Inspector Page v John Desborough t/as D & T Constructions

JUDGMENT: - 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR VICTOR PAGE v JOHN WAYNE DESBOROUGH t/as D & CONSTRUCTIONS

Prosecution under section 16(2) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 351 1 John Wayne Desborough, trading as D & T Constructions ("the defendant"), carried on business as a self-employed concreter. In 2001 the defendant was contracted by Stevens Construction Pty Limited ("Stevens") to carry out concrete placement, formwork and steel fixing on a building site at Lot 4 155 The Entrance Road, Erina in the State. The defendant contracted the formwork to Alroy Constructions Pty Ltd ("Alroy"). Alroy in turn contracted with Rossario Anthonio Marafioti to assist in the construction of the formwork.

2 On 19 April 2001 Mr Marafioti fell from a formwork platform onto the ground below. He suffered multiple injuries including brain damage, cerebral haemorrhaging, torn artery, broken nose, fractured skull and chipped ribs. Inspector Victor Page of the WorkCover Authority of New South Wales prosecuted the defendant under s 16(2) of the Occupational Health and Safety Act 1983. That section provides as follows: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work ... 2) Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work.

3 The prosecutor alleged that the defendant failed to ensure that persons not in its employment, in particular, Rossario Anthonio Marafioti, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work; that the defendant failed to: (a) provide or maintain systems of work that were safe and without risks to health to prevent persons falling from formwork; (b) provide such information, instruction, and supervision as may be necessary to ensure that persons working at height had proper fall protection in place; (c) ensure that persons could not fall greater than 1.8m in height pursuant to regulation 73(3) of the Construction Safety Regulations.

4 The defendant pleaded guilty to the charge. It may be noted that both Stevens and Alroy were also charged in relation to the incident (see Inspector Page v Stevens Construction Pty Limited and Alroy Constructions Pty Ltd [2003] NSWIRComm 226).

5 An agreed statement of facts was tendered. The statement contains a convenient exposition of the background to this matter:

9. Stevens was carrying out building work on the Site which was a new office development for a member of the Steven's company group. 10. Stevens contracted with JOHN DESBOROUGH t/as D & T CONSTRUCTIONS (the Defendant) for the latter to carry out concrete placement, formwork and steel fixing on the site. 11. The Defendant was a self employed person. 12. Stevens produced a Method Statement which identified in relation to "working at height" that "No persons shall work above 1.80 metres where they could fall. Suitable barriers or barricade systems will be provided and fully maintained at all times. Supervisor trained. All persons have been instructed." 13. The Defendant signed the Method Statement on 10 April 2001. 14. Stevens dealt with the Defendant in relation to formwork and concrete matters at the Site. Alroy reported to the defendant when the defendant was on site in relation to the formwork. When the defendant was not on site Alroy would report to Stevens in relation to the formwork. 15. The Defendant contracted the formwork to Alroy. 16. Mr Lehto was employed as supervisor for Alroy at the site. 17. Alroy subcontracted Rossario Anthonio Marafioti to assist in the construction of the formwork. 18. Mr Marafioti was a partner in the business Rosdon Formwork & Steel Fixing. This business commenced on 10 February 1998. Mr Marafioti was to work on the placement of ground floor formwork and suspended formwork. 19. Mr Marafioti did not hold a false formwork and formwork certificate but had been carrying out formwork duties for six years as an independent contractor 20. Mr Marafioti commenced work at the site at about 10am on 17 April 2001. 21. On 18 April 2001 Mr Marafioti assisted Alroy in the erection of formwork until about midday when he left the site. Mr Lehto had been told by Mr Marafioti that he was feeling dizzy. By the end of the day Alroy with two subcontractors had positioned the frames. 22. Mr Marafioti returned to the site on 19 April 2001. Mr Lehto requested Mr Marafioti to finish off the deck by positioning several sheets on the deck and to brace the up turned wall and place the coil ties on the up turned wall. 23. Mr Marafioti was working on a formwork platform (or form ply deck). It was a leading edge for the ultra floor to be landed on. The ultrafloor was to be landed the following day. 24. Mr Marafioti was working with Matthew Halls, who had also been contracted by Alroy. 25. Mr Marafioti fell from the formwork platform onto the area below. He suffered multiple injuries including brain damage, cerebral haemorrhages, torn artery, broken nose, fractured skull and chipped ribs. 26. Mr Marafioti has not returned to work. He has continuing health problems. 27. Mr Lehto was working approximately 6 metres away from Mr Marafioti and Mr Halls. 28. The Defendant was present at the site office. 29. No fencing, barriers or other safeguards were in place at the area where Mr Marafioti was working to prevent persons falling from the formwork deck. 30. Mr Marafioti did not undertake a site specific induction prior to him commencing work at the site. However Mr Marafioti did hold a site induction card for OHS General Induction Registration No. C08208. 31. The Construction Safety Regulations require that where persons are exposed to a risk of falling 1.8 metres or more, safeguards such as edge protection (for example handrails, guardrails, scaffolding) must be put in place prior to carrying out any work or progressively as the deck is being constructed and must remain in place until other fall protection safeguards are implemented. 32. The Code of Practice for Formwork dated 22 June 1998 stated that "Where the erection of formwork deck involves work at a height of more than one standard frame (of the standard 1.9m height) with end fittings, a system to prevent or arrest falls must be provided to safeguard persons at risk of falling." 33. On 19 April 2001, Inspector Peter Riley of the WorkCover Authority of New South Wales attended the premises and observed the following: (a) A formwork structure including 1 level of standard frame with end fittings extended, supported on 1 level of timber dunnage, with formwork bearers, joists and form-ply attached on the top. He measured this height to be 2.9 metres from the form-ply deck to the ground. (b) The frame was erected on uneven dirt and clay ground. (c) Outside the frame and in close proximity there was a timber pallet on which there was stacked a number of concrete blocks from one level closest to the frame to three levels furthest from the frame, each block measuring 200mm X 200mm X 400mm. (d) One of the blocks on the second level, in the centre of the right side of the pallet when looking at the frame, had a brown stain on the corner of the block in a position on the concrete block closest to the frame and towards the right. (e) On the ground at the right front corner of the frame there was a yellow tape measure, a red pencil, an orange work vest, a white shirt with a blue collar, a blue cap with yellow/brown brim with the words "CASCADE PREMIUM LIGHT" written in white, a pair of wire clips, a pair of wire frame sunglasses, and a roll of red and white nylon mesh. Most of these items as well as the timber dunnage, the adjacent block wall and some of the ground had red/brown stains on them. (f) On the left of the frame when looking at it there was a pile of sand and an aluminium ladder that was used to access the formwork platform. (g) At the time of the inspection, at the area identified as the place where the accident occurred, there was no fencing or other measures in place on the platform to prevent persons falling off the formwork. 34. The Defendant fully co-operated with WorkCover and its inspectors. 35. The Defendant has no prior convictions.

6 A factual inspection report into the incident by Inspector Peter Riley was tendered as well as a witness statement signed by Brian William Baker, contracts administrator employed by Stevens. A series of eleven colour photographs of the site and the area where the incident occurred was also tendered. The evidence was that the defendant had no prior convictions.

7 Two affidavits of the defendant were read. He was not required for cross-examination. In his first affidavit the defendant explained how he came to be contracted by Stevens to do the work on the Erina site and how, because of his lack of skill and experience in aboveground contracting work, he contracted out that work to Alroy. Mr Desborough deposed that: 19. Because of my lack of expertise, skill, knowledge and equipment regarding the suspended work, I was not able to effectively direct or supervise any of the work undertaken by Alroy at the site. I was not aware of the requirements for suspended work or the necessity for fall arrest measures for work at or above 1.8 metres in height, the placement of scaffolds, use of harnesses and the like. These were not things that I had any previous dealings or knowledge of. All my previous experience and knowledge was with work at ground level. 20. I did not have any contact with any other person connected with Alroy other than Mr Allan Lehto. I did not issue any directions to any employees, staff, contractors or other persons associated with Alroy. 21. I was not aware of Mr Marafioti's qualifications or skills. 22. I was not aware of Mr Marafioti's medical condition or health prior to the accident and in particular the alleged dizziness and/ or illness prior to his fall. 23. As the principal contractor, Stevens exercised control of all the contractors on the Erina job site including Alroy and myself. 24. Alroy had direct and independent control of the sub-contractor, Rosdon Formwork, Carpentry and Steel Fixing and Mr Rossario Marafioti. 25. I had no control over Rosdon Formwork, Carpentry and Steelfixing or Mr Rossario Marafioti. 26. Since the accident I have implemented a hazard reduction protocol in the form of a method statement which I now use on all work sites that I am involved in. Annexed hereto and marked with the letter " B " is a copy of that protocol. I also undertake a daily Occupational Health and Safety Audit on all work sites since the implementation of my new protocol. Attached to annexure B are copies of completed audits which are undertaken as a part of the hazard reduction protocol. I retain all the audits that I have undertaken since approximately July 2002 and I am able to produce all those audits if required.

8 It is clear from the method statement signed by the defendant on 10 April 2001 that he was aware of the need to provide for fall protection.

9 The defendant's second affidavit dealt with the assistance he provided to Mr Marafioti immediately following the accident and in the weeks following. Mr Desborough expressed his deep shock and sadness at what had occurred. The affidavit also addressed the defendant's income from his business, which is carried on in partnership with his wife. The evidence showed that the defendant's income was modest. There was no evidence, however, of the defendant's means beyond the partnership income in terms of other assets held by the defendant except that it was said that there was no income derived from a property the defendant owned. Submissions of the parties

10 Ms L McManus of counsel appeared for the prosecutor. Ms McManus addressed the principles relating to sentencing. She submitted that the objective features in this case relevant to penalty were as follows: (a) The maximum penalty as prescribed by Parliament for the offence at the time it was committed was $55,000; (b) The need for general deterrence; (c) The Defendant has an obligation to inform himself of safe working; (d) The nature of the offence in that it involved obvious risks and it was readily foreseeable; (e) There were simple steps to remedy the failures; (f) The nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety.

11 In submitting the risk to safety was readily foreseeable Ms McManus said the defendant was aware of the nature of the work being undertaken including the height at which any person constructing the formwork was to work and the need to provide and maintain adequate barriers against the risk of falling.

12 It was submitted for the prosecutor that appropriate measures were not taken to prevent the risk to safety even though such measures were available and feasible. These included ensuring that: (a) Edge protection, including handrails, guardrails or scaffolding, or a system to prevent or arrest falls were provided; (b) A safe working procedure was followed; (c) Contractors were provided with adequate information, instruction and supervision.

13 Ms McManus observed that since the accident the defendant has declined to undertake jobs involving suspended work, as he does not have the necessary expertise, skill, knowledge and equipment to undertake the work nor to supervise the work. Further, that in relation to work that the defendant undertakes he has implemented a hazard reduction protocol and undertakes a daily occupational health and safety audit on all work sites.

14 As to other relevant subjective factors it was submitted the plea of guilty was entered after the matter had been set down for hearing. However, it may still be regarded as having been entered at an early stage. The utilitarian value of the plea would be at the higher end of the scale of discount. It was accepted that the defendant had co-operated with WorkCover during its investigation and that the defendant had no prior convictions.

15 Mr G Carson, solicitor appeared for the defendant on a pro bono basis. Mr Carson addressed the circumstances leading up to the accident and the accident itself. It was submitted that viewed objectively the defendant was a small operator with little or no effective control over the conduct of the suspended work and the manner of performance of the suspended work at the Erina work. Objectively and in the whole of the circumstances, it was submitted, the defendant was considerably less culpable as compared to the conduct of Alroy and Stevens. 16 To some extent it was sought to portray the defendant as an innocent victim of the failures of Stevens and Alroy to meet their occupational health and safety obligations. While those two entities have been found to be culpable, it is inescapable that the defendant was also culpable and it only remains to determine at what level.

17 Mr Carson submitted that there were a number of relevant subjective factors to be taken into account by the Court. These included that the defendant: (a) Has shown contrition by entering a plea at the first available opportunity. (b) Cooperated fully with WorkCover in its investigation and provided all possible assistance to WorkCover.

(c) Took immediate steps following the accident to eliminate the particular risks that gave rise to the accident and undertake other risk minimisation and accident prevention measures including: (i) Since the accident the Defendant has implemented a hazard reduction protocol in the form of a method statement; (ii) The method statement is implemented on all work sites that the Defendant attends and has done since approximately July 2002; (iii) The Defendant undertakes a daily Occupational Health and Safety Audit on all work sites and has done so since approximately July 2002; (iv) The Defendant undertakes a safety audit at least every 48 hours separately for subcontractors and employees and retains copies of all those audits to ensure compliance with OH&S policies and procedures and with the Act; (v) The Defendant completes an activity sheet at least every 48 hours; (vi) The Defendant has enhanced communication between contractors and all employees on site and personally undertakes toolbox meetings with employees at least once every month. The toolbox meeting is a safety refresher and reinforces the Method statement / safety protocol; (vii) The Defendant avoids and refuses work and contracts outside the scope of training and expertise where he is unable to adequately supervise or direct the work, in particular refusal of suspended formwork, resulting in direct and significant loss of revenue. That is, the Defendant accepts only work that he knows and understands; (viii) The Defendant has adopted a proactive approach to OH&S and workplace safety and compliance with OH&S policies and procedures. (d) Has taken appropriate steps to improve his occupational health and safety policies and procedures and has a much greater awareness of the need to be vigilant in such matters. (e) Has demonstrated an ongoing commitment to occupational health and safety. (f) Has no previous convictions. (g) Has expressed contrition and remorse. The Defendant offered every assistance to Mr Marafioti and his family at the time of and following the accident whilst such assistance continued to be appropriate. (h) Is sympathetic to the plight of Mr Marafioti and his family and saddened by the injuries sustained and the effect of the accident on Mr Marafioti and his family.

18 It was further submitted for the defendant that his business is only a small operation and that any penalty would have to be borne by the Desborough family. The means of the defendant is extremely limited and he had limited capacity to pay any fine and had no capacity to pay the legal costs of the prosecutor.

19 The defendant was provided by Stevens with a work method statement that identified in relation to "working at height" that "No persons shall work above 1.80 metres where they could fall. Suitable barriers or barricade systems will be provided and fully maintained at all times. Supervisor trained. All persons have been instructed."

20 Based on that advice it must have been abundantly clear to the defendant that he had a responsibility for occupational health and safety in respect of the work he had contracted with Stevens to perform.

21 The defendant pleaded, however, that he had no experience with aboveground concreting work and, therefore, found it necessary to contract out that work to Alroy. Alroy, in turn, contracted out part of the work to Mr Marafioti.

22 In contracting out the above ground concreting works to Alroy it seems to me that the defendant believed that the responsibility for safety in association with that work also transferred to Alroy. The contract between the defendant and Alroy provided, inter alia:

· That Alroy Constructions Pty Ltd, employees and its agents must observe all relevant Occupational Health & Safety laws; · That Alroy Constructions Pty Ltd was required whenever carrying out the work, to ensure that no person (whether employed or not) be exposed to risk to their health and safety; · That Alroy Constructions Pty Ltd carry out the works using a safety management system.

23 However, the duty to ensure safety cannot be transferred or delegated either consciously or unconsciously to some other entity: Inspector Stewart v Siemans Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) No 2 [2003] NSWIRComm 45 at par [42]. In subcontracting part of its work to Alroy the defendant retained the responsibility to ensure that the safety of persons doing the work was not put at risk. This the defendant failed to do by failing to: provide or maintain a safe system of work; provide information, instruction and supervision to ensure that persons working at height had proper fall protection in place; and, by failing to ensure a person could not fall greater than 1.8 metres.

24 As the prosecutor submitted, the risk to safety constituted by the likelihood of a person falling from height in the absence of fall protection was readily foreseeable and easily avoided by adopting measures that are standard operating procedure in the construction industry.

25 The maximum penalty in this case is $55,000. The occurrence of death or serious injury may manifest the degree of seriousness of the risk to safety. I have had regard to the seriousness of Mr Marafioti's injuries.

26 In fixing penalty I intend to have regard to the need for general deterrence. As to specific deterrence, given the fact that the defendant has determined that he will not accept jobs involving aboveground concreting work, notwithstanding that such a decision means foregoing income that might otherwise have been earned and that he has taken commendable steps to improve his approach to occupational health and safety at work, I do not propose that specific deterrence should figure prominently in the fixing of penalty.

27 It may be seen this is a case of a self-employed person who was aware of the requirements of the principal contractor on the site to provide adequate protection against falls. Nonetheless, he did not give sufficient thought and attention to his responsibilities to ensure safety and merely assumed those responsibilities were transferred to other contractors. The other contractors, Alroy and Stevens, also failed in their responsibilities. This series of failures led, regrettably, to Mr Marafioti being seriously injured. Whilst I consider that, looked at objectively, the defendant's level of culpability was less than that of Alroy, which had a more direct responsibility for Mr Marafioti's safety than the defendant, the defendant is, nevertheless, culpable at a level that should attract a low to mid-range penalty.

28 There are a number of subjective factors to be taken into account and these were identified in both the submissions for the prosecutor and the defendant. I am satisfied, in the circumstances, that the defendant entered a plea at an early opportunity. The utilitarian value of the early plea should attract a discount of 20 per cent. The defendant has also shown genuine remorse for what occurred and was considerably shaken by the experience.

29 The evidence shows that the defendant is a person whose income from his business could be described as modest and, pursuant to s 6 of the Fines Act 1996 I propose to take this into account. Whilst the defendant contended he was unable to meet any costs order made in the prosecutor's favour I cannot accept such a contention on the state of the evidence regarding the defendant's means.

30 Having regard to the objective seriousness of the offence committed by the defendant, I consider an appropriate penalty to be $9,000 with a discount for the early plea of 20 per cent and a further 10 per cent for other subjective factors. This results in a fine of $6,300. Orders 31 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $6,300 with a moiety thereof to the prosecutor.

4. The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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