Inspector Ochoa v Mulder

Inspector Ochoa v Mulder - [2010] NSWIRComm 92 - 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. 5 The annexures consisted of photographs, factual inspection reports, a work method statement and safety plan for plastering works and other documentation issued by Southern Cross Plastering, together with its quotation and an extract from the joint Australian/New Zealand Standard dealing with scaffolding (AS/NZS 1576.1:1995). 6 A number of affidavits were tendered in the defendant's case. Apart from affidavits of the defendant himself and his son, there were a number of affidavits that attested to the defendant's general good character, his awareness of matters concerning occupational health and safety and certain assistance that the defendant had rendered a number of people in need on a volunteer basis. 7 There was also evidence contained in the defendant's affidavit that dealt with his financial circumstances, and I shall return to this aspect later in these reasons for judgment. 8 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. The defendant'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. 9 [11] of the agreed statement of facts refers to certain documentation that was given to the defendant by Mr Williams. Included with Mr Williams' quotation was a document entitled "Term and conditions of acceptance". This specified that the quotation did not include, inter alia, "scaffolding for heights over 2700mm high." 10 Apart from the material in the agreed statement of facts, the only other evidence given in the proceedings concerning the circumstances surrounding this incident is that of the defendant in his affidavit. He said that he was retained by the owner, Mr Woodmore, as project manager to be paid on an hourly charge basis. He did not have any written contract. He said that after engaging Mr Williams, he had a meeting with him on site shortly prior to 6 November 2007. At that meeting, the defendant said that the work to be performed by Mr Williams would be the only work being carried out inside the house. He mentioned that he had installed timber ledges to create a platform in the dormer window on level 3 and offered to leave them in place if they were to be used for sheeting in the dormer window void area. He said that he told Mr Williams that he would need to provide his own scaffold planks and that Mr Williams said that he had "purpose made metal planks for that use. I will get them to site to use in that area. Leave the ledges where they are and we will use them for that purpose." 11 The defendant said that he saw Mr Williams unloading a number of metal planks at the site on 6 November 2007, which he assumed would be used to form the platform in the area of the dormer window void. He had a conversation with a person on site whom he knew as "Kevin" which, on the basis of the evidence given in the proceedings, is a reference to Mr Gao. The defendant denied having any conversation of any kind with Mr Gao about any scaffolding to be used in carrying out the gyprocking work at the site. 12 At the time that the incident occurred, the defendant said that he was working in another part of the house and on another level. He said that he understood Mr Williams "to be a competent tradesman experienced in undertaking gyprock work and assumed that he would make arrangements for the work to be carried out in a safe fashion." 13 Relying on his assessment of Mr Williams' competency and experience, he took no action to ensure that safe work methods were being used by Mr Williams and persons working for him. 14 The defendant said that he had no knowledge of the circumstances in which Mr Lin was carrying out the work until immediately after the accident and Mr Lin had been removed by ambulance. He said that at that stage he observed: that someone had placed on the timber ledges a single timber plank and sheet of plywood. I had not previously seen those pieces of material placed in that position prior to that day. The timber plank had split in the middle and one piece was hanging dangerously from one of the ledges. I pulled that piece of timber down to ensure that it was not a danger to anyone at site. I then instructed other workers on site not to enter the area until a WorkCover inspector had arrived. 15 In the course of his affidavit, the defendant acknowledged that in compliance with the requirements of the Act he was obliged to ensure that all persons who came to the site underwent a site induction, to arrange for a register to be created for recording site inductions, to ensure that all contractors provided safe work method statements and to arrange for the erection of a scaffold by a licensed scaffolder in the area of the dormer window where the incident occurred. 16 Section 8(2) of the Act is in the following terms: 8 Duties of employers …

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(2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 17 It will be observed that this creates an obligation on persons in the position of the defendant to ensure, in the sense of guarantee, that people who are not his employees are not exposed to risks to health or safety arising from the conduct of his undertaking whilst those persons are at the place of work which he has established. 18 Although the absolute nature of the duty imposed by s 8(2) must be qualified by the availability of the defence contained within s 28 of the Act, (see Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [18] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), nevertheless, the obligation is a comprehensive one. "The measures which must be taken are those which are reasonably practicable. The term is not defined in the OH&S Act, but it may often involve a common sense assessment …" (At [18]). 19 I have previously set out the particulars of the charge contained in the second amended application for order. As they apply to the defendant in his capacity as project manager and overall site foreman, he was required to assess what risks were involved in the carrying out of the plasterboard and gyprock work at the premises, to ensure that the work was carried out safely and in accordance with any relevant building codes and the like, to ensure that all persons entering the site were properly inducted and instructed about the potential problems involved in working from heights and that there was adequate supervision in place. 20 I would not regard it as being necessary, practical or appropriate for the defendant to have undertaken each and every one of these steps personally. He was, however, obliged to ensure that those ultimately responsible for the safety of workers on site had undertaken these steps. I shall approach the assessment of penalty and in particular the assessment of the objective seriousness of the offence in this way. 21 Work in the construction industry has many features which are inherently unsafe including, in the context of these proceedings, the need to work at a height exceeding three metres from the ground. Whilst a project manager and site foreman cannot be expected to personally supervise and control every aspect of the building work which is being conducted by the various trades who are retained from time to time, there needs to be in place some process which, viewed objectively, can be said to represent a genuine effort to ensure that safe working conditions apply to all of the work being carried out on the construction site. By his plea of guilty, the defendant acknowledged his failures to comply with his obligation and confirmed those failures in his affidavit evidence. 22 It should be observed at the outset that the breach by the defendant of his obligations under the Act is a serious matter. However, his culpability needs to be looked at in context. That context includes the circumstances which applied to this defendant, namely that he was project manager and overall foreman, but had subcontracted this particular work associated with a particular trade to a person whom he regarded as competent and responsible. Furthermore, he had limited personal involvement with the persons physically carrying out that work and certainly no involvement in their engagement. Nevertheless, the defendant did have, as I have pointed out, an overall responsibility to ensure that the construction site including the work being performed on it was safe as required by the Act. The objective seriousness of the offence needs to be considered having regard to these matters. 23 In determining penalty, I shall also take into account the deterrent effect that a penalty will provide in the construction industry generally and to this defendant. In this latter regard, I note that the defendant has expressed awareness of his obligations under the Act and a willingness to comply with them. 24 There are certain subjective matters which the Court is entitled to take into account in fixing an appropriate penalty. These include the fact that the defendant pleaded guilty at the earliest appropriate time, that he is a person of good character and with no prior convictions under the Act, that he has expressed remorse and contrition for what occurred and co-operated fully with the WorkCover Authority in and about its investigations of the incident. 25 I am satisfied on the evidence that the defendant is entitled to rely on all of these subjective matters, and the prosecutor did not contend otherwise. 26 The defendant also sought that the provisions of s 6 of the Fines Act should be applied to his circumstances. That section is in the following terms: 6 Consideration of accused's means to pay

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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. 37 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. 38 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. 39 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. 40 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." 41 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. 42 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. 43 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. 44 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. 45 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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Judgment (97 paragraphs)

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Cases Cited (9)