Inspector Stevens v Garry Talbot trading as Jappa's Arboricultural Services

Inspector Stevens v Garry Talbot trading as Jappa's Arboricultural Services - [2006] NSWIRComm 138 - NSWIRComm 2006 case summary — Zoe

[14]

The defendant failed to ensure that any "safe working zone" was identified and or maintained with respect to the felling of the subject trees. 2 An agreed statement of facts tendered on sentence by the prosecutor provides some information on the circumstances prevailing immediately prior to and at the time of the offence. The defendant had been engaged on or about 24 June 2002 to fell and remove the three eucalyptus trees from a private residence at 35 Pattersons Lane, Grose Vale by the owners and occupiers of the site, Mr and Mrs Alogdellis. At some stage prior to 24 June 2002 he had informed Mr Alogdellis that he had over twenty years experience as an arborist. He quoted four hundred dollars for the felling and removal of the three trees. It was arranged between the defendant and Mr Alogdellis that the defendant would attend on Monday, 24 June 2002 to perform the task. At about 9:30am on that day the defendant arrived at the premises with Mr Hill the father of the defendant's de-facto wife. At the time Mr Hill was wearing a purple polo shirt and a cloth cap both bearing the logo of the defendant's business Jappa's Arboricultural Services. According to the defendant Mr Hill was not his employee but attended the property for the purposes of providing assistance or in the words of the defendant "to lend a hand". 3 The defendant and Mr Hill removed the first tree which was located near the house of Mr and Mrs Alogdellis. The second tree was approximately 18.4 metres in height and about 250 millimetres in diameter. It was located at the bottom of a slope some 50 metres from the house. At some time during the process of removal of this second tree Mr Alogdellis recalled that he was at the back of the house when he heard a sound akin to a tree touching other branches on the way down and then the sound of a tree hitting the ground. These sounds were followed by a voice screaming "call the ambulance" which Mr Alogdellis proceeded to do. Ambulance officers arrived shortly after at the area where the defendant and Mr Hill had been removing the second tree. Mr Hill had received fatal injuries, the direct cause of death being an injury to the back of his head. 4 Senior Constable Barlow from the New South Wales Police arrived at the accident site at about 12:20 pm that day. He observed Mr Hill lying on his back with a large laceration on his scalp. Senior Constable Barlow also observed what he described as a large tree trunk which had been cut with the top located beside Mr Hill. He also observed a rope attached to the tree trunk and the end of the rope lying near Mr Hill. A brief interview was then conducted with the defendant who he described as "clearly distressed and in shock". According to Senior Constable Barlow the defendant told him:

[15]

I was contracted to cut down trees on the property by the owner. I asked my father-in-law Warren Kenneth Hill to help me for the day. On our first tree I used the ladder to climb up the tree trunk and place a rope around it. I asked Warren to take hold of the rope a [sic] take a strain so the tree would fall his way. We discussed what to do and where to run when the tree started to fall. I made my scaff [sic] cut in the trunk and on finishing, Warren called out to me to help with the strain on the rope. I ran to him and together we pulled on the rope until the tree started to fall towards us. I started to run to my left and on turning back to look at Warren, the tree trunk hit Warren on the head. I ran to him and tried to stop the bleeding but there was nothing I could do. I called out to the owner of the property and he called the ambulance. 5 The accident site was also attended on the same day at about 2:00 pm by the prosecutor and Inspector Davidson from the WorkCover Authority of New South Wales. The prosecutor made a number of observations in relation to the accident site. He observed that the trunk of the felled tree was partially dead and measured 16.9 meters in length. He also observed that a length of green rope was attached to the felled trunk of the tree through a small fork that was located about 5.4 meters up from its base. The rope was about 20 millimetres in diameter and approximately 18 meters in length. It consisted of two pieces of rope that had been joined by a knot in the middle of its length. The prosecutor also made observations about the stump of the felled tree. It was approximately 1.5 meters in height and 250 millimetres in diameter. The base of the felled portion of the trunk lay about 300 millimetres from the edge of the stump. The combined length of the felled trunk and the stump measured about 18.4 meters. The prosecutor also took a number of photographs of the accident site. 6 In an affidavit prepared for the purpose of these sentence proceedings the defendant gave a version which contradicted his earlier version concerning the accident. According to this second version the defendant said that Mr Hill was experienced in the tree lopping and tree felling industry. He accompanied the defendant on the day of the offence because he was anxious to recommence work in the industry as a contractor. The defendant drew a plan purporting to depict his recollection of the accident site which he annexed to his affidavit. He said he made a decision to use a rope to fell the tree because there was a soft wind. He tied the rope to the tree and proceeded on his own to pull the rope at an angle of about 45 degrees to the direction of fall. Mr Hill, he said, was at the time located in an area designated on the plan as a "safe area" which was, insofar as may be gleaned from the plan, directly behind the defendant also at an angle of 45 degrees to the direction of fall. The defendant contends that if Mr Hill had remained in that area he would have been safe but that he must have moved towards the direction of the fall of the tree because when the defendant turned around he saw Mr Hill lying on the ground near the top of the tree. 7 The defendant expanded upon his second version in his oral evidence. He said there was a four knot wind at the time he was preparing the second tree for felling and he was concerned to avoid any risk of the tree falling backwards because there were power lines about 15 to 20 metres away and a fence about 10 metres to the left of the tree. The house was located about 50 to 60 metres to the right of the tree. Uphill, according to the defendant, provided a clear corridor consisting of a row of trees about 25 to 30 metres so he decided to fell the tree in that direction. He chose, he said, to pull on the top of the rope at an angle of 45 degrees because of the corridor so he would not be situated directly in the line of the fall. He stood directly behind the trees using them as a wall for protection. Mr Hill was located at the top of the slope in the area designated on the plan as the "safe area". If the tree, he said, shattered or cracked it was less likely that a branch or limb would travel uphill, to the "safe area", and come into contact with Mr Hill.

[16]

Consideration 8 It is difficult to make any definitive findings as to which of the two versions is the more accurate. Certainly, the versions are irreconcilable. It may well be, and common sense would tend to favour such an approach, that the more contemporaneous account is to be preferred. This is especially so when after all, the reason Mr Hill accompanied the defendant was in order to gain experience and to acquaint himself with the tree felling industry in which he was anticipating working as a contractor. It is not, however, essential in my view to make a finding as to which version is to be preferred. In the words of the Vice-President, Walton J in WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 at [45] it is not necessary to arrive at a precise conclusion as to how an accident occurred. It is now "axiomatic" that the occupational health and safety legislation is focused on obviating risks to safety rather than on the circumstances of a particular accident. 9 What is significant here is that on either version it seems that the defendant utilised unsafe work practices. During the sentence proceedings the prosecutor called evidence from Judith Ann Fakes, an expert in arboriculture with extensive experience in tree removal. In a statement tendered into evidence and in oral evidence Ms Fakes emphasised that when felling a tree any rope used must be longer than the height of the tree. In the present circumstances the rope utilised by the defendant on either version was shorter than the height of the tree. This exposed persons within the subject area to the very obvious risk of being struck by the tree or a part of the tree, or even another tree in the event that the felled tree impacted with other trees in the vicinity. 10 In relation to tree felling by use of a chainsaw the available literature indicates the necessity of an escape route for the faller, that is the person felling the tree. This escape route is depicted in the literature at an angle of 45 degrees on each side of the trunk of the tree to be felled but opposite to the direction or line of the fall. Where a person, called a groundsperson, is also assisting in the operation by utilising a rope to topple the tree after the faller has made certain cuts in the tree with the chainsaw, then, according to Ms Fakes, the 45 degree angle escape route is not necessary for the groundsperson because that person should be operating the rope from a distance which is greater than the height of the tree. 11 At the time of the accident the defendant said in his second version that he was utilising the rope at an angle of 45 degrees to the line of the fall. This activity appears to be unrelated to any measures taken with a view to ensuring an escape route for the faller operating in an area inside the height of the tree using the chainsaw. Ms Fakes in her evidence commented on the defendant's depiction of the felling of the second tree using the rope in the diagramme attached to the affidavit. She observed that the rope depicted at a 45 degree angle to the line of the fall was not "operationally sensible" since the "pull method" is designed to operate by means of the tree being pulled towards the puller, that is in the direction or line of fall, not at an angle.

[47]

19 The foregoing facts taken together illustrate that the relevant risk to safety arising from the felled tree was both obvious and reasonably foreseeable. First, the activity of tree felling itself is replete with hazards and attendant risks to safety, all of which are well documented within the industry. Secondly, the defendant described in his evidence the topography and general climatic conditions prevailing at the time he commenced felling the tree. These included the undulating terrain (a slope of about 16 degrees), a corridor of trees in the vicinity of the second tree to be felled, the structural integrity of the second tree which the defendant deemed unsafe, a four knot wind, and the presence of power lines some 15 to 20 metres to the left of the second tree. Thirdly, the length of the rope utilised by the defendant to pull the second tree was shorter than the recommended length under the Code of Practice and the Standard. Ms Fakes gave evidence that in circumstances where a tree is to be felled by means of a person pulling it on a rope then the rope should be longer than the height of the tree. This as I understood her evidence was a necessary precaution aimed at ensuring the safety of the puller (here the defendant). In relation to other persons not actively engaged in the felling of trees, such as Mr Hill on the defendant's second version of events, I consider that the effect of various safety practices recommended in the Code of Practice and the Standard, namely, that the safe working zone should extend to twice the length of the tree to be felled, was intended to apply to those persons. Clearly, on the second version the practice was not implemented by the defendant. Fourthly, the defendant has suggested in his second version of events that Mr Hill inexplicably moved out of the designated "safe area" into the line of the fall of the second tree. Even if he did so, such conduct would not mitigate in any way the objective seriousness of the offence. A defendant is obliged under the legislation to proactively identify all possible risks and take appropriate preventative measures. This obligation applies just as forcefully to a situation where a person in the nearby vicinity acts carelessly, is inattentive or negligent or even disobedient to an express direction and thereby places himself or herself in a situation of risk: see for example the comments of Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [55] to [61].

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Judgment (63 paragraphs)

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Cases Cited (8)