circumstances surrounding the incident which gave rise to these proceedings are frequently encountered within the building industry. This was a small residential construction site. The work was carried out solely by contractors, save for Mr Lin who East Sun acknowledged for the purpose of the proceedings was its employee. There were different levels of control. These ranged from the project manager to the principal plastering contractor down to the plastering subcontractor and the persons who were engaged by it. There were differing but concurrent obligations at each of these levels to comply with the provisions of the Act. Unlike the situation on large construction sites involving significant and substantial contractors and subcontractors with some degree of organisation and structure, there appears in the circumstances of this incident a significant lack of organisation and structure. Whilst it might be thought that the deployment of labour even on small building sites was a simple matter and that everyone would know what to do, the facts as revealed by these proceedings indicate that often the fact that no-one is injured is as much a matter of good luck as of good management. The situation was compounded by the fact that Mr Lin could neither read nor understand English and the only person who could communicate with him was Mr Gao. 42 Because it is clear that these circumstances are representative of what is happening in parts of the building industry, I intend making orders under s 115 of the Act. Those orders will be made in the same terms in each of the proceedings. The intention is that, as each of the defendants agreed, they would contribute between them up to $3000 for the placement of an advertisement in a number of newspapers circulating throughout New South Wales. 43 The WorkCover Authority of New South Wales helpfully provided information concerning those language newspapers in which such an advertisement might be inserted. They specified Mandarin, Cantonese, Korean and Spanish being "the nationalities which predominantly undertake work in the finishing trades in the construction industry." 44 I should add that the WorkCover Authority of New South Wales provided information that sets out the manner in which it currently communicates to culturally and linguistically diverse people. It conducts advertising campaigns in a number of publications and using also radio stations, media statements and releases placed on its website, which are undertaken in a variety of languages. It also publicises information to migrant service organisations. Furthermore, its construction team consists of inspectors who provide a number of language skills to assist its work in promoting safe work environments in the construction industry. 45 Because s 115 provides that the action to publicise the matters referred to must be "specified" and so as to avoid any doubt concerning the validity of any order made, I have drafted a form of advertisement which I intend being the subject of an order for publication. The publication would probably need to be confined to one only occasion in a newspaper having as wide a circulation as possible throughout New South Wales in English, Mandarin, Cantonese, Korean and Spanish. The advertisement is in the following terms:

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Inspector Ochoa v East Sun Building Pty Ltd IRC 1212 of 2009 Inspector Ochoa v Williams IRC 1214 of 2009 and Inspector Ochoa v Mulder IRC 1215 of 2009 The WorkCover Authority of New South Wales charged three defendants with breaches of the Occupational Health and Safety Act 2000. Each pleaded guilty and each has been convicted of an offence under the Act. The Industrial Court of New South Wales has ordered that the defendants place and pay for this advertisement to warn others of the risks involved in residential house building sites. In these proceedings an owner builder used a project manager to arrange for renovation work to be carried out. The project manager used a contractor to do plastering work. That contractor used subcontractors to do that work. One of the subcontractors, in turn, used a number of persons who could not speak or understand English. Only that subcontractor could talk to them. One of these non-English speaking workers was working on some planks about three metres off the ground. A plank broke; he fell and was seriously injured. Neither the project manager nor the subcontractor had prepared a safe work method statement for this job. No one had organised proper scaffolding for this part of the work to be carried out. No one told the injured worker he should not have done the work that way. No one supervised him to make sure he did the work safely. The project manager, the head plastering contractor and the plastering subcontractor were all prosecuted and convicted of breaches of the Act. Anyone carrying out or involved in building work must make sure that all safety measures are taken and should get help from the WorkCover Authority of New South Wales if they are not sure of their responsibilities under the Occupational Health and Safety Act 2000. 46 Before making a final order under s 115 of the Act, I propose to stand the proceedings over. I ask each of the solicitors representing each of the defendants to liaise with each other concerning the placement of the advertisements and the costs. The intention of the Court is that each defendant will be required to contribute up to $1000 to a total expenditure of $3000. Obviously there will need to be some co-ordination of this activity. Perhaps the WorkCover Authority of New South Wales might provide some assistance in this regard. I note that that Authority has furnished to the Court and to solicitors acting for each of the parties a list of language newspapers in which the advertisement could be placed. I intend that the advertisements be published within six weeks of the date of this judgment. 47 I should emphasise that the Court expects that the solicitors concerned will attend to compliance with this order in a co-operative and cost effective manner. The Court is conscious that each of the defendants in the proceedings has financial constraints and that it would be inappropriate to overly burden any of the defendants with any further significant costs beyond those already incurred in connection with representation in the course of the proceedings. 48 I shall refrain from making any final order under s 115 and will grant liberty to apply. If the parties are able to reach some sensible agreement that will enable the advertisements to be placed in compliance with the court order, then my associate should be informed accordingly. Another purpose for the grant of leave is to allow any of the parties including the prosecutor to raise any significant objection to the advertisement as drafted by the Court. If the parties are able to reach agreement, I will issue a further order in Chambers without the necessity for further attendance. Otherwise, the Court expects that the liberty to apply will be exercised by the prosecutor within one month of this date. Orders

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Cases Cited (7)