Inspector Vince Castro v Supreme Poultry & Chickens Pty Ltd & Anor

Inspector Vince Castro v Supreme Poultry & Chickens Pty Ltd & Anor - [2005] NSWIRComm 386 - NSWIRComm 2005 case summary — Zoe

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1 Supreme Poultry & Chicken Pty Ltd (the first defendant) operated a poultry processing business. In about mid-August 2002, it was relocating its business from 590 Great Western Highway, Arndell Park to a new premises. This undertaking included the stripping and partial dismantling of buildings located on the old premises. Peter Charles Attard, (the second defendant), was the sole director of the first defendant. 2 On 15 August 2002, the second defendant and a number of employees of the first defendant were at the old premises and engaged in stripping and dismantling various structures belonging to the first defendant. At approximately 2pm, one such employee, Garry Ian Pickard, was with the second defendant on the roof of the freezer room located inside the factory at the old premises. This freezer room was somewhere between 2 and 2.5 metres high and surrounded on three sides by panelling 30 to 40 centimetres high. The roof of the freezer room was not fitted with a guard rail or any scaffolding around its perimeter. Nor were any other fall prevention devices provided to Mr Pickard. At some point another employee of the first defendant, Scott Becker noticed that the roof of the freezer room was sagging. He informed the second defendant who then advised Mr Pickard that they should both get off the roof. The roof then collapsed. The second defendant prevented himself from falling by grabbing the top of one of the freezer room's side walls. Mr Pickard fell from the roof to the ground. After the fall, he was unconscious for a short period and was conveyed by ambulance to Nepean Hospital. According to the Agreed Statement of Facts tendered into evidence by the prosecutor, Mr Pickard died on 19 August 2002 at Nepean Hospital as a result of an intra-cranial infection arising from complications related to the head injuries which he had sustained as a result of the fall. The charges 3 The first defendant has been charged with an offence under s8(1) of the Occupational Health & Safety Act 2000. The second defendant has been charged with an offence under s 8(1) and s 26(1) of the same Act. Pleas of guilty were indicated in relation to both charges by both defendants before his Honour Boland J on 30 August 2004 following service of the briefs of evidence. On 1 March 2005, the defendants formally entered pleas of guilty to the charges. The charge against the first defendant 4 The charge under s 8(1) of the Act against the first defendant alleges a failure on 15 August 2002 to ensure the health, safety and welfare at work of all its employees, in particular, Mr Pickard. The offence is said to have been committed at 590 Great Western Highway, Arndell Park, New South Wales (the old premises). The first defendant's failure is particularised in the application for order as a failure to provide a safe system of work with respect to the stripping of plant and equipment from buildings and the partial dismantling and demolition of buildings and other structures; and, the failure to provide necessary information, instruction, training and supervision in relation to the work being undertaken at the old premises on that day. 5 Further details of the failure to provide a safe system of work are set out in the application for order. Rather than attempting a summary of these further details, I will set them out fully below:

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(iii) a bundle of 23 photographs taken by the prosecutor of the old premises on 19 August 2002. 9 According to the agreed statement of facts, on the day of the offence, the first defendant's employees and the second defendant were in the process of stripping metal trusses and timber beams from the roof of the factory. These items were then transported across the roof of the freezer room which was inside the factory premises to the ground. The trusses were 20 feet long and the beams were approximately 5 metres long. 10 The agreed statement of facts reveals that the first defendant did not, prior to commencing the work, obtain advice as to whether the freezer roof could sustain the proposed loads and persons working on it who were using it as a work platform. Nor was a work method statement or work plan prepared by the first defendant with respect to the work to be performed. The employees engaged in the task on the day of the offence had not received any occupational health and safety induction training as required by Part 8.2 clauses 213 and 214 of the Occupational Health & Safety Regulations 2001 (the 2001 Regulations). The second defendant, who was supervising the work, was not qualified to supervise "demolition work". 11 The prosecutor also tendered at the sentence hearing an Australian Standard namely AS2601-1991 entitled "The Demolition of Structures". The relevance of the tender, the Court was informed, was to direct attention to the definitions of "demolition" in the 2001 Regulations and in the Standard, which definitions the prosecutor intended to submit, conformed to a description of the work being undertaken by Mr Pickard and other employees at the time of the offences. I note in passing here that the 2001 Regulation specifically provides that an employer must ensure that demolition work is carried out in accordance with AS2601-1991. 12 The Court was informed by Mr Cahill that neither defendant had any prior convictions. Defendants' evidence 13 The defendants, jointly represented by Mr Dooley, solicitor, relied on four affidavits. The first affidavit was sworn by the second defendant on 28 February 2005. In the affidavit, the second defendant describes himself as involved in the poultry processing industry. The first defendant was incorporated in 1994 or 1995. All employees of the first defendant, including Mr Pickard, underwent "on the job" training when they commenced employment. This "on the job" training according to the affidavit included safety-related matters such as:

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(vi) work in teams and gain an understanding of their role in the team. 14 In addition, the second defendant said he encouraged consultation and feedback among the employees. Also, prior to any task being carried out, discussions, he said, were held in order to settle on an appropriate work method. During those discussions, he gave detailed and specific instructions. He also endeavoured to be supervising on site at all times. 15 In relation to the relocation of the business to the new premises and the tasks being undertaken to facilitate that process, the second defendant said that he decided that he and other employees would assist in the removal of certain items for transportation to the new premises at Shanes Park. This entailed, for example, dismantling and removing some of the roofing over the freezer rooms. On 15 August 2002, the second defendant recalled that he and Mr Pickard were standing on top of the freezer room undoing bolts and passing trusses down to people standing below. Access to the roof had been gained by use of a stepladder. Shortly before he felt the roof sag he said to Mr Pickard "get down". Mr Pickard, however, wanted to continue working. The second defendant repeated the request to Mr Pickard a few times and was himself in the process of climbing down from the roof when it collapsed. He grabbed hold of the side wall. He turned around and saw Mr Pickard lying on top of the collapsed freezer. An ambulance was called and he followed it to Nepean Hospital and stayed with Mr Pickard for a while. He returned the following day on Saturday but Mr Pickard was sleeping. At some stage he said Mr Pickard developed an infection at the site of a cut on the head which was operated on but the operation was unsuccessful. Mr Pickard was placed on a life support system on Sunday which was switched off later that day. He passed away on Monday morning. 16 The second defendant also gave evidence in the sentencing hearing. He agreed that he was the sole director of the first defendant and that at the time of the offence he controlled and was responsible for the first defendant. The degree of control and responsibility extended to the work being undertaken at the old premises on the day of the offence. He also conceded that at the time, he and Mr Pickard commenced the task of dismantling the roof by means of utilising the roof of the freezer room as a work platform. He agreed that he did not undertake any risk assessment beforehand or employ anyone else to undertake such an assessment. He agreed that no steps had been taken to reinforce the freezer roof prior to the work being undertaken, and, that at that time, neither he, nor Mr Pickard, held any building trades qualifications. 17 The second defendant also said in both his affidavit and in his oral evidence that prior to the incident he had seen a number of people walking on the roof and he was unaware that there was any risk of the roof collapsing. 18 He also told the Court that Mr Pickard had been a close friend and that his death had deeply affected him. He had been unable to sleep and had attended counselling. He has remained good friends with Mr Pickard's wife and his sister, Sandra Russell, who also works for him, as does Ms Russell's husband, Stephen John Russell. Mr and Mrs Russell also swore affidavits on the defendants' behalf on 25 February 2005. In those affidavits, they confirmed their employment with the first defendant and the close relationship which had existed between the second defendant and Mr Pickard. Mr Russell also attested to a number of safety initiatives introduced by the second defendant, for example, the use of stainless steel troughs to catch the blood from slaughtered chickens so that the floors did not become slippery. Mr Russell also recounted an episode when the second defendant refused to allow a contractor to continue working until he used a safety harness. 19 The defendants also relied on an affidavit sworn by Louie Torre on 25 February 2005. The affidavit annexed a reference signed by Mr Torre. The reference detailed dealings between the first defendant and Mr Torre, the first defendant's external accountant, and, attested to the first defendant's dedication to safety practices during its eleven years of trading. Mr Torre also describes the second defendant as extremely hardworking and a person who prides himself on having a safe workplace and one who takes his role of employer very seriously. 20 In addition to the affidavits read in the defendants' cases on sentence, a letter written by Marian Skeers described the second defendant as one of the most safety conscious people she knew. Also tendered on behalf of the second defendant was a certificate in the second defendant's name dated 15 May 2003 certifying that the second defendant had fulfilled all the requirements for the course in OH&S Risk Management for Supervisors and Managers. 21 Documentation in relation to the first and second defendants' financial affairs was also tendered. The documentation consisted of financial accounts and tax returns of the first defendant for the years ended 30 June 2002, 2003 and 2004, as well as the second defendant's personal income tax returns also for the years ended 30 June 2002, 2003 and 2004. The records also indicated that the second defendant owns 100% of shares in the first defendant, and, property at 970 Mulgoa Road, Mulgoa with an estimated market value of $1.3 million. Consideration

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...the complete or partial dismantling of a building or structure by pre-planned and controlled methods or procedures. 27 Certainly that definition fits the activity being performed by the second defendant and Mr Pickard although without the added aspect of pre-planning and controlled methods or procedures. In my view the subject activity being performed fell squarely within the Standard and therefore within the 2001 Regulation. This in turn required the planning and implementation of an entire regime for the carrying out of the work so that any risks to the safety of the workers was minimised. Both the Standard and the Regulations shed light on what measures and procedures should have been implemented by the defendants and the obvious importance of ensuring safety in the context of what is widely regarded as a dangerous occupation. Clause 1.7 of the Standard headed "Planning and Execution" for example requires that before the commencement of any stripping and demolition work an initial investigation must be undertaken of the structure and the site. In relation to the site for example preparation of a work plan is required. This work plan under the Standard must include comprehensive and detailed information in relation to a number of matters including a description of the proposed method of demolition, the type of equipment to be used, and, a written statement by a "competent person" that the proposals contained in the work plan comply with the safety requirements. "Competent person" is defined in the Standard as, "a person suitably qualified, adequately trained and appropriately experienced for the particular class or kind of work specified". The Standard also requires that at all times demolition work shall be directly supervised by a competent person (clause 2.1.1). 28 These detailed and comprehensive requirements underscore the importance and necessity of ensuring the safety of workers in the context of performing work in an inherently dangerous industry. The requirements stand in stark contrast to the total absence of preparations and safeguards of any kind evident in the defendants' approach to the task of stripping and dismantling the factory roof on the day of the offence. 29 The failure of the first defendant to identify the subject activity as outside its area of expertise and its failure to have in place any meaningful systems of work created an obvious risk to safety. These factors all lead to the conclusion that the offences are serious. The effect on the risk to safety where there exists a lack of expertise and experience in relation to the performance of a particular work related activity was recently the subject of comment by Staff J in Inspector Frank Glass v BT Engineering Pty Ltd as Trustee of the Bruce Family Trust [2004] NSWIRComm 245 where at [33], [34] his Honour said:

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