Inspector Thomas Yeung v Neatrule Cement Rendering Pty Ltd as Trustee of the Neatrule Trading Trust

Judgment 1This prosecution is brought by Inspector Thomas Yeung of the WorkCover Authority of New South Wales ("the prosecutor") against Neatrule Cement Rendering Pty Ltd as Trustee of Neatrule Trading Trust ("the defendant" or "Neatrule") under s 8(2) of the Occupational Health and Safety Act 2000 ("the Act") by way of amended Application for Order. 2It is alleged the defendant, being an employer, on 12 November 2007 at 9 Fenton Avenue, Caringbah, in the State of New South Wales ("the premises"), contravened s 8(2) of the Act in that it failed to: . . . ensure that people (other than the defendant's employees), and in particular Said Al-Khaled, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000 . In particular: a) There was a risk of injury to non-employees working on scaffolding at the premises of suffering electric shock and/or electrocution from accidental contact by plant or equipment utilised by non-employees, with live overhead powerlines running across the premises. The particulars of the acts or omissions in failing to eliminate that risk are: (b) The defendant failed ensure the safety of non employees with respect to undertaking cement rendering work at the premises in relation to the working near live overhead powerlines in that it failed to undertake measures as follows: (i) ensuring that work was not permitted on scaffolding constructed under live overhead powerlines running across the premises, until the lines were de-energised or re-directed away from the work area ; (ii) ensuring that work involving the use of equipment such as aluminum straight edge was not permitted on scaffold that was erected within four vertical metres from live overhead powerlines; (iii) ensuring that work was not permitted on scaffolding at the premises until the erection of physical control barriers around or on top of the scaffold panels which ensured the isolation of the powerlines; (iv) ensuring that work was not permitted on scaffolding at the premises until warning signs were erected on the scaffold to alert persons to the presence and proximity of live overhead powerlines. (c) The defendant failed to undertake a risk assessment which: (i) considered and identified the hazards associated with working near live overhead powerlines; and (ii) considered and identified the risk of equipment coming into contact with live overhead powerlines . (d) The defendant failed to provide information and instruction to non employees undertaking cement rendering work at the premises in that it failed to undertake measures as follows: (ii) conduct site specific inductions to inform non employees of the presence and proximity of live overhead powerlines; (ii) conduct tool box talks to inform non employees of the presence and proximity of live overhead powerlines; and (iii) inform non employees not to work from the scaffold with equipment that was capable of coming into contact with overhead powerlines. (e) The defendant failed to ensure the safety of non employees undertaking work at the premises in relation to the performance of cement rendering work near live overhead powerlines in that it failed to undertake measures as follows: (i) ensuring that non employees did not work from the top level of the scaffold that was in excess of 2 metres high with equipment that was capable of coming into contact with overhead power lines. As a result of the defendants failures non-employees at the premises were exposed to the risk of coming into contact with high voltage powerlines. The injuries sustained by Said Al Khaled were a manifestation of that risk. 3The defendant pleads guilty to the charge. 4Mr C T Magee of counsel appeared for the prosecution and Mr G Walkom, solicitor, appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts and an a ffidavit of Inspector Yeung sworn 9 June 2011 . 5The defendant relied upon the affidavits sworn 12 July 2011 of Darren Bunney, sole director and secretary of Neatrule with attachments, Garry Cook, sub-contractor of Neatrule and Damien Sullivan, director of Sullivans Constructions Pty Ltd. An affidavit of Robert Mori, director of RMC Construction Services Pty Ltd sworn 14 July 2011, was also relied upon. 6The Agreed Statement of Facts relied upon relevantly reads: 2. At all material times NEATRULE CEMENT RENDERING PTY LTD [ACN 125 742 761] , ("Neatrule") a corporation with its registered office located at KPR Partners Pty Ltd, Suite 10, 2/4 Northumberland Drive Caringbah in the State of New South Wales, was a body corporate and entitled to be prosecuted by its corporate name and style. 3. At all material times Neatrule carried out cement rendering and plastering work in the construction industry. 4. At all material times Stuart John Hill of 28 Forest Road Yowie Bay ("Stuart Hill") was a director of Jacarada Property Developments Pty Ltd [ACN 091 272 132] ("Jacaranda"), a company which was wound up pursuant to an order of the NSW Supreme Court on 20 April 2009. 5. At all material times Stuart Hill was responsible for obtaining, managing and overseeing the contracts for building work for Jacaranda, including engaging subcontractors. Background 6. At all material times Jacaranda was involved in the business and construction of premises, including townhouses. 7. At all material times Jacaranda was the owner and principal contractor for the construction of 13 townhouses and units at 9 Fenton Avenue, Caringbah ("the site"). 8. At all material times Jacaranda had control in the course of its trade, business or undertaking of the site by virtue that it was the owner of the premises and principal contractor for the construction of 13 townhouses and units at the site. 9. At all material times the site was not occupied as a private dwelling. 10. At all material times Jacaranda contracted Tony Palmer as a site manager. Along with overseeing the work of subcontractors, Tony Palmer's duties included liaising with the local authorities and utilities as well the coordination of general labour. 11. Construction commenced at the site in or around February 2007. 12. In or around July 2007 Jacaranda engaged Waco Kwikform Limited ("Waco") to provide and erect scaffolding at the site. In turn, Waco subcontracted Solidscaff Pty Ltd ("Solidscaff'") to undertake the erection and dismantling of the scaffold. 13. At all material times, Darren Bunney was a director and employee of Neatrule. Darren Bunney is an experienced wet and dry plasterer and has been issued a Contractor License to undertake this work by the Office of Fair Trading. 14. In or around July 2007 Jacaranda entered into a verbal contract with Darren Bunney on behalf of Neatrule to provide cement rendering to the external walls of the newly constructed townhouses at the site. 15. In turn, Neatrule entered into a number of subcontract agreements with Said Al Khaled ("Mr Al Khaled"), Hussein Al-Jaboore and Gary Cook to perform the cement rendering work ("the rendering subcontractors"). 16. At all material times Neatrule had limited control of the site in the course of its trade, business or undertaking. 17. Mr Al Khaled is the holder of a Contractor Licence for wet plastering issued by the Office of Fair Trading and as at July 2007 had 15 to 16 years experience in performing work as a Renderer. 18. Neatrule's rendering subcontractors commenced work on the site in mid-late July 2007. The Site 19. The site consisted of six double story blocks, which were a mix of freestanding townhouses and unit blocks. There were six blocks at the site named A to F. 20. Fenton Avenue bordered to the site on the west and Captain Cook Drive on the east, wrapping to the north of the site. 21. Six 33,000 volt power lines ran adjacent to the site along Captain Cook Drive from Pole CR02549 (north) to Pole CR02550 (south). Pole CR02549 was approximately 2m north of Block A and situated 4m to the East (1m outside the side fence). Pole CR02550 was situated outside the site fence at approximately Block C. 22. The power lines varied in height from estimated 10.7m from the grade upward. The power lines were identified as 33kV via the six insulators at each line at the connection with the poles. 23. Due to the fact that Captain Cook Drive ran on the east of the site and wrapped around to the north, this placed at the power lines between poles CR02549 and CR02550 at an angle running through the north east side of the site. 24. The scaffolding at the north eastern corner of Block B extended approximately 1 metre past the property line. The 33kV overhead line passed over the top of the scaffold at the north eastern corner of Block B. At this point the overhead line was approximately 10.7 metres from the ground. The scaffold work deck was approximately 5.5 metres from the grade and approximately 5.2 metres below the overhead power lines at the point at which they intersected. The scaffold handrail was approximately 6.5 metres from the grade and approximately 4.2 metres below the overhead power lines at the point at which they intersected. Several standards rose an additional 1.2 metres above the handrail, reaching approximately 7.7 metres from the grade. At the first standard to the south of the north east corner standard the power lines were approximately 2.9 metres above the highest point of the scaffold (being the top of the second scaffold standard on the eastern face). From directly above or below, the 33kv power lines were horizontally 0.3 metres inside the outer corner of the scaffold hand rail and 0.5 metres from the outer corner of Block B. Safe scaffold clearances 25. Clause 5.4 of AS/NZS4576 "Guidelines for Scaffolding" requires a safe working distance of 4 metres or more between metal scaffolding and overhead power lines of 33,000 volts. 26. Clause 6.5(d) of the WorkCover Code of Practice - Work Near Overhead Powerlines (2006) ('the Code") provides that high visibility wrapping or "tiger tails" is not appropriate for use on overhead power lines exceeding 1000 volts. The Code further provides that although tiger tails provide a useful visual indication to people working in the area of overhead powerlines, they should not be regarded as providing electrical protection from electrical hazards. 27. Clause 9.2 of the WorkCover "Safe Working at Heights" Guide 2006 provides that the power lines should be de-energised and access authority should be obtained from the network operator if the scaffold and the overhead power line have the potential to come within the 4 metre approach distance. 28. Clause 6.5(f) of the Code provides that safe working control measures include ensuring that a person or anything held by a person, or attached to the person, coming closer than 4 metres may require the erection of a hoarding on the external face of the scaffolding. Erection of Block B Scaffold 29. Block B was a two-storey premise of approximately 105m floor space. It was approximately 7m high at the north gutter line and around 8m high at the south ridgeline. It was situated between Block A (north) and Block C (south), approximately 4m from each. Block B is approximately 6m from Captain Cook Drive to the East and approximately 6m to the corner of Fenton Ave. 30. On 17 October 2007, Solidscaff erected the scaffold on Block B. 31. Block B was enclosed by perimeter scaffolding on the north, south, east and west sides. The first lift bays were at approximately 3m in height. The top bays were approximately 5.5m from the grade. The north and east faces had hand rails which were situated 1m above the top bays at approximately 6.5m. Several standards rose an additional 1.2m above the handrail (reaching approximately 7.7m from the grade). On the north side, top level, the scaffold was 6 bays long. 32. The power lines ran over the scaffolding at Block B, intersecting with it at the 1 st bay end point on the east (2 nd standard at 1.787m from the north-east corner standard) and the 4 th standard to the south (4.8m south from the north east corner standard). 33. The distance between the overheard power lines and the second standard on the eastern face of the scaffold on Block B (being the highest point on the scaffold) was 2.9m. 34. Upon completion of the scaffold Solidscaff/Waco gave Jacaranda a Scaffold Inspection Report. The report stated that the scaffold had passed an inspection, which included consideration of AS/NZS4576, and that it was safe to use. Annexed to this document and marked "Annexure A" is a true copy of Waco Kwikform Limited Scaffold Inspection Report (Inspection No. 21804) dated 17 October 2007. 35. However, the employees of Solidscaff had not ensured that the scaffold was compliant with AS/NZS4576 in that it was did not allow a safe working distance of 4m from the overhead power lines. Rather than accurately measuring the distance from the power lines, the scaffolders relied on an estimate based on sight alone. 36. No warning signs were placed on the scaffold alerting workers to the presence or location of the overhead power lines. Incident 37. As at 12 November 2007, Block B was nearing structural completion. The roof and guttering (without downpipes) had been installed. Brickwork was finished or nearing completion. Windows, frames and glass panes were installed. 38. As at 12 November 2007, the power lines which ran over the scaffolding at Block B had not been moved or de-energised. 39. At approximately 7:00am on 12 November 2007 the rendering subcontractors - Mr Al Khaled, Hussein Al-Jaboore, and Gary Cook - started work on Block A. Tony Palmer later instructed them to start work on Block B. 40. They commenced working on the western wall of Block B. By approximately 3:00pm, the rendering subcontractors had completed rendering the wall on the western side of the Block B. 41. Shortly after 3:00pm Darren Bunney arrived on site. Immediately prior to the incident Hussein Al-Jaboore was cleaning tools. Mr Cook was rendering and Mr Bunney was cleaning windows. Mr Al-Khaled proceeded up a set of stairs to the top level of the scaffold situated at the north-eastern corner of Block B. The scaffold at this level was approximately roof height. Mr Al-Khaled said that someone has passed a length of aluminium straight edge to him, which he was preparing to place on the corner of the wall of the building. 42. The aluminium straight edge was approximately six metres long. The purpose of using the straight edge was to make sure that the edge of the building that was being rendered was straight. 43. Mr Al Khaled has stated that immediately prior to the incident he was not aware that there were high voltage overhead power lines in close proximity to the scaffold at Block B. Mr Al-Jaboore stated that he was aware that there were high voltage overhead powerlines in closed proximity to the building at Block B, as they were very visible. Mr Cook stated he was aware of the overhead power lines before the incident happened. Mr Bunney stated that he was not aware of the overhead powerlines in close proximity to the building as it was his first day working on that block. 44. At approximately 3:45pm, Mr Al Khaled lifted the straight edge in order to place it between the wall and the scaffold. In doing so, the straight edge struck the overhead power lines and Mr Al Khaled received a severe electric shock. 45. At the time of the incident, Darren Bunney was working underneath the scaffold on the western side of Block B cleaning cement render off the windows. Darren Bunney said that he "got a flash" which threw his tool out of his hand. In response, Darren Bunney called out to Gary Cook as he thought that he was working above him on the scaffold. 46. Darren Bunney proceeded to call out to Hussein Al-Jaboore and Mr Al Khaled. Immediately, he heard a voice which he recognised as Mr Al Khaled saying "Allah Allah." 47. Darren Bunney proceeded to run up the stairs and saw the Mr Al Khaled lying with his feet dangling over the scaffold at the far end of the eave. 48. Darren Bunney yelled for someone to call an ambulance. Gary Cook called the ambulance, climbed up the stairs and handed the telephone back to Darren Bunney who spoke to the operator. 49. Darren Bunney continued to attend to the injured person with the assistance of Hussein Al-Jaboore. He then called Anthony Palmer and requested that he attend the premises immediately. 50. An ambulance arrived at the premises and Mr Al Khaled was transported to St George Hospital. Mr Al Khaled was then airlifted to Concord Hospital. Mr Al Khaled remained in Concord Hospital Burns Unit for two and a half weeks and was discharged on 26 November 2007. 51. As a result of the electric shock Mr Al Khaled suffered burn injuries to 35% of his body. Work Method prior to the incident 52. At the time of the incident, Neatrule had in place an informal system by which information was communicated verbally amongst the rendering subcontractors regarding the performance of tasks. It was the usual practice of Neatrule for its rendering subcontractors to work from the middle level of the scaffold. They would use the hop up on that level to reach the top of the wall whilst rendering. It was also usual practice for the straight edge to be placed in to position from the middle level. 53. Neatrule undertook a basic risk assessment in relation to cement rendering works at the site; however the assessment did not consider the risk of working on scaffold in close proximity to overhead power lines. 54. Neatrule did not have a written SWMS in place for the cement rendering works being undertaken at the premises. 55. Further, Neatrule did not request that its rendering subcontractors provide it with SWMS's. 56. Mr Al Khaled said he was not shown what to do by Mr Bunney prior to commencing work at the site on 12 November 2007. Mr Al Khaled said "Darren [Bunney] takes his instructions from the builder where work is ready to render and instructs me what to do. I use my experience and knowledge to do it." Mr Al-Jaboore and Mr Cook both said they did not participate in any toolbox or safety talk at the site. Mr Cook said he received a site specific induction from Jacaranda. Investigation 57. On 12 November 2007 Inspector Derek Pryor attended the site in response to an incident notification. Inspector Pryor undertook an inspection and made observations contained in the Factual Inspection Report dated 3 December 2007, of true copy of which is annexed to this document and marked "Annexure B." 58. Inspector Prior took a number of photographs and bunted off the incident area for further investigation. Annexed to this document and marked "Annexure C" are seven coloured photographs numbered 969-5, 969-6, 969-7, 969-8, 969-10, 969-11, and 969-12. 59. On 15 November 2007 Inspector Prior returned to the site and took a number of measurements. Using a Leica Disto A3 (serial A299) laser measurement device Inspector Pryor measured the distance between the overheard power lines and the second standard on the eastern face (being the highest point on the scaffold) as being 2.9m. 60. Inspector Pryor issued Jacaranda two Prohibition Notices (No 170562 and No 170564), which directed Jacaranda to: (a) immediately cease work on scaffold Block B; (b) in consultation with WorkCover appoint a scaffolder to rectify the scaffold to meet AS1576; and (c) liaise with Energy Australia and develop an agreement regarding the management of the 33,000 volt power lines around the site. Annexed to this document and marked "Annexure D" are true copies of the Prohibition Notices. Work Method after the incident 61. Following the incident Neatrule employed safety consultants, Safety Culture to assist them in preparing more detailed and site specific SWMSs for cement rendering than had been previously used by Neatrule. Criminal History 62. Neatrule has no prior convictions. Annexed to this document and marked "Annexure E" is a record of prior convictions.