Inspector Page v Rawson Homes Pty Limited

PROSECUTOR Ms L McManus of counsel Solicitor: Ms M Simpson Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT Mr A Moses of counsel Solicitor: Ms H Levendal Doyles Construction Lawyers

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No IRC 1453 of 2002 INSPECTOR VICTOR PAGE v RAWSON HOMES PTY LIMITED

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 77

1 Rawson Homes Pty Limited, the defendant in these proceedings, carried on the business of home building. The defendant contracted with Murray Swane and Joshua Donnelly, two self employed carpenters, to install eaves and frame straightening ready for gyprock at a cottage in Empire Bay. On 5 July 2000, whilst working at the cottage, Donnelly sustained injuries to his left leg when a number of villaboard sheets that had been leaning against a wall fell on him.

2 The defendant was prosecuted under s 16(1) of the Occupational Health and Safety Act 1983 in relation to the incident involving Mr Donnelly in that it was alleged the defendant failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work. The particulars of the defendant's breach were that: (a) the defendant failed to ensure that villaboard sheets at the premises (17A Pomona Road, Empire Bay) were stored in a proper and safe manner; (b) the defendant failed to provide adequate information, instructions and supervision to subcontractors at the premises so as to minimise the risk of injury from the villaboard sheets; (c) the manner in which the villaboard sheets were stored leaning up against a timber stud wall at the premises was inherently unsafe; (d) as a result of the defendant's failure, Joshua Donnelly suffered injuries. The defendant pleaded guilty to the charge. The plea was made on the basis of an amended application for order filed in Court on 21 November 2002. Two other charges against the defendant in relation to the incident on 5 July 2000 were withdrawn.

3 An agreed statement of facts was tendered. It described the incident as follows: On 5 July 2000 Donnelly and Swane were working at the premises. Gyprock sheets were laying flat on the floor and the villaboard was stored against the timber stud wall of the living room. At approximately 8.15 am Donnelly was working in the living room area. Donnelly had a two metre level and was checking the timber stud wall between the living room and dining room, the wall upon which the villaboard was leaning. To check the frames Donnelly ran the level against the frames to find any studs with bows in them. Swane saw Donnelly standing in front of the villaboard sheets holding the level on the studs. Swane heard Donnelly call out but Swane did not see the accident. Donnelly alleged that the sheets of villaboard started to fall against him without him touching the sheets. The Prosecution does not allege that Donnelly did not touch the Villaboard but concedes that Donnelly may have come into contact with the Villaboard sheets. Donnelly fell backwards onto the ground when the Villaboard fell on him. The villaboard pinned one of his legs to the floor.

4 Seventeen sheets of villaboard, estimated to have weighed about 500 kg, fell on Mr Donnelly. He sustained a shattered left ankle and broken left lower leg.

5 Other evidence in the proceedings consisted of: (a) a factual inspection report by Inspector Page dated 10 July 2000; (b) three colour photographs showing, inter alia, villaboard sheeting stacked against a timber stud wall; (c) an injured person's statement containing what was alleged to be Mr Donnelly's signature; (d) a statement of prior convictions indicating the defendant had no prior convictions; (e) the curriculum vitae of Ross William Trethewy; (f) an affidavit of Peter Rawson.

6 The Court also heard oral evidence from the prosecutor, Inspector Page, Mr Donnelly, Mr Trethewy, Mr Rawson and Mr Edward Kasznik, sales manager with CSR Fibro Cement. Inspector Page indicated in cross examination that he predicated his understanding of the defendant's failure on the basis that Mr Donnelly did not come into contact with the villaboard. He agreed that if in fact Mr Donnelly had come into contact with the villaboard he would possibly have had a different view about the matter.

7 In the cross examination of Mr Donnelly it was put to him that he pulled the sheets of villaboard away from the wall in order to determine whether it was straight and that is how the villaboard sheets came to fall on him. Mr Donnelly denied this was the case and maintained he did not come into contact with the villaboard.

8 Mr Ross Trethewy is a research and consulting engineer at the University of New South Wales School of Safety Science. He is in the final stages of a PhD in construction safety. He was called by the prosecution to give evidence about the practice in the construction industry as to the stacking of villaboard sheeting. Mr Trethewy said in his evidence that based on his observations across a number of sites and a number of different buildings the practice was to store the sheeting "in a flat manner" but that he was not in a position to say what the practice was for "the total industry". Mr Trethewy said that between 1994 and 1999/2000 he had visited between 200 and 300 sites and 60 per cent of those sites were domestic sites.

9 Mr Trethewy also said in his evidence that he formed the view that the villaboard sheeting fell because Mr Donnelly may have inadvertently brushed against it, or caught part of his clothing on a sheet. Mr Trethewy agreed in cross examination that the sheeting could also have fallen because Mr Donnelly moved the sheeting for the purpose of checking the straightness of the timber studs. Mr Trethewy said that the sheeting would not have fallen without something having triggered the fall.

10 Mr Kasznik said in his evidence that CSR's recommendation was that villaboard sheeting be stored flat but that "often sites don't allow for that" and so it was "a common sight to see plasterboard orders, fibre cement sheets stacked on their edge." Mr Kasznik said that it was recommended that sheets be stored flat because it would be unsafe to store them on their edge where persons were working in the vicinity of such sheets. 11 Mr Rawson is a director of the defendant and spent some 14 years as a carpenter. He has 24 years' experience in the residential building industry. Mr Rawson expressed the opinion that in order to check whether a wall was straight it would be necessary to remove any villaboard sheeting resting against the wall. Consequently, it was his view that this was how the sheeting came to fall on Mr Donnelly. Mr Rawson also said that he was not aware of any industry practice as to the storing of villaboard sheets but that it was a common practice to rest sheets against a wall. Mr Rawson said he did not consider that resting villaboard sheets against a wall was a risk to health and safety although he conceded the practice of pulling the sheets away from the wall, in order to determine whether the wall was straight, was unsafe.

12 The proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act, namely, the establishment of safe standards and the protection of the workforce: WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 at par [19] per Hungerford J.

13 The practice of leaning villaboard sheeting against timber stud walls in the course of residential building construction without being secured in some way is obviously not a safe practice in circumstances where the sheeting can weigh up to half a tonne (as was the case here) and where there are workers working in the vicinity of the sheeting. If, in circumstances where there is no other option other than to store the sheeting against the wall instead of laying it flat, it would be essential that it is properly secured and that adequate information, instructions and supervision is provided to employees and subcontractors so as to ensure any risk of injury from falling sheeting is avoided.

14 In the present case, the defendant has admitted that it failed to ensure that the villaboard sheets were stored in a proper and safe manner and failed to provide adequate information, instructions and supervision to subcontractors so as to minimise the risk of injury from the villaboard sheets.

15 Mr A Moses, counsel for the defendant, submitted that the defendant should not bear the full brunt of responsibility for the accident given that Mr Donnelly contributed to it by pulling the sheeting away from the wall in order to check its straightness. It may well have been and, indeed, I consider that it was the case, that Mr Donnelly caused the sheets to fall. But as the prosecution rightly pointed out, if the practice was that, in determining whether a wall was straight, any sheeting leaning against the wall was pulled away from the wall, that was in itself an inherently unsafe practice of which Mr Rawson admitted he was aware.

16 In Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Walton J, Vice President, stated at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng , Matter No. IRC 3064 of 1997, 12 August 1999 at 39), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust.) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and The University of Sydney (at 16): The proper test of foreseeability in these circumstances it not whether a lawyer or engineer could conceivably have foreseen the risk which existed but whether or not the ordinary jury person or reasonable observer could have done so: see The University of Sydney (at p11). 17 Further, in the same judgment he stated: The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant, in my view, to assessing the seriousness of the offence in this case: see WorkCover Authority of New South Wales v ACI Operations Pty Limited (unreported, Schmidt J, CT93/1025, 25 February 1994). Whilst the response by the defendants after the accidents was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendants to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (at 21-22) (at 36). 18 The risk to safety in this case was reasonably foreseeable and avoidable by simple and straightforward measures. The sheeting was stacked against the timber stud wall at an angle and was not secured in any way. The sheeting had been placed in that position some nine days earlier. The sheets were large, being between 2400 mm to 3600 mm in length and approximately 1350 mm in width with a combined weight of approximately 500 kg. Mr Donnelly was required to check the straightness of the wall against which the sheets were leaning. It was reasonably foreseeable, given that the evidence of Mr Rawson was that in order to check the straightness of the wall it was necessary to pull the sheets away from the wall, that the sheeting constituted a risk to safety. However, even if the sheets were not pulled away from the wall, it was reasonably foreseeable that workers working near the sheeting might inadvertently come into contact with the unsecured sheeting and cause it to fall. As Mr Trethewy said in his evidence, something would have triggered the sheets to fall because they would not have fallen of their own accord.

19 As to the available remedial steps, it would have been open to the defendant to instruct the contractors who deliver the sheeting to the defendant's sites to store it flat on a level surface. The defendant has a site supervisor who could have ensured these instructions were carried out. The defendant now ensures that it is quoted on order forms to the plasterers that delivery companies must store villaboard flat on the floor when delivering to building sites and that the site supervisor inspects the site to ensure these instructions are complied with which, Mr Rawson said, was not always the case.

20 The occurrence of death or serious injury may manifest the degree of seriousness of the risk to safety: Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377; Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476; WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428-428; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185. In this case Mr Donnelly suffered serious injury to his left leg.

21 In relation to deterrence, the principles were discussed by a Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. As to specific deterrence the attitude of the defendant to questions of workplace safety and any steps to improve safety following an accident may be relevant to specific performance.

22 In this case the defendant has taken a number of steps to improve safety. These include instructions to delivery companies to store villaboard flat on the floor. However, it appears that "more often than not" these companies continue to stack it at an angle against a wall. Mr Rawson said the site supervisor inspects the site to ensure that the villaboard is placed flat on the ground. Of course, between the time the sheeting is delivered and the time the supervisor inspects the site there is the danger of workers working near sheeting leaning against a wall. In my opinion, the defendant should have instructed employees and contractors not to work near sheeting that is leaning against a wall and that they should either secure the sheeting or lay it flat on the floor.

23 The maximum penalty for this offence is $550,000. The maximum penalty for an offence reflects the 'public expression' by Parliament of the seriousness of the offence: R v H (1983) 3 A Crim R 53 at 65 and a large penalty indicates 'the gravity of the offence …': Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

24 Mr Moses referred to the judgment of the Full Bench in Fernandes Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Steven Jones) [2002] NSWIRComm 364 for the purpose of supporting his contention that in sentencing the defendant the Court should take into account the culpability of other entities who, he submitted, contributed to the accident but who were not charged. The relevant parts of Fernandes referred to by Mr Moses were as follows: 47 Before his Honour, the appellant argued it was the responsibility of the Department of Public Works and Services to erect the perimeter scaffolding. That was a conclusion with which Boland J agreed (para [35]). Equally, his Honour was unequivocal in his view that the appellant could not evade its responsibilities in this area by simply pointing to the Department of Public Works and Services and pleading economic duress as a critical factor in persuading them to press on with the work despite the absence of perimeter scaffolding. On this point his Honour said: Although it is clear from the evidence that the responsibility for erecting the scaffolding lay with the Department, it is also clear that the defendant was acutely aware of the need for safety scaffolding. Mr Bullock agreed in his evidence that construction work should not have been proceeding without the perimeter scaffolding in place.

48 This finding of his Honour only confirms earlier decisions of this Court as to the responsibility for common risk on building sites where numerous contractors are engaged in various capacities. On this point, we reiterate what was stated in WorkCover Authority of NSW (Inspector Byer) v Cleary Brothers (Bombo) Pty Limited (2001) 110 IR 182 at [65] and cited with approval in WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 at para [54]: However, where an operator continues to operate in circumstances that present an obvious and known risk to persons working at the site and which constitutes an offence under the Act, the culpability of the operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety of the site generally, or related responsibilities as to a particular operation at that workplace. And again in WorkCover v Schrader at para [61]: The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 437) and WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31]; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99.

25 The two entities Mr Moses was referring to were the contractor (ME Transport Pty Limited) who delivered the villaboard to the site and stacked it against the timber stud wall instead of laying it flat and CSR who provided the villaboard. Given Mr Kasznik's evidence that CSR recommended to its contractors who delivered the sheeting to sites that it should be stored flat, I have some difficulty with the proposition that CSR shared in the culpability for the accident. I do, however, accept that ME Transport may share some of the blame but as Ms McManus, counsel for the prosecution submitted, some nine days elapsed between when the villaboard was delivered to the premises controlled by the defendant and when Mr Donnelly was injured.

26 I turn to the relevant subjective factors to be taken into account in sentencing the defendant. Firstly, there was a plea of guilty. Ms McManus submitted that given the lateness of the plea any discount for its utilitarian value should be at the low end of the scale. Mr Moses, on the other hand submitted that the maximum discount ought apply and referred to the judgment of Schmidt J in Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298 where her Honour stated at par [37]: 37 I turn then to the question of any discount. I am satisfied that this was an early plea, entered as soon as the prosecutor had amended the application for the orders it sought in these proceedings and sought the dismissal of the two other prosecutions under the Act which had been brought against the defendant, arising out of the same circumstances. I am satisfied that the discount appropriate to be applied in these circumstances, having regard to utilitarian savings and contrition, is a total of 35%. In this latter regard, it is appropriate that I take into account the very considerable action taken by the defendant in response to the risk to safety, which the accident had exposed. In an environment where there had already been serious attention paid to safety matters generally, the detailed step by step instructions and check lists introduced by the defendant for complex maintenance work, together with a new instruction and approval process and enhanced safety audit procedures were commendable and properly now to be taken into account in fixing penalty.

27 Similarly, in these proceedings once the application for the orders sought were amended and the prosecution indicated its intention to withdraw two other charges, the defendant pleaded guilty. In the circumstances I consider the defendant is entitled to a discount of 25 per cent.

28 As to other subjective factors, the defendant has taken steps to avoid any recurrence of the accident and I note that it has a policies and procedures in place regulating occupational health and safety. The defendant has been in business for some 23 years and in that time no convictions have been recorded against it under the occupational health and safety legislation.

29 Mr Moses indicated that his instructions were to make application under s 10 of the Crimes (Sentencing Procedure) Act 1999 but frankly and quite properly said that the Court would fall into appellable error if it were to do so. I do not consider the offence is trivial or that there are any extenuating circumstances or other considerations that would indicate s10 should be applied. 30 In addition to the 25 per cent discount for the guilty plea I would allow a further 5 per cent for the other subjective factors. This means on a fine of $60,000, which is the penalty I consider to be appropriate, a discount of 30 per cent brings the penalty to $42,000.

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 $42,000 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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