A PROSECUTION COMMENCED
1 On 4 December 2002, three workers were using scaffolding erected around a reservoir wall in South Grafton when the platform from which they were working tilted and rotated, causing two of them to fall over 6 metres and 7 metres respectively while the third worker managed to scramble onto a scaffolding structure in order to avoid falling.
2 Following an investigation by the WorkCover Authority, Inspector Green commenced proceedings alleging a breach of s 8(2) of the Occupational Health and Safety Act 2000 by Mamfe Pty Ltd ("Mamfe") and a deemed breach of s 8(2) of the Act by operation of s 26 of the Act by Mr Colin Crouch, the company's managing director. In each case a plea of guilty was entered. This judgment deals with the evidence and submissions on sentence.
BACKGROUND FACTS
3 Prior to this accident on 4 December 2002, the Department of Public Workers and Services (as it was then known) contracted with the Department of Land and Water Conservation to provide project and construction management services at the Waterview Seelands Eatonsville Water Supply Site, located at Hampton Road, South Grafton. The Department was engaged in project and construction management at this site and employed a number of persons including a project officer and site supervisor and others to work at the site. The Department engaged the defendant, Mamfe, to construct a reservoir and booster pumping station at the site and to complete all necessary works (including the provision and maintenance of scaffolding) to permit the reservoir and booster pumping station to be completed. The Department provided project and site supervision of the site and was entitled to issue directions in relation to material and works at the site and was a controller of the site, including the reservoir and the scaffolding at the site.
4 Mamfe was an incorporated company that carried on a construction business trading as "Kennedy Bros" and was the principal contractor at the site. Mamfe employed Mr Arthur as a crane driver/labourer, Mr Ritchie as a labourer and also Mr Colin Crouch who was the managing director of the company and site foreman at this location. Mamfe had also engaged Mr Reynolds as a sub-contractor to perform services as a steel fixer and labourer at the site. Mamfe had engaged Coastal Fabrications Pty Ltd ("Coastal Fabrications") to supply and erect the reservoir roof and undertake associated metalwork at the site. Coast Fabrications, in performing this work, employed Mr Will as foreman and Mr Jones as a metal fabricator and welder at the site.
5 In or about June 2002, Mr Crouch designed what was described as "an unusual modular scaffolding system" including a curved platform to fit around the concrete reservoir at the site. Mr Crouch designed the scaffolding in his capacity as an employee of Mamfe and as part of Mamfe's undertaking. In late July 2002, Allens Welding manufactured the modular scaffolding. The scaffolding was used on a regular basis at the site being erected and re-erected to suit various tasks associated with the construction project. The scaffolding was described as consisting of two scaffold towers chained to the reservoir wall, supporting the curved scaffold platform. There was a handrail down the length of the scaffold platform but there were no hand rails at the ends of the platform.
EVENTS LEADING UP TO THE ACCIDENT
6 On or about 3 September 2002, Mr Crouch, Mr Ritchie and Mr Reynolds erected two scaffolding towers. Each tower consisted of four individual scaffolding frames and were pre-assembled and manoeuvred into the designated location using a crane operated by Mr Arthur. The scaffold platform was raised by the crane and manoeuvred into position onto the top of the scaffold towers but relied on weight and friction to hold it in place. The scaffold platform was not secured to the scaffold towers and no scaffold tower was installed to support the mid-span of the scaffold platform. The left hand end of the scaffold platform was supported by only one side of the scaffold tower.
7 On 4 December 2002, the scaffold platform was set approximately 7.2 metres high, the reservoir wall being approximately 10 metres high. Mr Crouch, Mr Reynolds and Mr Will were on the scaffold platform but Mr Crouch returned to the ground. There was a permanent steel platform to be installed on the reservoir and it was raised by crane and placed in position at the top of the reservoir wall. Mr Jones and Mr Will then commenced drilling holes to locate the bolts to secure the permanent steel platform to the reservoir wall. Mr Crouch passed a ladder up for use between the scaffold platform and the reservoir walls.
8 Mr Jones and Mr Will then positioned the ladder on the scaffold platform with the top leaning against the reservoir wall, perpendicular to the left hand steel davit arm of the permanent steel platform. The ladder was located approximately 3 metres in from the exposed right hand edge of the scaffold platform. The lower end of the ladder leaned against the toe board of the scaffold platform. Mr Jones and Mr Will began taking turns drilling holes into the concrete reservoir wall for the placement of bolts and did so using the ladder.
9 Mr Jones was standing on the ladder using a vibrating percussion drill to make holes in the reservoir wall when he noticed movement in the scaffolding platform. He scrambled up the ladder and grabbed the left davit arm of the permanent steel platform and at the same time the scaffold platform slid towards the outer edge of the scaffold towers and titled outwards from the reservoir. The force caused the scaffold platform to rotate, detaching it from the supporting scaffold towers. Mr Reynolds' immediate reaction was to grab the handrail of the scaffold platform as it fell. In doing so, the handrail sprung back towards him as it became detached from the platform. This caused Mr Reynolds to be knocked unconscious as he fell approximately 7.2 metres to the ground. Mr Reynolds landed at the base of the embankment surrounding the concrete reservoir.
10 Mr Will fell approximately 6.2 metres to the ground onto to the top of the embankment surrounding the concrete reservoir. He immediately looked up to see the 540 kgs scaffold platform falling towards his legs and his reaction was to grab his knees and roll away from the platform. The 540 kegs scaffold platform struck the ground, arching upwards and then fell back towards the ground crushing Mr Will between the platform and the embankment surrounding the reservoir. Mr Will tried to lift the scaffold platform off himself as both shoulder blades were touching his chin. He yelled for help with the weight of the platform preventing him from breathing. Mr Crouch, who had arrived at the scene of the accident, arranged for the crane to lift the platform off Mr Will.
11 Mr Reynolds received multiple injuries including fractures to his transverse process bone, L1 - L4 to the right side of his back, a hip injury, lacerations to his left elbow, right shoulder, back of the head, swelling of muscle tissue to the left thigh and swelling to both knees. Mr Will received multiple injuries including a fractured pelvis, multiple fractures to both shoulder blades, a compression fracture to the fourth thoracic vertebra, a bilateral lung contusion and rhabdomyolysis. Mr Will suffered internal bleeding for four days. Mr Jones avoided a fall by grabbing the left davit arm of the permanent steel platform and pulling himself onto it.
ENGINEERING REPORT
12 In February 2004, the WorkCover Authority received an engineering report that stated there were no line drawings or calculations and no rate of capacity provided for the scaffold platform used by the defendants at the site. This unusual module of scaffolding work platform was not designed, tested and certified as being compliant with loading requirements of Australian Standard 1576.3: 1995 Scaffolding Part 3: Prefabricated and tube-and- coupler scaffolding. It did not have a duty classification or design registration with the WorkCover Authority. The platform simply sat on the towers and there was no positive connection to prevent sliding or uplifting of the platform. The dimensions and support points for the platform resulted in the potential for the live loads (persons and materials) on the platform to be positioned such that the centre of gravity could move beyond the tipping line, resulting in uplift at the inner connection point. Without secured inner connection points, the platform would rotate about the outer support points and overturn if such a loading condition occurred. The engineering report concluded that without securing connection to the supporting towers, the work platform overturned about the tipping line owing to the distribution of live loads at such positions that eventually caused its centre of gravity to shift beyond the tipping line.
13 Mamfe also secured two engineers' reports. A December 2002 report, obtained after the accident, identified the need for a third scaffold tower to support the midspan of the scaffold platform. The report indicated that the ends of the scaffold platform were to be supported by both sides of the scaffold towers at either end. Another engineer's report obtained in December 2002 and after the accident stated that a hold down clamp should be used to secure the scaffold platform to the supporting scaffolding short frames.
SCAFFOLDING
14 It was agreed that the scaffolding system was unusual in that it was curved to fit around a structure. The scaffolding platform had been weighed at 540 kilos. It was agreed that there was inadequate means of securing the scaffolding platform to the scaffold towers and that the width of the scaffold platform would allow a potential side movement of the steel platform between the vertical lugs of the scaffolding shore frames. It was also agreed that the scaffold platform and the unusual nature of the scaffolding did not comply with numerous clauses of the Occupational Health and Safety Regulation 2001 nor with the Australian Standards 1576.3 or Australian Standards 4576: 1995 "Guidelines for Scaffolding" in relation to industry best practice, stability, working platforms and edge protection. Further, prior to the accident no system had been implemented for testing the scaffolding to ensure compliance with the loading requirements under Part 3, Section 4 of Australian Standard 1576.3.
15 In relation to fall protection, it was agreed that there was no fall protection provided to persons working on the ladder standing on the scaffold platform. There were also insufficient fall protection or prevention measures provided to persons working on the scaffold platform due to the exposed ends of the platform which lacked fencing.
THE EVIDENCE
16 The above descriptions under the headings "Background", "Events leading up to the Accident", "Engineering Report" and "Scaffolding" represent the bulk of the Agreed Statement of Facts tendered by the parties. The prosecution also tendered a number of photographs (that assisted the Court in understanding the work undertaken at the site and the circumstances of the accident), a factual inspection report prepared by an Inspector, the contract documentation between the Department of Public Works and Services and Mamfe, a site safety instruction dated 5 November 2002, an audit report, a hazard identification check list and project list assessments, a diagram of the work platform, a work method statement prepared by Coastal Fabrications and Australian and New Zealand Standards. During the course of the hearing, the prosecution also tendered a witness statement of Mr Will arising from an interview with Inspector Green.
17 For the defendants, an affidavit of Mr Crouch was read. In that affidavit he outlined his involvement with Kennedy Brothers dating from 1969 when working as a crane operator up until he purchased the business in 1997 with his wife. Kennedy Brothers was a family business that had been long established in the Northern Rivers and involved mainly in the construction of timber bridges before progressing to concrete bridges, levy walls, sewerage pump stations and around 15 reservoirs up to 16 metres in height. The nature of that work continued under Mr Crouch's ownership. He gave examples of large projects in which the company had been recently involved and noted that prior to 2002, depending on the nature of the work at the time, the company employed up to 12 persons including himself and his wife. Mr Crouch said that the business had been scaled down after the accident because of uncertainty until the result of these proceedings was known.
18 Mr Crane described the operation as a small business that was primarily a vehicle for Mr Crouch and his wife to earn a living. Profits available in recent years had been absorbed because of the high cost of insurance and the fitting of safety equipment to the company's older cranes in order to comply with WorkCover regulations. The company's financial and taxation returns were annexed to the affidavit for the years 2002 - 2005 inclusive.
19 The company had worked with the Department of Public Works and Services for a number of years before Mr and Mrs Crouch purchased the business and since then the company continued to win tenders for the Department's projects. Mr Crouch regarded himself as having a good relationship with the Department and experienced no problems with the Department up until the time of this accident. In relation to the Waterview Reservoir Contract, there were to be monthly site meetings with the Department but only two had taken place over the four month life of the project. Mr Crouch said that prior to each concrete pour and after erection of steelwork, the Department's project officer and site supervisor was notified and should have been on site for an inspection but on a number of occasions was too busy to attend. The project officer and site supervisor to the Department was to chair the monthly site meetings and was to conduct inspections for safety compliance. Departmental officers were able to issue safety instructions but no risk associated with the scaffolding was identified and brought to the attention of Mr Crouch. Mr Crouch identified only one risk associated with the scaffolding system and that was a risk of the towers moving out: that risk was addressed by the chaining of the towers to the reservoir walls.
20 As part of the defendants' obligation to comply with occupational health and safety requirements, it supplied a site safety plan and a number of risk assessments to the Department but received very little feedback in relation to these documents. Mr Crouch said that it was his idea to build a curved scaffolding system. The use of a curved scaffolding system was said to arise out of safety concerns because using traditional rectilinear scaffolding on reservoir jobs resulted in gaps between the scaffolding and the curved reservoir wall and thus created a real and substantial risk. Mr Crouch thought this would be a better system and that was the only reason for devising the curved system - it was flexible and could be used inside or outside the reservoir walls with minor modification. Prior to first using the scaffolding, he trialled it by erecting the platform 1800ml off the ground and tested it for any tipping movement but found none. He formed the view that the scaffolding platform was safe and then it was used approximately 150 times before the accident without any lateral movement, either noticed by himself or being brought to his attention by others. Mr Crouch said he did not realise that the structure required a design certification and WorkCover registration. He said that he could not find words to express his regret for this action and again noted that prior to any work activity, safety was his first thought. Since the accident, the company had a safety management plan prepared by a firm called Job Safety Australia.
21 Mr Crouch thought that the use of the ladder on the scaffolding had a bearing on the occurrence of the accident and that it may not have been necessary except Mr Will apparently preferred to use the ladder rather than having the scaffolding platform lifted when needed. He thought that Mr Will, who was Coastal Fabrications' safety officer, should bear some responsibility for the use of the ladder.
22 Since the accident, Mr Crouch had remained in contact with Mr Reynolds speaking to him every six weeks or so and usually after Mr Reynolds had seen his medical specialist. He visited Mr Reynolds at Grafton Hospital on approximately four occasions and when he was released, visited him at home every week or two while Mr Crouch was working in the Grafton area. Mr Crouch said he was happy to have Mr Reynolds back at work on light duties but this was not successful because the drive from Grafton to Lismore was too much for Mr Reynolds. Mr Crouch also visited Mr Will at Grafton Hospital three or four times and later when he was transferred to Mullumbimby Hospital.
23 The company was still working in the construction business but was now only taking on work after careful consideration of the risks involved. In oral evidence, Mr Crouch said that the company was not taking on reservoir work or work at those heights and that restricted the amount of work available to the company. He regarded the operation of the business as a hard occupation and one that, because of his age, he could only see himself performing for another five or six years. The company was not a large business and Mr Crouch expressed the view that if a large fine was to be imposed it would probably mean the end of the business. He asked to be given a chance to redeem himself and to be able to continue to work and provide for his family.
24 Mr Crouch was extensively cross-examined, especially in relation to the financial position of the company as well as his own personal financial circumstances. In the last two financial years, the company had gross receipts of approximately $430,000 and $450,000 and earlier there had been an abnormal profit of over $900,000. Notwithstanding these figures, Mr Crouch stated that over the last few years he had only taken approximately $30,000 a year in wages and that his wife had taken no more than $13,000. In previous years there might have been eight or nine persons employed from time to time by the company but more recently the number of employees was likely to be three or four persons at any time, including himself and his wife. In relation to assets, Mr Crouch said he owned his home that was valued at between $250,000 to $300,000. The company had two cranes worth between $50,000 and $60,000 but unlikely to obtain that price and formwork valued at $10,000 but again unlikely to be sold for that price. In relation to cash assets, Mr Crouch said that he had only $3000 to $4000 in cash. Mr Crouch also stated that he would not take on large projects again even though that was where higher incomes could be made nor would he seek work at height again, limiting himself to work up to 6 metres. He regarded the company as running at a small profit only and that should a substantial fine be imposed he would have to seek a loan and time to pay.
DELIBERATION
25 In relation to the objective seriousness of this offence, the prosecutor submitted that in the context of the charges particularised it was important to note that Mamfe was the principal contractor and Mr Crouch was a licensed scaffolder. On behalf of Mamfe, Mr Crouch had designed the scaffolding but there was no design drawings or calculations and no rated capacity provided for the scaffolding platform. The work platform was not designed, tested and certified as being complaint with the loading requirements of the relevant Australian Standard and further, the scaffolding and platform did not have a duty classification or design registration with WorkCover contrary to Clause 107 and Clause 136(1) of the Occupational Health and Safety Regulation 2001. There was a lack of positive connection to prevent sliding or uplift of the platform and thus it failed to comply with other Australian standards. The scaffolding design was not verified by an independent competent person such as a practising structural engineer contrary to Clause 107 and Clause 136(1) of the Occupational Health and Safety Regulation 2001. There was a failure to undertake an adequate risk assessment and the use of the ladder on the scaffold platform constituted an unsafe system of work. The position was summarised as the existence of a real risk of the work platform overturning as found in the engineers' reports. On the day of the accident there were separate risks of falling arising from the unsafe work method used in relation to the ladder work and the lack of edge protection on the platform. Considering the height at which this work was being performed there was a risk of serious injury.
26 There is substantial force in that submission made by the prosecutor. The particulars of the offence note a complete failure to comply with provisions of safety regulations and Australian Standards. In addition, Mr Crouch was not qualified and had not performed work as a designer of scaffolding and scaffolding platforms in his otherwise extensive work history. His own testing of the platform on over 150 occasions satisfied him that it was safe although there was no detail as to how many people used the platform at the one time and whether or not there were other devices such as ladders used while a number of people were working on the platform. Mr Crouch relied on the weight of the platform, 540 kgs, to be sufficient for it to remain stable but the engineers' report showed that it was not stable and that the distribution of weight by people on it might lead to it tipping and falling, as it did on 4 December 2002.
27 Mr Crouch seemed to accept that the curved nature of the platform was an innovation but one that overlooked his own lack of qualification for designing and making such a platform. It was a simple and obvious step to have a person such as a qualified engineer check the safety of this piece of equipment yet that simple, straightforward step was not taken.
28 In submissions on behalf of the defendants, it was stated that the contravention was serious "in its consequences" but was not flagrant and in fact grew out of safety concerns held by a conscientious employer. Mr Crouch was not attempting to cut corners or adopt doubtful practices to avoid expenditure on suitable scaffolding but was addressing the problem of conventional scaffolding, leaving a gap between the scaffolding and the face of a curved reservoir. Indeed, he had spent his own money on having this sizeable platform constructed and had attempted to test it himself for its safety. He honestly believed that its weight was such that it needed no other form of fixing to ensure that it operated safety and was safe to work from. In those circumstances, it was also suggested that it could not be found that the risk was clearly foreseeable.
29 I accept without reservation that Mr Crouch was motivated by concerns for safety in the design and manufacture of this innovative piece of scaffolding platform. However, after many years of working in this industry it is difficult to understand why he did not take the obvious step of seeking professional and qualified advice as to the safety of the platform. In my view, what was foreseeable was that a platform which was unsecured and relied on its own weight to prevent lack of movement, when placed in towers where it was not fully supported at one end but only partially supported, could have the propensity to move. To this extent, the prosecutor has established a foreseeable risk and one that was simply not addressed and/or rectified.
30 There was a good deal of evidence and debate about a conversation between Mr Will and Mr Crouch where Mr Will proffered the view that the towers and the platform should be tied or chained to the reservoir, a suggestion that was said to be declined by Mr Crouch because the platform had been tried and proved to be stable. Mr Will gave sworn evidence that this conversation took place and Mr Crouch gave sworn evidence that the conversation did not take place. The relevance of Mr Will's evidence was said to be that it went to the issue of foreseeability or even established foreseeability. I am unable to accept that Mr Will's evidence, if accepted in full, would establish by itself the foreseeability of a risk that the platform was unstable. Mr Will had no more qualifications than Mr Crouch in this area and it seems to me that this evidence could not be determinative or even of great influence in deciding the issue of foreseeability. As it evolved, both men gave their evidence from memory, both of them appeared to be confident of the accuracy of their version of events and ultimately I am unable to decide which version is correct. It therefore follows that the prosecution has not made out this aspect of its case to the requisite standard. This finding, of course, is no reflection on Mr Will but as I have indicated, it seems that even if Mr Will's version was accepted the issue of foreseeability would not have been advanced. Apart from this evidence, I have, on a somewhat narrower basis, found foreseeability in relation to the stability of an unsecured platform in use at heights. In this particular accident, two workers fells from over 6 metres and 7 metres and a third worker was lucky not to have fallen. These aspects demonstrate the seriousness of the offence.
31 In setting an appropriate penalty, the principle of general deterrence has a real role to play. The facts of this case demonstrate that in a notoriously dangerous industry even innovation resulting from a concern for safety needs to be thoroughly checked and appropriately authorised before being implemented in the workplace. In an age of growing specialisation which has touched the building and construction industry as much as any other part of work and everyday life, there was something of the element of folly about introducing a system of work that had not been independently verified, not even by the WorkCover Authority itself.
32 In relation to specific deterrence, it is appropriate to take into account the steps taken immediately following this accident by the defendants to address safe working methods and their operation. I accept the defendants' submission that even before the accident while the documentation was not up to standard, nevertheless induction had been provided to employees by the defendants and that even days before the accident a consultant had been commissioned to prepare a management plan. Immediately after the accident, steps were taken to rectify the problem by the defendants obtaining reports from two engineers and by implementing their recommendations. Having regard to the lower scale of work now performed by the defendants, in my view there is a very minor role for specific deterrence in setting an appropriate penalty in this case.
33 In relation to subjective factors, I accept that a plea of guilty was offered by each defendant at an early stage of the proceedings: indeed, on the day of the hearing amended applications for order were filed in Court and the defendants maintained their plea. I can see no reason why the defendants should not obtain the benefit of the usual maximum discount of 25 per cent for the utilitarian value of their plea.
34 I also take into account the significant history of each defendant in this industry and being able to maintain a clean record - this is each defendant's first conviction under occupational health and safety legislation. I also give consideration to the actual system of safety in operation even though it lacked documentation and the steps already put in place to prepare a management plan for the work. I accept Mr Crouch's evidence as to his concern for the injured employees maintained over a significant period of time, together with his early plea as evidence of contrition. I also accept that there was co-operation with the WorkCover investigation including the exchange of reports from engineers engaged by the defendants. Mr Crouch's evidence and demeanour in the witness box impressed as the evidence of a person who was badly shaken by this accident to the extent that the nature of the business had been scaled down and work at heights was no longer being sought. It is unlikely that the defendants will offend in this particular manner again. It should also be added in this context that the defendant provided a number of references supporting Mr Crouch's good citizenship and usual care in his work methods. All of these matters are to be taken into account in setting an appropriate penalty.
35 The evidence of the financial position of the company and Mr Crouch supports a finding that they are both of modest financial resources. Mr Crouch asserts and was not seriously cross-examined on the proposition, that a substantial fine may put at risk the continued operation of the company and its ability to employ even limited numbers in the future. That evidence also shows that Mr and Mrs Crouch have taken a very modest sum in recent years by way of wages and that their other assets are not large. While these matters are deserving of and are required by the provisions of the Fines Act to be taken into account, the Court at the same time needs to take care that such considerations do not substantially operate to reduce the objective seriousness of the offence. I accept the defendants' submission that Mamfe is the corporate means by which Mr and Mrs Crouch earn their modest living and I would propose to proceed on the basis of setting a penalty that reflects the overall criminality of the offence and to divide it between the two defendants in recognition of the fact that it will be Mr Crouch who must bear the responsibility of paying the fine. On his evidence that will require a loan and possibly time to pay.
36 There was one further matter requiring consideration. On behalf of Mr Crouch it was submitted that while the corporate defendant might appropriately be the subject of a penalty, there were circumstances regarding the background and situation of the personal defendant that would warrant the application of the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. Particular reference was made to the decision of Boland J in Inspector Chaston v G & P Coupland Cranes Pty Ltd and anor [2005] NSWIRComm 347. That decision notes Full Bench authority for the proposition that s 10 orders were available in limited circumstances requiring a full explanation as to how the circumstances justified the exercise of the discretion. The decision also referred to authority for the proposition that there was little value in considering the particular approach taken in other decisions or judgments in order to exercise the discretion under s 10 of the Sentencing Procedure Act 1999. Indeed, the personal circumstances of Mr Coupland in that case were so significantly different to Mr Crouch's circumstances as to provide no assistance whatsoever in the present case. While there are considerable issues raised in mitigation generally by the defendants, I am unable to detect matters of such significance as to warrant the application of s 10 in relation to Mr Crouch. That application is therefore rejected.
ORDERS
37 Having regard to the various matters raised by the parties, the Court determines as follows:
(i) In relation to Matter No IRC 7053 of 2004 , the Court makes the following orders:
(a) the defendant, Mamfe Pty Ltd, is found guilty of the breach of s 8(2) of the Occupational Health and Safety Act 2000, to which it has pleaded guilty;
(b) the defendant is fined the sum of $65,500 with half the fine to be paid to the prosecutor as a moiety;
(c) the defendant is to pay the costs of the prosecutor as agreed, or in the absence of agreement, as ordered by the Court.
(ii) In relation to Matter No IRC 7055 of 2004 , the Court makes the following order:
(a) the defendant, Colin Crouch, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26 of that Act, to which he has pleaded guilty;
(b) the defendant is fined the sum of $6,000 with half the fine to be paid to the prosecutor as a moiety;
(c) the defendant is to pay the costs of the prosecutor as agreed, or in the absence of agreement, as ordered by the Court.