Documents
43. The following supporting documentation is annexed:
A) 11 Colour photographs taken by Inspector Ron Spence and Inspector David Webster on 10 July 2006 (11 pages).
B) Factual Inspection report of Inspector David Webster dated 11 July 2006 (2 pages).
C) Proline Work Method Statement - incomplete and undated (2 pages).
D) Workcover prior convictions certificate (1 page).
5 An affidavit of the defendant also became evidence in the proceedings.
6 The defendant has worked since the age of 16 as an apprentice plumber and a bricklayer. He commenced working as a concreting labourer in 1997 and began trading on his own account using the company Proline Pumping Pty Ltd for this purpose from November 2001 until 10 July 2006. In this time, neither he nor any of the employees of the business had ever suffered a workplace accident.
7 The defendant conceded that apart from checking the experience of employees and ensuring that they were inducted onto a work site, he did not use work methods statements or any other similar procedures for instruction and training, apart from on the job training, prior to the incident. He described his reaction to the incident, the concern that he had for Mr Brewster and the care taken for Mr Brewster after the accident all of which led to a loss of enthusiasm for running the business, which he sold in November 2006. At that stage, no proceedings had been instituted by the prosecutor.
8 In March 2007, the defendant commenced a new business in the same industry. He says that he is now much more conscious of his occupational health and safety obligations and the requirements imposed on his business and annexed to his affidavit a work methods statement. That statement was said by the prosecutor to be inadequate in a number of respects and the defendant has undertaken to remedy those defects.
9 Since the incident, the defendant gave evidence that on at least two occasions he has refused to undertake jobs where there were insufficient or no scaffolding or guardrails.
10 The commencement point for the assessment of penalty is a consideration of the objective seriousness of the offence. I regard the offence as a most serious one. Requiring work to be carried out at a height of about six metres without the erection of scaffolding or guardrails is inherently dangerous. Whether or not the company had such general control of the site that it could erect scaffolding or guardrails itself is not, in my opinion, relevant. What is significant is the failure of the company to ensure that these protective structures were in place.
11 The company, Proline Pumping Pty Ltd, pleaded guilty to the offence (see IRC 1073 of 2008). Accordingly, there can be no doubt that the company of which the defendant was a director was guilty of the offence, and the defendant did not contend otherwise.
12 In assessing penalty, I shall also have regard to the deterrent effect both in a general sense within the building industry and, more particularly, on this defendant as he continues to operate within the industry, albeit utilising a company structure.
13 There are a number of mitigating factors that should be taken into account when assessing penalty. Neither the defendant nor the company, Proline Pumping Pty Ltd, has any prior conviction for a breach of the Act or associated legislation. Furthermore, the defendant expressed contrition and remorse for what occurred and has taken positive steps since the incident to ensure compliance with his responsibilities under the Act.
14 The defendant entered a plea of guilty at an early stage of the proceedings and is entitled to consideration accordingly. He co-operated fully with the WorkCover Authority of New South Wales throughout its investigations.
15 The prosecutor seeks a moiety of any penalty and costs. Such orders were not opposed by the defendant.
16 The maximum penalty is $55,000. Having regard to the seriousness of the offence and the need to take into account the deterrent effect of any penalty, but having regard also to the consideration which is appropriate by reason of the mitigating factors to which I have referred, I would assess an appropriate penalty as being the sum of $18,000.
Orders