Inspector Vierow v Blue Water Boating Pty Ltd

SOLICITOR Moray & Agnew SYDNEY.

LEGAL REPRESENTATIVES: DEFENDANT Mr D R Sibtain of counsel

SOLICITOR Gadens Lawyers SYDNEY.

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: PETERSON J DATE: 8 AUGUST 2001

INSPECTOR MAURICE VIEROW v BLUE WATER BOATING PTY LIMITED

Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT

1 The defendant, Blue Water Boating Pty Limited, is subject to a charge that it breached s15(1) of the Occupational Health and Safety Act 1983 ('the Act') in relation to an accident which occurred on 24 September 1998 at the Olympic Village construction site at Homebush. The same facts have given rise to the taking out of four summons prosecutions by the WorkCover Authority, the culmination of which was an agreed form of amended prosecution in this matter and an application for leave to withdraw the remaining three prosecutions, which application was granted. The defendant has entered a plea of guilty in this, the remaining matter.

2 The amended summons charges the defendant with an offence against s15(1) of the Act in failing to provide and maintain a system for the erection of brickwork at the site that was safe and without risks to health and failing to maintain plant, that is scaffolding used in the erection of brickwork at the site, in a condition that was safe and without risk to health. An agreed statement of facts was tendered which records the following:

At all relevant times, the Prosecutor was an Inspector duly appointed and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in the within matter.

At all material times the Defendant, BLUE WATER BOATING PTY LIMITED (ACN 075 847 139) was a company duly incorporated with its registered office at C/- Berger Piepers, 286 High Street, Penrith 2750 in the State of New South Wales (the Defendant).

At all materials times the Defendant was an employer.

At all material times the Defendant employed John Francis Mahon, also known as "Thomas Pascoe", (the worker)

The worker was employed as a qualified scaffolder.

At all material times the Defendant had contracted with Newington Homes Pty Limited to erect brickwork and to erect and dismantle scaffolding as required at a construction site known as the Olympic Village, Newington Estate, Collector Road, Silverwater (the site).

The Defendant had prior to 24 September 1998 erected scaffolding in front of the building structure under construction to enable the Defendant's employees to obtain access to the first and second levels.

During a site inspection on 28 August 1998 Senior Inspector Pearson attended Precinct 2A of the site and spoke to Peter Cree, Foreman and Company Safety Representative. Inspector Pearson brought to Mr Cree's attention the need to ensure bricks stacked on scaffold be protected against falling from the scaffold by means of brick guards.

At all material times on 24 September 1998 the Defendant was carrying out work at the site.

This work involved preparation and erection/laying of brickwork to lots 2401, 2402 and 2403 at Precinct 2E at the site.

11 The Defendant had loaded a stack of bricks onto the first level scaffold platform adjacent to lot 2403

The scaffold platform upon which the stack of bricks adjacent to lot 2403 was placed was approximately 2.53 metres above ground level.

The scaffold platform was not a loading bay or designated loading platform.

At approximately 10am on 24 September 1998 the worker was on the ground level adjacent to the scaffolding next to lot 2403.

His back was to the scaffolding and he was engaged in reaching forward into a steel basket which contained scaffold fittings when bricks fell from the scaffolding and struck him on the head and back (the incident)

The worker received fatal injuries as a result of the incident.

The scaffolding adjacent to lot 2403 upon which the bricks were placed by the defendant did not comply with AS/NZS 1576.1:1995 section 3.5.1 in that it did not have in place at the time of the incident edge protection in the form of guardrailings and toeboards or mesh screens incorporating kickplates to prevent the bricks falling a distance of 2 metres or more from the scaffolding platform.

At all material times on and prior to the incident the scaffolding as erected by the defendant adjacent to lot 2403 at the site did not comply with AS/NZS 1576.1:1995 section 3.5.6 in that at the time of the incident there was no additional protection provided in the form of brick guards when it was intended for bricks to be deposited on the platform and there was a likelihood of such bricks falling.

The failure by the Defendant to provide scaffolding in accordance with the requirements of AS/NZS 1576.1:1995 was in contravention of Regulation 86(1A) of the Construction Safety Regulations, 1950.

At all material times on 24 September 1998 the Defendant contravened regulation 73(6) of the Construction Safety Regulations, 1950 in that it failed to provide overhead protection above where the worker was working when there was a likelihood of him being injured by objects, to wit bricks, falling from above and onto him.

3 The defendant's evidentiary case was constituted by the evidence of Peter William Cree, the foreman employed on site by the defendant at the time of the accident.

4 The evidence establishes that the defendant was engaged as a subcontractor to the builder of the Olympic Village development, Newington Homes Pty Ltd, to provide brickwork services and to erect and dismantle scaffolding provided by the builder.

5 New employees on site were required to attend an induction conducted by the Mirvac Lend-Lease Village Consortium, which included safety matters. There was also a site specific induction for the Olympic Village run by Newington Homes. This went for several hours and covered a range of matters. Demonstrations were given, videos were shown and employees signed off on the process. Each was given a document setting out all of the details discussed in the induction.

6 Mr Cree testified that he also conducted a brief induction on behalf of the defendant. He read to new employees a written safety policy, a copy of which was in evidence. It dealt with safety generally and in certain specific respects but did not deal with the circumstances the subject of this charge.

7 The deceased employee was a scaffolder engaged in erecting scaffolding around two-storey housing which was in the process of having its external brick walls laid. The method employed was to erect scaffolding approximately 2.53 metres high, which contained steel platforms upon which the bricks were stored and from which the bricklayers performed their work on the upper storey. Mr Cree was involved in operating a large forklift, known as a Manitou, to lift pallets of bricks to one of the steel platforms at 2.53 metres height. Steel wire mesh guards which would normally form the safety fencing on the upper stage were removed so as to permit the forklift to lift the bricks onto the stage. An employee, John Francis Mahon, also known as Thomas Pascoe was working in the vicinity and received fatal injuries when bricks upon the upper stage fell therefrom, striking him on the head and back.

8 There was situated alongside the scaffolding on which bricks had been placed on the upper stage, a steel wire basket containing scaffolding fittings. Mr Cree deposed that he had instructed the deceased employee to refrain from using that basket while the loading of bricks was being undertaken. Another basket of such fittings was available to Mr Mahon, although it appears that it may have been located further away from his work point.

9 Mr Cree had been working in the immediate vicinity but found that his mobile phone was constantly ringing and, when answered, dropping out. He told the workers in the vicinity that he was going to put his mobile on the recharger and that he would be absent for a few minutes. While he was absent the accident occurred when Mr Mahon accessed the steel basket containing scaffolding fittings.

10 Mr Cree's evidence included the following in cross-examination: Q. So far as relying on the scaffolders you were able to rely on the scaffolder and the deceased to put the proper measures in place? A. That's correct.

Q. But the problem with this particular matter was that other people were pulling them down? A. That was was an ongoing thing. That was happening all the time.

Q. That's what you say, isn't it, Mr Cree, in that same paragraph that you seemed to be yelling constantly at the workers to replace the guards and hand rails? A. That's correct.

Q. And you had to repeat your instructions? A. Many times a day.

Q. Mr Cree you actually realised the system wasn't working, didn't you? A. This applies to just about every building site in the country.

Q. But in relation to this particular building site you had a problem on site, didn't you? A. No more than any other building site, I don't think, no.

Q. Knowing that you had to remind them on numerous occasions, there were alternative measures you could have taken, weren't there? A. Not really.

Q. Mr Cree, you could have used a designated area specifically for the bricks, couldn't you? A. We did use them, yes.

Q. And there were two areas that were designated loading areas on this particular site in this particular area, weren't there? A. That's correct.

Q. And you could have also ensued (sic) the area below was clear of all workmen and things that workmen needed, couldn't you? A. Well, while I was there it was clear because the men who were servicing the scaffold, and it was only when I went down to charge my phone, that I didn't see anybody go there. But apart from that, no, they couldn't have got near the loading bay while I was there and the men were there.

11 Later, this evidence flowed: Q. Wouldn't it be a better system to not rely on you telling people, or people deciding to get material from other areas but to ensure the system itself was safe so there wasn't an element of risk by people choosing to do something else? A. I think you will always find that with men on the building site that you will always get somebody straying one way or another. Just a constant thing you were watching them the whole time, advising, looking out for them.

Q. To have a basket of scaffolding material on site directly under the scaffolding, that's a temptation in itself. That's an accident waiting to happen?

A. No. I'd say everyone was advised not to go to that area and everyone knew I was working in that area. And this was also common knowledge that they weren't allowed near the manitau as it was loading or unloading, so it was a fairly common knowledge not to go to that area.

12 Later in evidence Mr Cree asserted that prior to leaving to connect his mobile phone for recharging: A. I quickly told the boys to put the mesh guard and everything back on and I was just going to dart down to the shed to put my phone on charge. I would be back. I parked and ran down to the shed. As far as I knew when I left that was what was happening, they were my orders to them, to put the mesh guards and everything back on. I don't recall if they did or not, but they were the orders I would have given for sure.

Q. But you actually say in paragraph 6 you can not be certain you did remind them to put the hand rails and guards back on after the last load of bricks after you went to charge your phone? A. That's right. Because I can't imagine that I would actually leave the work area without telling them that because that was done on a daily basis, 20, 30 times a day. For me to forget that I can't explain that at all. It's very unlikely.

13 Mr Cree's evidence about constantly reminding staff to replace the mesh guards and footboards on scaffolding landings was relied on by the defendant as a form of direct supervision. This was a significant part of what was submitted by counsel for the defendant as evidencing its direct intervention and supervision in the interests of safety.

14 As against that evidence, the agreed facts record that on 28 August 1998, approximately one month before the accident here, Senior Inspector Pearson of the WorkCover Authority spoke to Mr Cree about the need to ensure bricks stacked on scaffold be protected against falling from the scaffold by means of brick guards.

15 The defendant has no prior convictions. It is no longer engaged in the business it was conducting at the time of the accident or, indeed, trading at all. The summonses were taken out on 13 September 2000, the matter was listed for mention on 19 October with particulars to be requested by 26 October and answered by 9 November. The matter was then mentioned on 18 December 2000 at which time a plea of guilty was indicated. It was then allocated for hearing.

16 The prosecutor's submission was that the objective features of the case call for the imposition of a substantial penalty. The matters relied on were:

(a) The maximum penalty for a corporation prescribed by Parliament for the offence at the time it was committed was $550,000.

(c) The defendant's failure to provide and maintain a safe system of work and inform itself of safe working.

(d) The nature of the offence in that it was readily foreseeable and had been previously brought to the attention of the defendant through its foreman.

(e) The nature of the offence in that there were simple steps to remedy the defective system of work and plant.

(f) The nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety.

17 These matters were developed and I mention particularly the submission that it will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible (per Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476).

18 As to the subjective features, it was submitted that the defendant is entitled to have taken into account, as mitigating the objective seriousness of the offence, its plea of guilty (R v Winchester (1992) 58 A.Crim.R 345 at 350) and that it was appropriate to apply the guideline judgment in R v Thompson; R v Houlton, [2000] NSWCCA 309: applied in this Commission in, for example, WorkCover Authority of NSW (Inspector Sheppard) v The State Rail Authority of NSW, [2000] NSWIRComm 179 at paragraph 40.

19 The prosecutor submitted that the plea has been entered by the defendant in circumstances where the prosecution case is strong and the extent of leniency to be afforded by way of discount on sentence may have much less weight: Winchester at 350; see also R v Ellis (1986) 6 NSWLR 603 at 604.

20 For the defendant, counsel submitted that there was nothing that could be said by the defendant as to the objective seriousness of the offence "The incident in question resulted in the death of a worker and for that reason the defendant accepts that it is a most serious case". Counsel went on to submit that in the imposition of penalty the court should consider the objective circumstances of the system that was in place and the plant that was in place, and the way that system and that plant broke down. It was submitted that while the multiple instructions regarding safety which were given did not deal with this matter expressly, the defendant took a more direct approach.

21 It was submitted that Mr Cree was reinforcing on a daily basis the importance of maintaining mesh guards on elevated platforms. It was submitted that it cannot be said the defendant had not put in place a system of vigilant supervision. What can be said is that the system did break down. This is at the other end of the scale from a defendant who approaches the system of occupational safety with an attitude of reckless indifference. The point was also made that the scaffolding system did conform with Australian standards although at the time of the accident the absence of the mesh guard caused it not to be compliant.

22 I am satisfied in this case that the defendant failed to provide and to maintain plant, in the form of scaffolding, which was safe and without risk to health. I accept that the scaffolding was, from time to time, in a proper condition; the provision of mesh guards to prevent bricks from falling was compliant with the requirements of the relevant Australian standard but the removal of the guards for the purpose of loading bricks onto the scaffolding with the Manitou forklift was the first step in the creation of the relevant risk. The second step in that respect was the location of steel bins under the scaffolding in which were contained the components for use by scaffolders. The combination of their ability to access those bins while bricks loaded on the scaffolding above were unprotected by mesh guards constituted the relevant risk. That the defendant, through its foreman, Mr Cree, depended upon supervision to ensure that the mesh guards were re-installed after brick-loading, created the possibility that due to Mr Cree's absence, the system could fail and expose a worker to risk. This was capable of being a safe system of work only if every element of it operated successfully. The withdrawal of Mr Cree for a short time created the opportunity for the system's failure. Where a system such as this depends upon each element combining to ensure safety, where some of those elements are contingent on other events, the system seems to me to be one which is not capable of description as a safe system of work.

23 I accept here that the defendant was properly motivated and took a reasonable approach to ensuring that employees were subjected to safety instruction. However, the consequences of the failure in this case were, as the defendant has accepted, serious indeed. The tragic death of the worker is an indicator of the seriousness of the failure (see Haynes v C.I.& D. Manufacturing (1994) 60 IR 149 at 159). Taking into account the objective seriousness of the case, I consider that an appropriate penalty in this matter, in which the maximum penalty is $550,000.00, would be $125,000.00.

24 The indication of a plea of guilty was not given at the earliest opportunity, but at the third callover of the four original matters. The question arises as to the level of discount which should be afforded the defendant in the circumstance that it was initially facing four summonses, but pleaded later to only one, the others being withdrawn. It is not clear whether these multiple charges, taken out in September 2000, were brought as a sort of hangover from the consequences of the conclusion of the majority in Boral Gas (N.S.W.) Pty. Ltd v Magill, (1995) 58 IR 363 at 389 per Hill J. and at 417 per Hungerford J, which caused the issuing of multiple summonses in relation to the same set of facts so as to avoid the risk that a single summons would be held bad for duplicity. That approach was made unnecessary by the amendment of the Act to permit multiple contraventions of s.15, 16, 17, or 18 arising out of the same circumstances to be charged as a single offence: s.49A, operative from 1 November, 1997. In any event, where a defendant is charged four times over with different statutory offences arising from the same facts, then, assuming all charges are separately sustainable, the prospects for the defendant are serious indeed. In this case the theoretical maximum penalty, subject to the principle of totality, would have been $2.2 million. That a plea of guilty is not entered at the earliest opportunity in that context should not, in my opinion, cause a loss of credit for a later plea, entered knowing that three of the four charges would not be proceeded with. In my opinion, the entry of the plea early in those changed circumstances may be accepted as an early plea for the purpose of a consideration of the discount to be given for utilitarian value.

25 The discount for a plea of guilty is in the range of 15 percent to 25 percent of penalty, the position in that range being determined primarily by the timing of the plea (R v Thompson; R v Houlton per Spigelman CJ at par. 160). There being a very strong case on the prosecution's part, I do not consider contrition to be an element of significance in this case, such as to justify a greater discount than 25 percent (see Regina v Carter [2001] NSWCCA 245, 27 June 2001 per Howie J at par. 13). Similarly, there are no other mitigating aspects of significance. Accordingly I would give a discount of 25 percent based on the utilitarian value of the plea of guilty.

26 I convict the defendant of the offence with which it is charged and impose a penalty of $93,750 with a moiety of penalty and an order for costs as agreed or assessed in favour of the prosecutor.

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