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

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Fletcher Constructions Australia Ltd v The WorkCover Authority of New South Wales (Inspector Fisher) Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 CASES CITED: Morrison v Powercoal Pty Ltd & Anor (No. 3) (2005) 147 IR 117 R v Thompson; R v Houlton (2000) 49 NSWLR 383 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383 WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284

Prosecutor: Mr M. Cahill, of counsel Solicitors: Legal Group WorkCover Authority LEGAL REPRESENTATIVES:

Defendant: Mr G. Graham, of counsel Solicitors: Shaddick, Baker and Paull

Inspector Erinn Stevens v Garry Talbot t/as Jappa's Arboricultural Services

Prosecution pursuant to s 9 of the Occupational Health and Safety Act 2000

1 Garry Talbot t/as Jappa's Arboricultural Services has pleaded guilty to an amended application for order which alleges that an offence was committed under s 9 of the Occupational Health and Safety Act 2000. The offence is particularised in the amended application in the following way:

On 24 June 2002 the defendant failed to ensure that people not in his employment more particularly Warren Kenneth Hill were not exposed to risks to their health and safety arising out the conduct of his undertaking while they were at his place of work in that:

1. The defendant failed to design, implement and or maintain a safe system of work for the felling of three eucalyptus trees so as to ensure that people not in his employ in particular Mr Hill were not exposed to risks to their health and safety arising from the felling by the defendant of those trees.

2. The defendant failed to provide any or any adequate supervision of Mr Hill.

3. 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:

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.

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.

12 The foregoing summary of the evidence given during the proceedings reflects in my view the seriousness of the offence. The defendant through the adoption and implementation of unsafe work practices within an industry already notorious for its inherent dangers and hazards exposed both himself and Mr Hill to the risk of grave injuries. The tragic consequence of this was the death of Mr Hill. 13 The available literature on tree felling contains advice and warnings about the hazards involved in the industry and measures to avoid them. In the Code of Practice Amenity Tree Industry, August 1998, a publication of the WorkCover Authority of NSW, a section headed "Felling", states:

A safe working zone should be set up and maintained when felling a tree. The zone should extend for at least twice the height of the tree. Clear the safe zone of any debris and identify an escape route for an area 45 degrees behind the line of fall of the tree.

A competent person should be nominated to control the work and assess the risks. This assessment should consider:

• the soundness of the tree - the shape and weight distribution of the canopy - the presence of hangers in the canopy - the lean of the tree - the wind force, direction and consistency of wind - proximity of the tree to services such as overhead powerlines - nature of the terrain - the location of structure, people and traffic . . . . .

Felling of trees that are rotten, split or have a lean should only be undertaken by a person experienced in this type of work.

Suitable equipment (such as wedges), should be used to prevent a tree falling in a direction other than that intended.

A scarf and back-cut should be used in felling trees over 200mm in diameter measures at approximately breast height.

The operator should move away from the tree, along the planned escape route as the tree begins to fall. 14 Australian Standard AS 2727 - 1997 Chainsaws - Guide to Safe Work Practices also contains a section on the felling of trees (at 4.5.3). Under a sub-heading "Worksite preparation", the Standard suggests a number of considerations to be taken into account when preparing a worksite for tree felling (at 4.5.3.4). These include:

(a) Safety distance A safe area should be established to ensure that all persons not involved in the felling operation or machines not required for the felling operation are not less than twice the length of the tallest tree to be felled from the operation. This safe distance should be increased on steep slopes because felled trees may slide downhill.

Where a faller is under instruction, other authorized persons may be within the immediate felling area provided an adequate escape route is prepared for all persons to use as the tree is falling.

(b) Undergrowth at the base of the tree Bushes, branches and debris which could hinder movement around the base of the tree during the felling operation should be removed.

(c) Escape route An escape route 45 degrees on either side and backwards from the direction of falling as shown in Figure 4.9 should be cleared to enable the faller to avoid the reaction of the falling process.

NOTE: Available statistics indicate that most falling accidents occur within 4 m of the stump.

(d) Removal of local hazards within the falling area All hazards in the falling area should be removed. These hazards include dry stags, small saplings and fallen timber.

15 As the extracts from both documents emphasise, the designated safe area for the purposes of felling operations should be not less than twice the length of the tree to be felled. This safety direction was not followed in the present circumstances.

16 The Code of Practice also contains an informative statement on the dangers associated with tree felling:

…TREE WORK IS HAZARDOUS. The industry is full of hazards ranging from the tree itself, to the weather, the terrain and difficult sites in which tree work is carried out. Each year, many people in the tree industry are killed or injured.

Apart from the enormous impact of injury on individuals and their families, accidents cost the community significant amounts of money. The relatively high incidence of injuries is reflected in the high rates of workers compensation insurance premiums.

When injuries are analysed, the overwhelming majority could have been prevented by following the simple safety procedures outlined in this Code of Practice.

17 The defendant according to Ms Fakes had undergone two short TAFE courses, the first being a preliminary course relating to the theoretical component of arboriculture and the second relating to the practical application and conduct of tree removal. The second course in turn also included a section on tree felling. There is little evidence which might indicate the length and complexity of these courses or even whether the defendant completed them. The defendant also held himself out to Mr Alogdellis as having over 20 years experience as an arborist. Nevertheless the defendant on the day of the offence failed to follow some well known and seemingly elementary rules of safety when tree felling. The defendant for example did not follow the direction necessary for the establishment of a safe working zone. In the context of felling the second tree utilising a rope the method employed was for the puller (the defendant) to pull the rope in the direction or line of fall. This method however was only considered safe according to the literature and according to the evidence of Ms Fakes if the length of the rope was more than the length or height of the subject tree. Moreover the practice utilised by the defendant according to the second version of events, that is to align the rope at an angle of 45 degrees to the line of fall, Ms Fakes describes as not "operationally sensible" since the method of felling by means of a rope involved pulling the rope in the line of fall, not at an angle.

18 The hazardous nature of the work and the attendant risks involved are highlighted in the literature. The risks associated with the activity are numerous, varied and potentially serious. They are set out for example in the section of the Standard dealing with the assessment of trees to be felled as follows:

(a) Location and condition of adjacent trees Other trees should be examined for physical features which may create a hazard to the faller if the selected tree is felled.

(b) Felling patterns Where necessary a felling pattern which will allow trees to be felled into open areas should be established.

(c) Lean The direction and magnitude of the lean of the tree should be determined accurately. The lean has a significant influence on the options available to the faller. It is difficult to fell a tree against a moderate lean and trees with a heavy forward lean should only be felled by operators with the appropriate skills and experience.

(d) Wind The strength and direction of the wind will influence the direction of the fall. Felling should not be carried out in gusty high wind conditions. Where felling in windy conditions is necessary, it should be carried out in the direction of the wind.

(e) Ground conditions The condition of the surrounding ground should be considered before establishing the direction of the fall. Features which may influence the direction of the fall include terrain (slope, gullies and rocks) and vegetation (re-growth, creepers and other timber on the ground).

(f) Widow-makers [a limb or section of a tree which may fall at any time] The tree to be felled and surrounding trees should be checked for widow-makers.

(g) Intergrowth with adjoining trees The tree to be felled and surrounding trees should be checked for intergrowth and climbing vines. These can cause hang-ups [a tree which has fallen into another tree], widow-makers or can swing the tree from the desired direction of fall.

(h) Condition of tree The condition of the tree to be felled should be checked for: (i)stem form; (ii) rot; (iii) burnt and hollow sections; (iv) cracks and splits; (v) whether parts of the tree are dead or alive; and (vi) foreign objects in the wood.

(i) Weight distribution The weight distribution of the tree should be checked. Branching or heavy growth on one side may pull the tree in that direction. The balance of the tree may be a combination of the lean and the slope of the ground and these should be evaluated together.

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].

20 The existence of a reasonably foreseeable risk to safety which is apparent on the evidence before the Court renders the offence objectively more serious. Fletcher Constructions Australia Ltd v The WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 70; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [87] to [92].

21 Given the literature available to the tree felling industry, the numerous warnings, as well as the detailed safety measures set out in that literature, all of which illustrate the hazardous nature of the industry, it is of the utmost importance to compel attention to the principle of general deterrence: see WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383 at 452.

22 In relation to specific deterrence the principles of this Court emphasise that the circumstances in which specific deterrence would not be taken into account in prosecutions under the occupational health and safety legislation would be quite rare: Capral Aluminium Ltd at [61]. The defendant's evidence, however, indicated that following the offence he has had little involvement in the industry. His work within the industry has been limited to working for others on an intermittent basis. In addition, in February 2004 he says that a lot of his equipment was stolen from his vehicle. Given this evidence, which I accept, I consider that the appropriate course is that I do not include in the penalty to be imposed an element for specific deterrence: see Morrison v Powercoal Pty Ltd & Anor (No. 3) (2005) 147 IR 117 at [105].

23 At the time of the offence the defendant did not have in place a coherent organised system for the felling of the three trees. He did assess the terrain and surrounding conditions but ultimately implemented patently unsafe work practices. The defendant produced in evidence a pro forma "Work Hazard Assessment" document but there was no evidence that such a document was completed in relation to the offence. The defendant's plea of guilty includes a plea to the failure to have in place a safe system of work. The implementation of unsafe work practices by the defendant provides compelling evidence of this failure.

24 This offence has resulted tragically in the death of Mr Hill. Given the nature of the risks which may arise in relation to the tree felling industry it is a likely consequence that in the absence of preventative measures aimed at obviating those risks that any resultant injury will be very serious, even fatal. The death of Mr Hill in my view is a manifestation of the risks. This serves to emphasise the seriousness of the offence: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [23].

25 The documentation which comprehensively outlined a number of recommended safety practices and warned of possible risks in my view would or should have been accessible to the defendant. In any event the defendant had undergone some education in relation to the industry. He had also, on his own evidence worked in the industry for some 20 years. This suggests that the defendant was at the time of the offence aware of both the risks and the recommended safety measures or practices in relation to the occupation of tree felling, but failed to have regard to them. This circumstance also serves to emphasise the seriousness of the offence.

26 The maximum penalty in relation to the offence is $55,000.

27 The defendant so the Court was informed has no prior convictions. This entitles him to leniency normally extended to an offender who is not otherwise adversely recorded. There also seems to me to be no dispute that the plea was entered at an early stage. This feature will be reflected in an appropriate discount in accordance with the principles set out in R v Thompson; R v Houlton (2000) 49 NSWLR 383. In my view, the appropriate discount is 25%. The early plea is also reflective of contrition on the defendant's part and this will also be taken into account in his favour.

28 The defendant also contends that the imposition of any financial penalty will place a significant burden to him as he has very limited means to pay a penalty. The deterrent effect of paying a fine according to the defendant must be balanced against his means, and the level of the fine should reflect the capacity of the person to pay the fine. The defendant attached banking records to his affidavit to show the current state of his finances. These records and other evidence given by the defendant shows that the defendant receives a fortnightly pension from the Veterans Affairs Department and fortnightly payments from Comsuper. He has a personal loan he is currently repaying in the sum of $10,689 which he had taken out in order to purchase a motor vehicle. This vehicle was however stolen in 2003 and the defendant has since relied on public transport. He owns no furniture apart from some tools and personal furniture. He lives in rental accommodation and pays $440 per fortnight. He has two children aged 13 and 14 from his first marriage and pays child support for them in the sum of $123.08 per month. He also has a personal loan with the Defence Force Credit Union in an amount of $10,000. He has an outstanding fine due and payable to the RTA as a result of a driving conviction in the sum of $446.

29 I conclude from this material that the defendant has a limited capacity to pay a fine. I propose therefore to impose a fine which appropriately reflects the objective seriousness of the offence and takes into account the defendant's limited capacity to pay a fine.

30 In determining penalty against the defendant I have taken into account the objective seriousness of the offence, the personal factors outlined above and the absence of prior convictions. All of these factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 21A. I have also taken into account the defendant's capacity to pay a fine.

31 In Matter No IRC 3654 of 2004 I make the following orders:

(1) The defendant Garry Talbot t/as Jappa's Arboricultural Services [ABN: 14 358 863 244] is convicted of the offence.

(2) The defendant is fined $7,000, with a moiety thereof to the prosecutor.

(3) The defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement as assessed.

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