1 On 8 October 2004, Garry Owen Wilson was the sole director of Wilson Group Holdings Pty Ltd a company involved in the demolition, excavation and re-cycling business. On that day, the company was carrying out demolition work at Blackhill Road, Blackhill. The work involved demolition of a number of farm buildings and was quite extensive.
2 On this particular day, the company engaged Greg Babbage as a labourer. Craig Nolan was also employed as a labourer to assist in the demolition work. The company employed Clinton Roberts as supervisor of the works and to assist also in the demolition work being undertaken by the company at this site.
3 During the morning of 8 October 2004, Mr Babbage and Mr Nolan were working on the roof of a shed when Mr Babbage suddenly fell through the sloping roof, falling a distance in excess of 4.5 metres. Mr Babbage was severely injured, breaking several vertebrae in his back and sustaining severe head injuries requiring extensive hospitalisation, numerous operations and occupational therapy. As a result of the fall Mr Babbage was rendered a paraplegic.
4 The accident was investigated by the WorkCover Authority after which it proposed to commence proceedings against the company alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000, and also to proceed against Mr Wilson as the sole director and a person concerned in the management of the company for breach of the same section by operation of s 26(1) of the Act. In May 2005, orders were made winding up the company and appointing a liquidator. Having been satisfied as to the circumstances of the company, the prosecutor did not proceed against the company but proceedings were pressed against Mr Wilson.
5 When the matter was first returned to Court for the taking of a plea and the making of appropriate directions, Mr Wilson appeared in person and an adjournment was granted. On the third occasion that the matter was listed, Mr Wilson was represented by counsel and a plea of guilty was entered. This judgment deals with the evidence and submissions on penalty.
6 The evidence for the prosecutor was comprised of a lengthy Statement of Agreed Facts together with a number of annexures dealing with work method statements and a site safety induction register. A number of photographs were tendered showing the general nature of the site and the particular area where Mr Babbage fell, together with a photograph of a harness and a rope with fittings attached. A WorkCover document confirmed that neither the company nor Mr Wilson had prior convictions. The Agreed Statement of Facts appears as an annexure to this judgment
7 Apart from tendering some day sheets indicating the nature of the system of work, Mr Wilson gave oral evidence concerning the business, his reliance on the site supervisor, Mr Roberts, and evidence as to his current employment and personal circumstances.
8 Mr Wilson said that the method of removing corrugated metal roof sheeting by removing most of the screws and leaving one row of screws was not a system of work performed on his instructions because of the danger presented by the possibility of high winds getting underneath the sheet metal. Mr Wilson had left this part of the demolition task to Mr Roberts who was the site supervisor with qualifications as a rigger, a dogger and a demolition supervisor as well as having his safety green card. In relation to the photographs of the safety harness, Mr Wilson said that he had brought this equipment to the site with each harness in a bag together with an absorption lanyard and a tie-off strap. The harness being used by Mr Babbage as shown in the photographs did not have an absorption lanyard and in Mr Wilson's view, it was not hooked up properly. He had given no instructions for persons working on this site to be hooked up in the way depicted in the photographs. The harness kits when brought to the site were complete as he described them and he had checked each such kit used at the site. He said he had relied on Mr Roberts to give training on the harness and had worked with Mr Roberts at three major sites where he was the supervisor on these sites. Mr Wilson had seen Mr Roberts working with harnesses and he appeared to be competent. He had seen Mr Roberts involved in toolbox meetings and he relied on Mr Roberts' competence and regarded him as more than competent and able to perform the task at this site. Mr Wilson had observed Mr Roberts perform a similar task at other sites and had no problem with his method of work.
9 Mr Wilson had not seen the ladder photographed at the site that was apparently used to gain access to the roof. He had not seen employees at the site using this ladder and if he had, he would have asked why they were not using the elevated scissor platform.
10 When he arrived at the site on the day of the accident, Mr Wilson did not see the ladder. He saw the scissors platform but was not aware that anyone was using it. He had obtained everything for the site required by Mr Roberts and had brought the scissors platform to the site as he believed it was essential to use it to get onto the roof to perform the demolition task. He believed that the lifting platform was being used by the workers on site.
11 An induction register was kept for the purposes of the business and to clarify the qualifications of employees when they came on site. The register was kept by the person in charge of the site that day. One example of the register had notations showing that persons had been sent from the site and had not been given a start either because had not brought evidence of their qualifications and green card, or they had no such qualifications. Mr Wilson expected the same approach to be continued by Mr Roberts.
12 Prior to this job starting, a work method statement had been created by Mr Wilson which he had not amended or varied after the accident. After the accident, he produced a further work method statement at the request of the WorkCover Authority but he maintained his satisfaction with the effectiveness of the document he had originally produced. That document had its origins in the requirements of a well known builder and he regarded the document as appropriate and effective.
13 Following the accident, the WorkCover Authority issued a stop work order and Mr Wilson abided by its terms. Ultimately, there were only two more days of work performed on the shed although there was other work to be performed. The company was then shut out of the contract and performed no more work at the site. Mr Wilson said that, as a result of this action, the company was placed in liquidation with debts amounting to approximately $100,000. The company lost approximately $200,000 in anticipated profits and ultimately he had lost the company and its business.
14 Mr Wilson had been at the site on average twice a week over a period of 14 weeks. During that time, he had not observed any unsafe working practices and he did not see any work that was not being performed in accordance with the work statement he had produced for the site. He continued in his belief that his original work statement was safe if it was followed.
15 Since the accident, Mr Wilson was no longer working in the construction industry and was now engaged as a heavy tow truck operator. He feared that his licence to perform this work would be suspended if he was convicted of an offence, including the offence to which he had pleaded guilty. If that occurred, he would have to get another job, although he did not regard himself as having other options since he had no other qualifications. In his current employment, Mr Wilson was earning $1,500 net per week although working in excess of 70 hours per week. He had been married for 16 years, had four dependent children and his wife did not work.
16 As to assets, Mr Wilson said that he had no personal assets and everything had been sold to satisfy the debts of the company. His wife had owned a house when they were married and had bought a new house by selling the previous house. All that property was in her name and she regarded it as her property. There were other debts being serviced at the rate of approximately $600 per week and Mr Wilson was paying the mortgage on the house of approximately $1,200 per month.
DELIBERATION
17 It was submitted by the prosecutor that this was a serious offence carrying a maximum penalty of $55,000. The system of using the harness meant that ,in order to move from place to place on the roof, the rope had to be untied leaving the employee wearing the harness vulnerable to a fall. In addition the system allowed up to 6 metres of rope to be used when there was a risk of falling 4.5 to 4.9 metres. That length of rope used in that manner rendered the safety harness ineffective in preventing or restraining a fall. In addition the Statement of Agreed Facts showed that Mr Wilson had demonstrated to Mr Roberts how to secure the lanyard and rope which was the system, in fact, used at the site and which was shown to be defective. It was clear from the photographs that Mr Babbage was found on the ground with the entire length of rope and therefore it had not been secured on the roof as was envisaged by the written system. In addition, Mr Babbage had not been trained in the use of the harness. The work method statements required harnesses to be kept connected, however, the actual system left them from time to time unattached and of no practical utility. It was this combination of circumstances, it was submitted, that rendered the breach a serious offence which was readily foreseeable and easily remedied.
18 Mr Wilson's reliance on the expertise of Mr Roberts was misplaced and he clearly acted in disregard of the work method statement in a way not corrected by Mr Wilson.
19 I agree with the thrust of these submissions for the prosecutor. The breach to which Mr Wilson has pleaded guilty accepted that the company failed to: provide a system of work for working at heights that was safe and without risk to the health and safety of its employees; conduct any, or adequate, risk assessment to ensure the health, safety and welfare of employees whilst working at heights; provide any or adequate information to employees; to provide any or adequate instruction and training to employees; to provide any or adequate supervision to its employees; to ensure that the employees had safe access to and egress from their place of work and, in particular, the roof of the shed; ensure that any plant provided for use by the employees at work was safe; ensure that safety harnesses provided for use by the employees were connected to an anchorage at all times and, in particular, whilst working at heights and while the employees had access to and egress from the roof of the shed; to provide employees any or adequate health and safety induction training in the use of safety harnesses and ensure that the safety harness lanyards, provided for use by the employees at work, was of a length sufficient to ensure the safety of employees while working at heights. Considering the nature of the work, these were multiple failures that presented very serious risks to the workforce engaged in this demolition task. The injury received by Mr Babbage was severe and provides some evidence of the nature of the risk - it is also possible that he could have lost his life. All of the circumstances referred to above mark this accident as constituting a serious breach of the Act.
20 The building and construction industry is, by its very nature, an industry where workplace risks abound and where employees and employers are required to be vigilant in ensuring not only the existence of safe working systems but their enforcement. In the present case, while there were systems that addressed safe working methods, the evidence strongly points to a conclusion that the system was not effectively enforced. General deterrence will necessarily pay a significant part in setting the penalty for this breach.
21 The issue of specific deterrence requires some closer examination in this particular case. I accept the thrust of Mr Wilson's evidence to be that the circumstances surrounding the accident to Mr Babbage and his exclusion from the remainder of the contract not only resulted in the failure of the company but enforced his view that there was no place in that industry for him in the future and that his best employment options would be continuing as a heavy tow truck operator. Having regard to the evidence as to his financial position, I am satisfied that for the foreseeable future, if at all, it is highly unlikely that Mr Wilson will again be engaged in the building and construction industry in any capacity and, in particular, as a director engaged in the management of a company performing work in that industry. Specific deterrence will therefore bear little on the assessment of a penalty for this breach.
22 The oral evidence of the financial position of Mr Wilson was not supported by any financial records or professional report: that position may also reflect his meagre means. The Court is aware that at least one adjournment was granted while Mr Wilson made enquiries as to what legal representation was available to him. The provisions of the Fines Act 1996, nevertheless, require the Court to take into consideration the evidence that is brought forward and it is significant that the prosecutor did not cross-examine Mr Wilson on his financial situation. I have no reason to doubt the general thrust of this evidence, but I also accept that this material should not operate so as to detract from the objective seriousness of the offence. While the evidence does indicate the meagre financial means of Mr Wilson, it does not establish that any fine would be crushing in its nature and effect. The circumstances of Mr Wilson, nevertheless, will be taken into consideration in the setting of a penalty.
23 In relation to subjective factors, both the company and Mr Wilson have no previous convictions indicating a good industrial record, although there was no evidence of the size of the company, its operations or for how long it had operated. I accept the guilty plea was entered at an early stage and there is no reason why Mr Wilson should not receive the full benefit of that plea and a discount of 25 per cent will be allowed on the penalty.
24 While much emphasis was placed by Mr Wilson on the expertise and experience of the site supervisor Mr Roberts, and the fact that there was a departure from the established safety system, those matters only operate, however, in a relatively minor way in affecting Mr Wilson's culpability. A number of Full Benches of this Court have pointed out that while these matters are relevant to culpability, the Act requires employers to be diligent in ensuring the safety of their employees and that those obligations were not diminished because of an error by an employee. It is only in this context that those matters heavily relied on by Mr Wilson will be considered in mitigating the penalty.
25 An application was made for Mr Wilson to be dealt with under the provisions of s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and that an order should be made discharging him on condition that he enter into a good behaviour bond for a term not exceeding two years. The primary reason advanced for the exercise of the discretion was that the statutory scheme governing the issuing of a licence for those engaged in the tow truck industry meant that any conviction placed Mr Wilson's employment at risk and left him with very little option for alternative work other than labouring and other unskilled or semi-skilled work. During a short adjournment, the parties were able to put before the Court the provisions of the Tow Truck Industry Act 1998. It appears from s 18(2) that a mandatory ground for refusing to grant an application for a licence includes the fact that an applicant has, within a period of 10 years before the application for the licence was made, been convicted or been found guilty with no conviction being recorded by a court in New South Wales but only in relation to an offence prescribed by the Regulations. Regulation 7 prescribed certain criminal behaviour but made no reference to the provisions of the Occupational Health and Safety Act 2000. It appears, therefore, that any conviction or bond imposed by this Court for a breach of s 8(1) of the Occupational Health and Safety Act 2000 will have no bearing in relation to the operation of s 18(2) of the Tow Truck Industry Act 1998. It was accepted that a licence was usually issued for one year and that the statutory scheme treated an application for renewal of a licence as raising the same considerations found in s 18(2) but, for the reasons already outlined, it appears that Mr Wilson is at no risk of having his licence renewal refused on that ground because of a conviction in these proceedings.
26 Counsel for Mr Wilson also pointed to the provisions of s 18(3) whereby a discretion could be exercised in the granting or renewal of a licence such that it may be refused if the applicant was a not a fit and proper person to hold such a licence. It was submitted that the conviction, or even a bond imposed by this Court, would raise Mr Wilson's fitness to remain within that industry. There was no evidence as to how this discretion had been exercised and whether convictions of this nature were considered in assessing the fitness of a person to have a licence renewed. Here, it was submitted that Mr Wilson should be left in the best possible position to retain his licence and that, in all the circumstances, it would be appropriate for the s 10 discretion to be exercised.
27 I accept that there are times when the combination of personal circumstances of a defendant might warrant the exercise of the s 10 discretion (see Inspector Cooper v Quik-Seal Pty Ltd and anor [2006] NSWIRComm 48). I am not satisfied that Mr Wilson is in serious danger of losing his current livelihood because of a conviction for this breach whether recorded or not. This offence involves no element of dishonesty and essentially arises from a failure to enforce a safe system of work including the system that was devised by Mr Wilson himself. This concern, together with his financial position such as is described in the evidence, in my view does not warrant the making of an order under s 10. While I accept the meagre financial means of Mr Wilson, any difficulty encountered in meeting the fine that will be imposed might appropriately be met by an application for time to pay and to pay the penalty by way of instalments. For those reasons the application for an order under s 10 is refused.
ORDERS
28 Having considered the variety of matters raised by the evidence and submissions, the Court makes the following orders:
1. The defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by operation of the provisions of s 26(1), a breach particularised in Matter No IRC 1207 of 2006 to which the defendant has pleaded guilty.
2. The defendant is fined the sum of $9,000 with half that sum to be paid to the prosecutor by way of moiety.
3. The defendant is to pay the costs of the prosecutor in a sum agreed or in the absence of agreement, as ordered by the Court.