Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd

Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd - [2006] NSWIRComm 103 - NSWIRComm 2006 case summary — Zoe

[22]

8 The conclusions I draw from this evidence is that the first defendant did not take any measures to ensure the safety of other workers at the site who were not its employees. Instead, the Court is left with the firm impression that the first defendant took the view that it had no obligations to ensure the safety of any persons other than its own employees at the site. This is not and has never been a correct or acceptable view of the law. 9 The second defendant on the other hand had in place a system to ensure the safety of all contractors on the site. That system included a practice of inducting all workers at the site and included the requirement imposed on all contractors upon entering the site to produce a work statement. The evidence disclosed that the first defendant provided such a document to the second defendant. Deno's Cranes had generated their own work method statement and sent it to the site with the crane crew. It was not however produced to Mr Quinlan or any other employee of the second defendant although Mr Quinlan at least had intended to ask for it before the crew commenced work at the site. Mr Quinlan had also intended to induct the members of the crane crew before they commenced work. The standard induction involved discussion on how to perform a particular task. The second defendant utilised a standard form which was to be completed by each worker during the induction. This form required details of a worker's qualifications and employer to be filled in. Questions were also asked of each worker as to his or her company's particular work method statement. After the induction a worker was given the two back pages of the standard form and the second defendant retained the first page. As I found in my earlier judgment Mr Murdock was neither inducted nor asked about a safe work method statement. Had he been it seems likely that Mr Quinlan would have detected Mr Murdock's inability to read and appropriate safety measures would have been devised to ensure that he worked safely on the elevated platform. 10 There is no doubt that Mr Murdock and other members of the crane crew would have benefited from this system if they had been inducted upon their arrival at the site. This should have happened and there was nothing in the evidence to suggest that it could not have happened. Nevertheless, the existence of such a system which was operative at the time of the offence provides some evidence which mitigates the objective seriousness of the offence. I will take this into account in the second defendant's favour. Deterrence

[28]

14 Both defendants urged the Court to consider their respective culpabilities by reference to the contributions of Mr Murdock's employer, Deno's Cranes. It will be recalled from my earlier judgment that Deno's Cranes was engaged by the second defendant to assist with the relocation of the scaffolding which spanned the length of the building facade along Court Road. Joe Maviglia, a spokesperson for Deno's Cranes had allocated a franna crane and the crane crew to the task. A Deno's Cranes time sheet for the booking nominated the starting time on 25 June at 7am and a finish time at 10am. This document was taken to the site by the crane crew on 25 June. In addition the safe work method statement had been generated by Deno's Cranes for the use of the crane crew on 25 June. This statement listed a procedure comprising fifteen steps and identified possible hazards, controls and areas of responsibility. The statement on its face governed a procedure to be followed upon arrival at the site and preparatory steps which involved checking the crane and lifting equipment. The second step in the procedure required the crane crew to locate the site office then take part in an induction. This was stated to be the responsibility of the "site manager". In his evidence Mr Maviglia confirmed that "site manager" was a reference to a supervisor at the Neeta Shopping Centre and not to an employee of Deno's Cranes. This evidence represents the sum of Deno's Cranes' involvement in the safety of the crane crew workers at the site. I was advised by the prosecutor during oral submissions on sentence that Deno's Cranes was an obvious third party that might have been considered for prosecution but wasn't because it was in liquidation. The authorities dealing with the respective culpabilities of other responsible parties who have not been prosecuted were collected and summarised by Walton J, Vice-President, in the Department of Mineral Resources (Chief Inspector Mackenzie) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 who said at 191-195:

[38]

The effect of these authorities as summarised by Walton J is that the culpability of a defendant may be assessed by reference to the roles and responsibilities of other parties who have not been prosecuted. This in turn may affect the penalty imposed on it. This does not mean however engaging in an enquiry which would require specific findings as to culpability to be made against the other parties. Those other parties are not before the Court and have not had an opportunity to place material before the Court. 15 My attention was specifically directed by the second defendant to the decision of Wong v Melinda Group Pty Ltd (1998) 82 IR 118. However in my view the facts in that case are readily distinguishable from the present circumstances. In Wong v Melinda Group the sentencing judge, Hungerford J, found that the real culpability lay with entities other than the defendant. His Honour found that the defendant had been the victim of circumstances and limited in what action he could have taken in relation to the work which was proceeding at the time and which resulted in a window cleaner falling about sixteen metres from the third floor window ledge of a building and fatally injuring himself. By contrast in the present circumstances both defendants are closely associated with the causative facts leading up to the actual incident. Deno's Cranes on the other hand although it sent the crane crew to the site armed with a work method statement made no attempt to ensure that the members of the crew were properly inducted into all relevant safety procedures in relation to the work to be performed at the site and made no enquiries as to the availability for example of any fall protection device. Given the work being undertaken by Mr Murdock such protection was obviously necessary to ensure his safety. Deno's Cranes in this context is not unlike a labour hire company that sends its worker to a foreign work site but fails to follow up or make any enquiries or take any steps to ensure that the workers sent to the site can work safely and without fear of injury. The body of authority in relation to the obligations of labour hire companies under the occupational health and safety legislation emphasises that those obligations are no less than the obligations of the principal contractor at the site (the second defendant) or of the subcontractors working at the site (the first defendant). This point is perhaps best illustrated in Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 where the Full Bench said (at 445):

[40]

A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe. 16 It follows from the foregoing summary of the evidence and the relevant authorities on the point that Deno's Cranes must share some of the overall culpability for the conduct to give rise to the offences. Having said this I do not agree with the submission made by the first defendant during the sentence proceedings that it's role was "very minor". The prosecutor submitted that the respective culpabilities of the two defendants were objectively indistinguishable or at least difficult to separate. The first defendant with the requisite expertise in scaffolding had particular control of the task of relocating and dismantling the scaffolding but the first defendant as principal contractor had overall control of the site. On the other hand as I have found, the second defendant had in place prior to the offence a system of safety for all contractors at the site. This system was comprehensive, and, by all accounts, adequate. The prosecutor described the system as "laudable". Nor could the system be described as a mere paper system. Instead, it was successfully implemented at the site in relation to both employees and contractors. According to the affidavit of David Moffat, the second defendant's construction director, prior to Mr Murdock's accident, 68 workers had been inducted at the site. This number represented all workers on the site with the exception of the three members of the crane crew. In my view the existence and operation of this system at the site makes the objective culpability of the second defendant less than that of the first defendant. As to Deno's Cranes it had a significant role as Mr Murdock's employer and, on the facts was capable of making appropriate enquiries to ensure the crane crew undertook the task it was assigned safely. I intend to take the culpability of Deno's Cranes into account when sentencing both defendants.

At a glance

Court

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Judgment (55 paragraphs)

Cases Cited (11)

Cited By (5)