c. To lay floor sheeting out in front of work area, to reduce the risk of falls.
7 In addition, there was tendered into evidence for the prosecutor a number of photographs, a factual inspection report and, importantly, a guide for installation issued by the manufacturer of the joists which were being installed on the building site.
8 For the defendants, there was tendered into evidence a statement of Mr Harvey, a copy of the statement given by Mr Kirchen to the prosecutor and copies of some taxation returns for Mintark.
9 The defendants having pleaded guilty are taken to have pleaded guilty also to the particulars of the charges.
10 As is obvious from a reading of the charges and the agreed statement of facts, it is clear that Mintark failed to take adequate steps to prevent Mr Kirchen from being exposed to a risk of falling a distance of some 2.5 metres and the consequent serious injuries which he suffered. Mr Kirchen fell because the joists were not sufficiently stable to bear the load created by the force of the collapsing pallet of floorboards.
11 During the course of the hearing, some additional facts were agreed between the parties concerning the manner in which the joists had been affixed to the top of the frame. Firstly, the joists were nailed through pieces of edging which were glued to the joists' material and became part of the joists. The edging was about 50mm wide and each joist was somewhere between 20 and 25mm wide. Accordingly, there was somewhere between 10 to 15 mm of edging which protruded beyond each side of the joist itself. One or two 75mm nails were placed through this edging on either side of each joist into the top of the frame. Furthermore, blocks were placed between each alternate pair of joists and the blocks were nailed to the joists and the top of the frame. This produced a reasonable degree of stability, which was certainly sufficient to enable Mr Kirchen and others to walk on top of the joists while building work was being performed in the area. However, as was conceded by the defendants, no temporary battens had been placed across the top of the joists to increase their stability as was required by the manufacturer's installation instructions. Accordingly, whilst there was sufficient stability in the joists to allow "normal" work to be carried out whilst walking upon them, the stability was insufficient to bear the force created by the circumstances in which the packs of floorboards were inappropriately positioned during the course of unloading them by using the crane.
12 This situation was exacerbated by the fact that the floor joists were uncovered, there were open penetrations between each joint, there was no fall prevention system in place, including any fall arrest harness, scaffolding or temporary hand railing and Mr Kirchen had not been properly trained or instructed in carrying out work which was effectively to be undertaken by a qualified dogman. Furthermore, Mr Kirchen had not been instructed that he should not engage in activities that should be undertaken by a qualified dogman. All of these matters need to be considered against Mr Kirchen's age and relevant lack of experience and the fact that he was unsupervised at the time of the incident. Finally, I observe that the generic safe work method statement utilised by Mintark was inadequate to cover the work which was being undertaken by Mr Kirchen against the background that no adequate risk assessment of the work had been undertaken.
13 The commencement point for the assessment of the appropriate penalty is consideration of the objective seriousness of the offence. This is not the case of an employer that had no regard for the safety of employees or that did not have in place any appropriate or proper system of work and system of instruction, training, supervision and the like. On the evidence, Mintark was concerned to ensure that it undertook its work in a safe manner and it did have procedures and protocols in place to this effect. However, as is demonstrated by the matters to which I have referred, there were a number of deficiencies that, unfortunately, gave rise to the serious injuries which Mr Kirchen sustained.
14 Whilst this is not a worst-case situation, neither can it be considered at the lower end of the scale. Indeed, the defendants' solicitor properly conceded that the offences were serious. The injured employee was working in exposed conditions at a height, engaged in a process that he was not properly trained to undertake and without appropriate supervision for such a task. Viewed objectively, the offence is a very serious one.
15 In assessing penalty, I shall also take into account both the general and specific deterrent that the imposition of a penalty will create. Work performed in the building industry is notoriously fraught with danger and those engaged in that industry need to understand that any breaches of provisions of the Act will expose them to appropriate penalties provided by the Act. Furthermore, although there is some doubt as to whether Mintark continues to trade, on the evidence Mr Harvey is still engaged in the industry. I will deal with his circumstances later in these reasons for judgment.
16 There are certain subjective matters that the court is entitled to take into account in favour of the defendants and I propose to do so. Each of the defendants pleaded guilty at the first available opportunity. There was full cooperation with the WorkCover Authority of New South Wales in and in connection with its investigation of the incident, there has been a sincere expression of contrition and remorse and the defendants have no relevant prior convictions.
17 The evidence of Mr Harvey is that he completed a carpentry apprenticeship in 1990. In 1992 he commenced working for himself. In about December 1994, he caused Mintark to be incorporated. The sole shareholders of that company are Mr Harvey and his wife. Mintark has performed carpentry work for residential project homebuilders since 1997.
18 It was Mr Harvey's evidence that the accident to Mr Kirchen had a profound personal effect on him. He rendered assistance to Mr Kirchen whilst he was in hospital and, after he was discharged, he assisted in carrying out modifications to enable Mr Kirchen to have wheelchair access to the home in which he resided. Furthermore, he ensured that Mr Kirchen completed his apprenticeship.
19 Mr Harvey was emotionally unable to return to work for some time after the accident but finally did so because of financial circumstances. He said that when he returned to the building site for the first time after the accident:
I was physically sick. I would think about Jamie's accident and play it over in my mind how it occurred. Every time I went to work I would constantly think about his accident to the point of paranoia. I struggled emotionally to perform work until I was served with these papers prosecuting the company and me personally for this accident. When I received the papers I made the decision to complete all the jobs that I currently had and leave the industry. I had been in the industry at that time for 23 years. I considered I had a good reputation and business contacts and could have continued to earn a reasonable living in the industry which would have provided for my family. However, as I was so affected by Jamie's accident and the consequence of these proceedings, I knew I was unable to continue to work in the industry.
20 Subsequently, Mr Harvey qualified for and commenced work carrying out pre-purchase inspections and he obtained a builders consultancy licence. As a result, he said that he suffered a significant drop in income and he and his wife sold their house in June 2008 and are currently living in rented accommodation. They have two school-aged children.
21 In about the beginning of November 2009, Mr Harvey commenced work as a site supervisor for a project home company.
22 The prosecutor sought a moiety of any penalty imposed and an order for costs, neither of which was opposed by the defendants.
23 Having regard to all of the matters to which I have referred including especially the objective seriousness of the offence, the need to take into account the matters going to deterrence and the subjective mitigating factors, which I have briefly described, I intend imposing a monetary penalty on Mintark of $115,000. I note that the maximum penalty that could be imposed is $550,000.
24 The maximum penalty applicable to Mr Harvey is $55,000. I would assess his culpability as equal to that of Mintark because he was, in effect, the directing and controlling mind of Mintark and, in reality, a working director. However, in considering the appropriate monetary penalty to be imposed on Mr Harvey personally, I note and take into account the significant financial impact that the consequences of the incident have already had on him and his family, namely a financial loss culminating in the sale of the family home and the rental of alternative accommodation. I accept his evidence that the impact of the incident personally on him resulted in significant loss of income and resulted in him abandoning project home work as a source of income. I note also that he has, on his evidence, been profoundly emotionally affected by the serious injuries suffered by his apprentice.
25 Furthermore, I note that Mr Harvey and his wife are the sole shareholders of Mintark and that the financial burden imposed on that company by the imposition of the penalty of $115,000 will ultimately be borne by them as shareholders. Consistent with the reasoning that I adopted in Inspector Webster v AGG Concreting Pty Ltd, Darryl Coffey and Steven Stathis [2009] NSWIRComm 55, I propose to take this matter into account also in fixing an appropriate penalty to be paid by Mr Harvey. In all the circumstances I propose imposing a penalty on Mr Harvey of $3,000.
Orders
26 I make the following orders:
1. Each of the defendants is found guilty and convicted of the charges brought against them.
2. I impose a penalty of $115,000 on Mintark and $3,000 on Rodney Gerald Harvey with a moiety in each case to the prosecutor.
3. The defendants are to pay the costs of the prosecutor in an amount assessed by the court in default of agreement, in such proportion as the penalties imposed upon each of the defendants bears to $118,000.