Inspector Stephen Cooper v Franklin Alden Coveney and Another [2008] NSWIRComm 80 | Case summary

Inspector Stephen Cooper v Franklin Alden Coveney and Another [2008] NSWIRComm 80 | Case summary | Zoe

(a) at all material times each defendant was one of two directors and ultimately responsible for all systems of work and work methods employed by the corporation." 5 On 26 February 2003 Messrs Boland and Shaw attended the Wilson Parade site pursuant to an earlier request made to Whyco by Rail Infrastructure Corporation (RIC) through its supplier, Combined Rail Services (CRS), for the wet hire (crane with crew) of a Franna 18 ton mobile crane. The crane was required on that day to install a steel-reinforcement cage into a pre-bored hole located at track level on the western side of the railway lines. Whyco provided a Linmac FE 420C ton crane, not the Franna crane originally requested for the task. Both cranes, according to the statement of facts were capable of performing similar operations, and the levers on both were set up in the same configuration. The relevance of this, as I understand the prosecutor's submissions on sentence, is that the incident (to which I will shortly come), which occurred on the day, was caused by the actions of the crane driver who mistakenly believed he was using a lever to wind the cable onto its drum when in fact he was raising the boom of the crane. 6 The crane crew arrived at the Wilson Parade site at about 7.00am. Mr Shaw was the designated crane driver and Mr Boland performed work as the dogman. Both signed a pre-work briefing document before they commenced work. This document was generated by RIC, the principal contractor in control of the site. It was included in the sentence tender bundle which was received into evidence during the sentence proceedings. It contained the names and signatures of both men. Significantly it contains a handwritten notation in the columns headed "Hazard" and "Control" respectively, which identified high voltage wires as a hazard and the words "stay clear" as the suggested control. 7 The crane crew initially performed some work installing and bracing a large steel column (H beam) into the hole in which the steel-reinforcement cage was to be installed. After completing this task they packed up and moved to the other side of the railway track to install the cage on the western side of the railway line. Before doing this, Mr Shaw as the crane operator, filled in a pre-job inspection sheet. This document was a Whyco generated document and contained a number of items required to be ticked "yes" or "no" as part of the pre-site inspection. All items had been ticked "yes" including Item 3 which asked: "[c]an safe distances be maintained from all electrical wires etc to meet statutory requirements?" A further section of the document headed, "11. Any other parts of concern? Please note", had been left blank. 8 Following a morning tea break the crane crew commenced the installation of the cage, which had been loaded onto a utility. Mr Klaser, a RIC employee, was standing near the utility. Mr Shaw reversed the crane in order to hook the cage to the crane's chains to lift it off the utility. He positioned the boom so that Mr Boland could connect the chains. After connecting the chains Mr Boland signalled Mr Shaw to hook up. The utility was moved out of the way and Mr Shaw lifted up the crane with the cage raised so that it could clear a cyclone fence. The load was then lowered into the hole at the track level. Mr Boland at that time was directing Mr Shaw from a position on an access ramp which lay between the crane and the hole. The lift was carried out with part of the crane's jib located directly under overhead powerlines. These power lines carried 11,000 volts and were about 10,440 mm above the western side of the ramp, about 9,900 mm above the eastern side of the ramp, and about 8,930 mm above the crane. The crane had a boom length of 18.60 meters, and the maximum boom angle was 40 degrees. 9 After the load was placed into position, some RIC employees, working at ground level, disconnected the cage. Mr Boland continued to direct Mr Shaw from the western edge of the access ramp. He signalled Mr Shaw to slowly winch up the chain and hook. While Mr Boland was holding either the chain or the hook, the crane's jib came into contact with the overhead power lines. Mr Klaser saw the jib of the crane coming into contact with the high voltage aerial. He is recorded as saying that the, "jib was past the wires by about one and a half, two metres". He yelled out to Mr Shaw, "[g]et your boom down". Mr Boland still holding onto either the chain or the hook, received an electric shock from the power lines. He screamed and fell to the ground. He was given first aid treatment at the site and was transported to Sutherland Hospital. He later died, the official cause of death was electrocution.

The risk to safety and foreseeability of the risk 10 The dangers of working near live power lines are obvious. Many cases have come before this jurisdiction following accidents involving exposure to live power conductors, including overhead power lines and electrical apparatus, often with fatal consequences. There is a wealth of information in the public domain aimed principally at the safety of persons working in proximity to live electricity. The statement of facts tendered in these proceedings refers to some of that information. A document entitled "Interim Guide for Operating Cranes & Plant in Proximity to Overhead Power Lines," which reproduces approach distances to live overhead electrical apparatus, as applied by former regulation 133A of the repealed Construction Safety Regulations 1950, details safe working distances for cranes working near overhead power lines. For voltage not exceeding 132,000, the minimum approach distance is three metres. A WorkCover publication, "Safety Guide - Moving Plant on Construction Sites" (published April 2000) suggests an examination of precautions necessary to prevent persons, appliances or loads coming within a certain nominated distance to overhead power lines. That publication also nominates three metres as the minimum approach distance to overhead power lines with a voltage not exceeding 132,000. Two Australian Standards, AS 2550.1 - 2202 "Cranes, Hoists and Winches - Safe Use Part 1: General Requirements" and AS 2550 - 2002 "Cranes, Hoists and Winches - Safe Use Part 5 Mobile Cranes (and cranes generally)" (commenced 24 June 2002) also set out approximate separation distances to be maintained while working in proximity to live power conductors. A number of regulations in the Occupational Health and Safety Regulation 2001 set out various requirements, methods of risk control, and identification of hazards when working with or near live electricity. Regulation 41(4) provides that a controller of premises must ensure that persons working in or undertaking maintenance on the premises (apart from those persons undertaking electrical work) are prevented from coming within an "unsafe distance" from any overhead electrical power lines and live electrical installations unless a risk assessment determines otherwise. Regulation 64(1) requires that an employer must ensure that risks of injuries arising from electricity at a place of work are eliminated, or controlled where elimination is not reasonably practicable. Regulation 64(2)(e) requires that persons at work and their equipment etc do not come into close proximity with overhead electrical power lines, except if the work is done in accordance with a written risk assessment and safe system of work and the requirements of the relevant electricity supply authority. 11 This material was publicly available prior to the commission of the offences. Despite this, the defendants failed to conduct a risk assessment of the site, or conduct an adequate inspection of the site, or ensure any number of safety methods were in place at the site such as arranging a person to act as a "spotter" to ensure that the crane remained at a safe working distance from the overhead power lines. Moreover, an attempt was made to alert the defendants to the fact that overhead power lines were present at the site. Anton Brinckmann, employed by Whyco as a crane operator, had on two occasions, on 16 and 17 December 2002, written in item 11 of Whyco's pre-job site inspection form, as a point of concern, "overhead power lines moving trains overhead train wires soft ground". Mr Brinckmann in an interview with the prosecutor conducted after the accident explained his concerns at the site when operating a crane: "Q: Is there anything further you would like to say about this matter?

A: Just that they were adjacent to the area where we were working and that I needed to operate the crane in a particular way to maintain safe distances from these hazards." 12 On 27 February 2003 Mr Coveney and others visited the site in order to conduct an investigation into the accident of the previous day. His conclusions, contained in a handwritten note dated the same day of the investigation, were: "We checked measurements of the wire heights, voltages and proximity of the wires in relation to the crane's position at the time of the incident. We also tried to ascertain the position of the deceased dogman prior to and at the time of the incident. It must be said that not one of us could see any major risk with any of the above. Whilst we are agreed that working near live wires is and should be a concern, we are agreed that any one of us would return and be satisfied that we could do the job safely within the requirements of regulation 133A." 13 It is difficult to reconcile Mr Coveney's conclusions with the published material concerning the dangers of working near live overhead power lines which was widely available and specifically dealt with the risks to safety associated with working near live electricity. It is equally difficult to reconcile his conclusions with the circumstances which prevailed at the time of the offences, including the lack of preventative and risk control measures at the site. 14 Mr Whyte in his interview, conducted by the prosecutor following the accident, was shown the two pre-job site inspection forms dated 16 and 17 December 2002, respectively, in which Mr Brinckmann had noted his concerns about the overhead power lines. He said in response: "A: I took no action as the fellow driving this crane uses the form to point out obstacles and I believe he makes himself aware of hazards on the site and as stated on the bottom on double size bold, do not commence work until you are satisfied that the job is safe. Anton would have phoned me straight away if he felt that the job was unsafe to go on with." 15 Mr Whyte also said that he could not recall having read the forms. Later in the interview he said, "we on the day (were) unaware of the close proximity to electrical lines." 16 It is instructive to look first at Mr Coveney's conclusions set out above, in the context of the evidence against Whyco and its failure to ensure the safety of the workers at the site on 26 February, 2003. No adequate site inspection was conducted. No adequate risk assessment was conducted. The work of installing the cage was undertaken by a crane with a boom extension of 18.60 metres. The crane was located directly underneath live electrical power lines which were in turn located at a distance between some 10,440 mm to 9,900 mm above the ramp (where Mr Boland was standing) and some 8,930 mm above the crane. The available literature on the dangers of working near live power lines suggested that the minimum approach distance should be three metres where the voltage does not exceed 132,000. 17 The only reasonable conclusion based on these matters is that the risk to safety was not only obvious, it was also reasonable foreseeable. This conclusion, and the factors which give rise to this conclusion, elevate, in my view, the offences against both defendants into the category of extremely serious offences.

General deterrence 18 It appears that Mr Whyte did not know that Messrs Shaw and Boland were working near live electrical power lines on the day of the accident. This is despite the fact that Mr Brinckmann, in his attempt to abide by Whyco's system, raised his safety concerns in relation to working at the site by detailing them on two pre-job site inspection forms. According to Mr Whyte the forms were not checked on a daily basis. He said it was not "physically possible the office may have been shut and the forms may not have been returned to the office for one or two days." He also said that the forms were only inspected, "on a call in if there was a problem it was acted on immediately and the pre-job site inspections were reviewed when we did our invoicing which was approximately every two to three days." Nor did Mr Whyte visit the site prior to the accident. He said he relied on Mr Klaser's, "vast knowledge in the industry." He apparently had had a telephone conversation with Mr Klaser prior to 26 February 2003, who he said informed him that there was no necessity to send a supervisor to the site. Following that conversation Mr Whyte formed the view that it was, "not necessary to have a pre-site inspection". 19 This evidence demonstrates yet again the need to emphasise the principle, relevant to an inquiry into the liability of employers and self-employed persons under the occupational health and safety legislation, that employers etc must be "proactive" in searching out risks to safety of persons at work and in the workplace, with a view to eliminating, or where that is not possible, minimising those risks: see for example WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 at 85; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [77]; Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 at [33]. 20 It is simply not enough to institute a system such as pre-site inspection forms to be filled in by a worker at the site, where safety concerns in relation to the task at hand are raised in the forms, but where those forms are not accessed or read until some two days later. By then it is often too late. 21 Nor does an employer discharge his or her statutory obligations under s 8(1) and 8(2) by reliance on a third party to ensure the safety of workers. Where reliance is placed on a third party to implement adequate safety measures in order to minimise the risks to safety at work, or in the workplace, the employer's obligation is to make adequate enquiries and implement proper processes to ensure that the necessary systems such as training, supervision, risk management etc have been or are being provided. 22 The foregoing observations highlight the necessity to invoke the principle of general deterrence in the context of the dangers associated with working in the proximity of live overhead power lines. The circumstances of this tragic accident reveal the need to implement adequate controls in order to ensure that persons undertaking work in the vicinity of power lines can perform the work safely and without incident. The wealth of public information emphasising the obvious hazards, and setting out detailed systems of risk assessment and management, attest to industry recognition of these obvious hazards. Despite this information, workers continue to be exposed to risks to their safety, and accidents associated with live electrical apparatus continue to occur. Specific deterrence 23 Specific deterrence is also important. Mr Whyte continues to work in the industry as a self-employed crane driver. He owns a mobile crane hire business. He remains the sole director of Whyco. Mr Coveney also continues to work in the industry as a crane driver. He operates a mobile crane hire business and has one employee who works as a dogman. Notwithstanding the safety measures implemented by the defendants (an issue which I will discuss shortly) following the accident, the principle continues to have application. Both defendants conduct businesses which hire out mobile cranes. Persons operating mobile cranes often work in the construction industry, where hazardous work environments may expose workers to risks to their safety unless appropriate and adequate measures are taken to protect them: see generally discussion of the principle in WorkCover Authority (NSW) (Inspector Jones) v Challita (2006) 153 IR 409 cited at [32]to [35].

25 These factors, both singularly and in combination, attest to the objective seriousness of the offences. To some extent however, Whyco had in place a number of safety measures which were designed to minimise risks to safety in the workplace. Whyco for example had, prior to the offences, its own occupational health and safety policy. According to Mr Whyte he had ultimate responsibility for the implementation of all safety systems set out in the policy. Whyco employed Paul Churchill as a technical supervisor in about May 2002. His responsibilities included attendance at work sites and the preparation of risk assessments. Jobs were arranged by an allocator who would request a site inspection, which according to Mr Whyte, were usually undertaken by either himself or Mr Churchill. Before a work crew was sent to a particular site they were required, according to Mr Whyte, to conduct a pre-job site inspection and complete the form that was contained on the job docket. 26 None of these measures were properly implemented at the Wilson Parade site on 26 February, 2003. No site inspection was undertaken, no risk assessment was done. The pre-job site inspection forms that were completed by Whyco employees prior to 26 February were not, according to Mr Whyte usually read until one or two days later. On 25 February 2003 the day before the accident, Mr Shaw as the designated plant operator was required to fill in the form. He failed to complete it. When Mr Whyte was questioned about this in his interview he said: "[we] have numerous problems with leading hands refused (sic) to sign these documents for whatever reasons but it doesn't undermine in my view the importance of the inspection. But this has happened on many rail jobs and it is an on going problem that we are investigating and trying to resolve." 27 These matters suggest that Whyco's efforts to implement its safety systems were not overly successful, particularly on 26 February, 2003. 28 Both defendants in their affidavits have sought to emphasis their genuine commitment to matters of safety in the workplace. Mr Whyte in his affidavit regarded it as essential that his employees and others, could operate in a safe working environment. Mr Coveney in his affidavit said he has always considered safety the most important priority, and that he and Mr Whyte both treated safety matters seriously. 29 It is clear that the defendants did have a reasonably comprehensive system in place prior to the 26 February, 2003 which sought to reflect matters of occupational health and safety. Although the system was not adhered to on the day of the accident, other documentation tendered during the proceedings reveals that the system was followed for the majority of the time. The existence of the system and its implementation up to the time of the offences shows that the defendants, for the most part, took their occupational health and safety obligations seriously. These matters are deserving of some mitigation of the otherwise objective seriousness of those offences. Subjective factors 30 The defendants have pleaded guilty to the offences. The prosecutor contends that as a result of the pleas, the defendants are entitled to some reduction of penalties for the utilitarian value of the pleas but that it would be an error to allow a "full discount" because the pleas, in effect, were entered at a late stage in the proceedings. According to the prosecutor the matters were originally set down for a three week hearing which has saved some Court time and dispensed with the need for the calling of witnesses. Nevertheless it was open to the defendants to plead guilty at any time after the charges were filed. In addition, and in relation to the aspect of contrition, the pleas were entered in the face of strong prosecution cases and likely convictions. 31 The defendants contended in written submissions that they entered pleas of guilty immediately after the prosecutor filed amended applications for order in Court, and that this entitled them to a discount of 25 per cent for the utilitarian value of the pleas. In oral submissions this contention was qualified by the concession that the pleas of guilty, entered on 5 October 2007, were to charges, which were, "in material form the same which existed prior to date with the exception of two particulars from each of the charges being withdrawn. That's the highest I could really put it." The defendants also conceded in oral submissions that the prosecution cases were strong and, based on the material in the brief, convictions would have been inevitable. 32 In my view the pleas of guilty were entered at a late stage, the amended charges being in substantially similar terms to the original charges. The defendants are, however still entitled to a reduction of the penalties for the utilitarian value of their pleas. The pleas of guilty have saved time and expenses otherwise associated with the running of a three week hearing. I consider an appropriate discount for the utilitarian value of the pleas is 10 per cent. The defendants are also entitled to leniency in recognition of the remorse shown by their pleas of guilty although determination of the appropriate penalties will be considered in the context of what can only be described as strong prosecution cases. 33 I also take into account in the defendants' favour the absence of prior convictions, their good citizenship, their cooperation with the WorkCover authorities during the investigation into the offences, their sincere expressions of regret for the tragic events that occurred on 26 February 2003, and the assistance rendered to Mr Boland's family. In relation to this latter aspect I note that during Mr Whyte's cross-examination he explained that Whyco paid for funeral expenses and later made claim for those expenses with Mr Boland's insurer, but that the claim was not pursued.

46 Mr Coveney's counsel, Mr Moses made a submission on his behalf that the Court exercise its discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 (CSPA). One basis upon which the submission was advanced was Mr Coveney's concern that if a conviction were to be recorded against him he may face some difficulty in remaining in Australia. Mr Coveney is apparently a citizen of the United States of America. The defendant conceded however that this contingency is "highly unlikely" (as to which see s 507(7) Migration Act 1958 (Cth)). In oral submissions by Mr Moses this particular aspect of the s 10 application was no longer relied upon. Instead, a number of other reasons were advanced in support of the application, namely, the absence of prior convictions, the level of his culpability in relation to the offences, the impact the accident has had upon him both professionally and personally, and his good character. It was also proposed that the s 10 discharge be subject to the condition that Mr Coveney be of good character for a period of 18 months. 47 It was conceded by counsel for Mr Coveney that an order under s 10 of the CSPA is only made in rare and exceptional circumstances: see for example WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [45] and [50]. In my view the circumstances which gave rise to the offences are such that it would be an inappropriate exercise of the Court's discretion to grant Mr Coveney's application. There can be no doubt that Mr Coveney is a person of good character as the many character references annexed to his affidavit attest, and, although the Court considers that Mr Coveney's culpability in relation to the offences was less that that of Mr Whyte's, the fact remains that the offences, objectively, were extremely serious. The Court has also acknowledged Mr Coveney's sincere expression of regret for Mr Boland's death. None of these matters either singly or in combination however, are sufficiently persuasive to attract the Court's discretion in order to grant the application. The finding that an offence is objectively serious, of itself would normally preclude the application being granted: Downie v Menzies at [55].

Penalty 48 In determining penalties against both defendants I have taken into account the objective seriousness of the offences, the maximum penalties, the factors in mitigation described above, the absence of prior convictions, and the respective culpabilities of both defendants. These factors have been considered by reference to the CSPA 1999, in particular s 21A. Totality 49 The application of the principle of totality is relevant because of the significant overlap between the s 8(1) and s 8(2) offences against each defendant. The charges also particularise identical breaches of safety, and the same conduct forms the basis of both offences: see Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2005) 105 IR 181 at [21] to [29]. 50 Adopting the analysis in Keenan to the present circumstances, and noting the maximum penalties available for offences against each defendant is $55,000, I consider that a fine in the sum of $20,000 should be imposed for the offence under s 8(1), and that a fine of $20,000 should be imposed for the offence under s 8(2) against Mr Whyte. In applying the principle of totality I consider that a total fine of $20,000 properly reflects the criminality of Mr Whyte in respect of both offences. 51 I consider that a fine in the sum of $16,000 should be imposed for the offence under s 8(1) and that a fine of $16,000 should be imposed for the offence under s 8(2) against Mr Coveney. In applying the principle of totality I consider that a total fine of $16,000 properly reflects the criminality of Mr Coveney in respect of both offences. Costs 52 The defendants seeks their costs thrown away as the result of the adjournment on 5 October, 2007. On that day the matter, which was set down for sentence, did not proceed because the prosecutor was not in a position to tender the statement of facts. In oral submissions during the sentence proceedings, the prosecutor conceded that he, "must bear the responsibility for the glitch that occurred", and the prosecutor suggested that the issue of costs may be resolved by a set off of the defendants' costs of 5 October 2007 against the prosecutor's costs. I propose to adopt the course suggested by the prosecutor. Orders 53 In Matter No IRC 3411 of 2006 I make the following orders: (i) The defendant Franklin Alden Coveney is convicted of the offence;

Inspector Stephen Cooper v Franklin Alden Coveney and Another

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