Inspector Yeung v DJD Masonry Contractors

JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 236

1 DJD Masonry Contractors Pty Ltd ("the defendant") is a firm of commercial and industrial brick and blocklayers. In March 2001 the defendant was performing work at the Royal Prince Alfred Hospital redevelopment site. The construction manager at the site was Thiess Pty Ltd ("Thiess"). Wideform Constructions Pty Ltd ("Wideform") carried out formwork construction on the site.

2 On 21 March 2001 Mr Brent Leadbitter, a third year apprentice bricklayer employed by the defendant, was working on level 6 of the multi-storey construction site when he fell through an opening in the concrete floor and landed on level 3. As a consequence of the fall Mr Leadbitter suffered lacerations to his face and right forearm and the injuries to his right leg and foot were such as to require amputation below the knee.

3 The defendant was prosecuted by Inspector Thomas Yeung of the WorkCover Authority of New South Wales under s 15(1) of the Occupational Health and Safety Act 1983. The prosecutor alleged that the defendant failed to ensure the health, safety and welfare at work of all of its employees, in particular Brent Leadbitter, contrary to s 15(1) of the Act. The particulars of the charge were that the defendant:

a) Failed to provide means of entry to and/or to work in, on or around penetration areas to riser 4 of the said site that was safe and without risks to health. b) Failed to provide proper and/or adequate warning regarding risk of injury in relation to the entry to and/or work in, on or around penetration areas to riser 4 of the said site. c) Failed to maintain in a condition that was safe and without risk to health safety fences to the penetration areas of riser 4 of the said site. d) Failed to provide adequate and/or proper supervision of such persons in relation to the risks posed by the penetration areas of riser 4 in relation to the said site. 4 The defendant entered a plea of guilty to the charge against it.

5 The agreed statement of facts described the circumstances giving rise to the risk to safety as follows: 5.(a) The site has a number of risers being open shafts between floor levels which are designed for the installation and distribution of air conditioning, plumbing and other services. (b) As a consequence of the risers travelling through a number of floors, penetrations through the floor of each level were required. (c) Prior to the penetrations being opened up for the installation and distribution of air conditioning ducting, plumbing and other services, the penetrations were covered. (d) The penetration covers at each floor at each riser were designed to prevent objects and water from falling between floors. 6.(a) Wideform constructed the penetrations in riser 4 in or around September 2000. (b) The penetrations were covered as is industry practice for the reasons identified in paragraph 5(d) above. (c) The design of the penetration covers however differed from usual industry practice. 7. The top of the penetration covers were trowelled to the same finish as the surrounding slab. 8.(a) Some but not all penetrations were initially marked with a painted outline and the word "peno" on the concrete floor. (b) Contractors understood that the penetration covers were safe to walk on. (c) DJD Masonry Contractors Pty Ltd adopted the approach to the penetrations that they were safe to walk on but not to load materials off. (d) In riser 3 power outlets in common use were on the rear wall requiring workers to walk over the penetrations to access the power outlets 9. Some but not all penetration covers on site were fenced off. 10. The penetration covers on floors 7 and 10 were not fenced. These floors both had hobs built around the penetrations. 11. On 21 March 2001 Mr Brent Leadbitter commenced work at the site at approximately 7.00 a.m. 12. During the course of the morning Mr Leadbitter undertook his usual duties performing the laying of blocks on level 9 in company with other employees of DJD. 13. At approximately 10.00 a.m. that morning the DJD leading hand, Brian McMahon, had a conversation with DJD's contractor consultant from QMP, Nigel Jones and Jack Waitai-Tipene, the general foreman from Thiess Pty Ltd. That conversation occurred with all persons including Mr Waitai-Tipene standing upon the actual penetration cover on level 5 riser 4. This was directly below the penetration cover at level 6 which first collapsed. It was at this time that the exact method by which the holes were to be repaired was decided and directions given to the DJD Supervisor Brian McMahon. 14. As air conditioning ducts were being put through the riser 4 shaft it was determined that DJD would need to work from inside an adjacent area known as the smoke ventilation shaft to seal the shaft. This would require an employee of DJD to work atop scaffolding in the smoke ventilation shaft and replace blocks and seal with sealant into the smoke ventilation shaft wall. 15. From approximately 12.30 p.m. until 1.00 p.m. the DJD employees, including Mr Leadbitter, had their lunch break. 16. During or at the conclusion of the lunch breach Mr McMahon had a conversation with the DJD employees advising them of the requirement to undertake the work identified in paragraphs numbered 13 and 14 above. 17. The DJD employee, Richard Owen, was somewhat hesitant to perform the work and accordingly Mr Leadbitter volunteered to undertake the work. He was a short time later taken to level 9 to the top of riser 4 for a further briefing regarding his task by Brian McMahon his Leading Hand. 18. At approximately 1.30 p.m. Mr Leadbitter went to level 6 riser 4 and walked across a work platform covering the penetration cover on riser 4 level 6 and entered the smoke ventilation shaft adjacent and to the left of riser 4 through holes in the wall. The blocks that had been removed left a hole no less than 600mm high and approximately 600mm wide (certainly at no point less than 400mm wide). 19. Mr Leadbitter set up to undertake the rectification work atop scaffolding which had been installed inside the smoke ventilation shaft. 20. Mark Hopson, an employee of DJD and a qualified scaffolder was with Mr Leadbitter when he entered the smoke ventilation shaft over the work platform at level 6. Mr Hopson advised Mr Leadbitter that he was going to remove the work platform over the riser 4 level 6 penetration cover. He advised Mr Leadbitter that he should not attempt to exit through that area. 21. Due to the acoustics within the smoke ventilation shaft, Mr Leadbitter was able to give instructions Eg. Adjusting the position of his lead light hung from level 9 and to carry on a conversation with Richard Owen. Mr Owen was working on level 9 near the top of the shaft. 22. Mr Leadbitter found himself short of sufficient mortar to complete the job and asked Mr Owen to get someone to bring some down for him. 23. Mr McMahon, the leading hand, travelled down to level 6 with a wheelbarrow of mortar and set up two beams across the level 6 riser 4 area, in lieu of the work platform, and proceeded to pass a shovel load of mortar in to Mr Leadbitter. 24. Mr McMahon also left another half shovel of mortar outside the smoke ventilation shaft. Mr McMahon then returned to level 9. 25. Mr Leadbitter finished blocking in the hole on level 6 and then climbed down the scaffold to level 5 and exited the shaft there. Mr Hopson says he told Leadbitter that arrangements would be made for a ladder to be put up to him when he finished patching the holes. The work scaffold in the smoke ventilation shaft was topped by three planks. If the ladder was put up from a mid level already erected from level 5 it would have been too disruptive to the work required. 26. Mr Leadbitter then walked approximately 39 meters across the site to stair 3 up one flight and then a further 39 meters back to the riser 4 now at level 6. He then walked across the beams that had been laid by Mr McMahon over the penetration cover. 27. Mr Leadbitter scooped up a trowel of mortar and walked out onto the two 4 x 4 beams. He then smudged mortar over the rough edges left around the blocks he had just laid. 28. Mr Leadbitter performed a few trips doing this. 29. Mr Leadbitter then went up to level 9 to see Mr McMahon and checked whether or not he wanted him to joint seal the block work he had just completed. This course of action was agreed to by Mr McMahon although he did state that the application of the sealant should be done from inside the ventilation shaft. 30. Mr Leadbitter returned to Riser 4 level 6 with a caulking gun and walked on to the 4x4 beams and used the gun to joint seal around the blocks and has no further recollection after that. 31. One week prior to the incident Thiess had been informed by the defendant's employee, Mark Hopson, of a sag in the safety mesh on the bottom side (level 5 side) of the penetration for riser 4 on level 6. The penetration was sagged but intact. In addition to Mark Hopson, Brian McMahon was also aware of this sag. 32. The injured worker fell through the penetrations on Levels 6, 5 and 4, landing on Level 3. The penetrations collapsed under his weight. 33. The DJD normal tier of command included (a) Off site Manager or Supervisor (b) Nigel Jones - QMP Consultant (c) Godfrey Peterson - Site Supervisor (d) Brian McMahon - Leading Hand 34. The supervision structure in paragraph 33 above at this time was utilised to supervise only four men including Mr Leadbitter. 35. An inspection after Mr Leadbitter's accident identified that the penetration covers on levels 6, 5 and 4 of riser 4, had all been built with several pieces of non-interlocked mesh. Further, the mesh had not been embedded into the rear of the penetration hole. This was identified after the event by the manner in which the penetration covers were deformed. 36. As a consequence of sustaining injuries from the fall Brent Leadbitter had his right leg amputated below the knee.

6 Other evidence tendered in the proceedings by the prosecutor included information about Mr Leadbitter's injury and the disability he now suffers as a consequence; a bundle of ten colour photographs taken on 22 March 2001 of the relevant areas of the site where the incident occurred; and, the defendant's record of prior convictions (of which there were none).

7 Evidence for the defendant included an affidavit of Stephen Stephens, a director of Q Corp Australia Pty Ltd t/as Rehab Options Australia and who at the time of the incident provided assistance and advice to the defendant in respect of administering return to work programs and occupational health and safety policies; a hand drawn sketch of the penetration cover; a single colour photograph showing the penetration cover; 57 colour photographs taken by Mr Stephens showing various aspects of the scene of the incident and, in particular, the penetration cover on level 6 through which Mr Leadbitter fell; and, an affidavit of Dennis Souvleris, a director of the defendant.

8 Mr Stephens' affidavit evidence dealt with: the nature of his business; his relationship with the defendant and Mr Souvleris and his role in rehabilitating injured workers; the structure of the work units within the defendant; the defendant's policies relating to occupational health and safety prior to the incident; the defendant's system of occupational health and safety committees on site; the changes made by the defendant to its occupational health and safety policies and practices after the incident; the defendant's participation in the Construction Industry Occupational Health and Safety Regulation 2001 Project Phase 2; his involvement in the investigation of the incident involving Mr Leadbitter; and, the assistance provided by the defendant to Mr Leadbitter following the incident.

9 In his oral evidence Mr Stephens elaborated on material in the agreed statement of facts regarding the planning for the work to be done by Mr Leadbitter on the day of the incident including a job safety analysis. Mr Stephens said that a job safety analysis is usually done in writing and signed off by the site foreman but on the day in question the foreman was absent and a written job safety analysis was not completed. Mr Stephens also described the platform that was placed over the penetration cover whenever work was to be carried out over the cover and explained consistent with the agreed statement of facts, how it came to be that the platform was not over the penetration cover when Mr Leadbitter fell through.

10 Mr Stephens referred to the affidavit of Mr Souvleris which described the usual industry practice in regard to the design and construction of penetration covers on construction sites and how on the site in question the design and construction had been changed. Mr Stephens said that representatives of the defendant had expressed some reservations about the penetration covers and their capacity to bear loads but were assured by Thiess and "Hastie" that the penetration covers were safe to walk on and that it was common practice for contractors to walk on the covers. Mr Stephens said that the defendant took a decision, nevertheless, that when its employees were required to work over penetration covers it would be done on a platform over the cover in circumstances where the cover did not bear the weight of the platform or its load. Mr Stephens said that there were no safety fences erected around the penetration covers prior to the incident.

11 Mr Stephens also referred to the fact that two employees of the defendant had noticed sagging in the penetration cover on level 6 through which Mr Leadbitter fell and that they had reported this to Thiess one week prior to the incident. In a statement made by a Mr John Verrell to Inspector Yeung on 7 June 2001 it was said that the penetration cover "was subsided approximately 250 millimetres at the mid span against the wall on the lift shaft." Mr Verrell was apparently the site manager for "Hastie Australia". Hastie was the air conditioning contractor on site. Mr Verrell was not available for cross examination. Mr Stephens said that although the plastic covered mesh constituting the penetration cover was only fixed on three sides there was no expectation that it would flex to such an extent that a person might fall through it. However, he said that an inspection of the mesh on level 6 after the incident revealed that the cover had been constructed with three pieces of mesh that had not been joined together and it was only "the adhesion from the cement poured over the top that held them in place." On the levels below, through which Mr Leadbitter also fell, the mesh covers were made up of two and six pieces respectively. Mr Stephens said it was "like a jigsaw puzzle and … nobody knew about that."

12 Mr Stephens agreed in cross examination that the defendant had not made an assessment of the weight bearing capacity of the penetration covers because it had been informed by Thiess that the covers were safe to walk on and that when performing work over the covers the defendant used a work platform.

13 In his affidavit Mr Souvleris described the usual industry practice of designing and constructing penetration covers. Without going into a full description it is to be noted that, according to Mr Souvleris, reinforcing mesh for the concrete slab is laid in position including the area of the penetration and the reinforcing mesh is securely laid into the slab on all four sides. The slab is then poured leaving the penetration area free of concrete. A plywood cover is cut to oversize and dynabolted over the penetration cover and then sealed around with silicone to stop leakage between floors.

14 Mr Souvleris said that the penetrations and penetration covers on the subject site were designed and constructed to a different design put forward by Mick Fydock, an employee of Thiess and Peter Martinovich, site administrator for Wideform. Mr Souvleris deposed that neither Thiess nor Wideform obtained an engineer's report as to load bearing limits. In this alternative design and construction the reinforcing mesh to be used for the concrete slab is not put in place over the penetration area but instead a product known as "Pekaform" is used. Pekaform is a mesh covered in plastic on both sides. Concrete is then poured over the mesh "leaving a uniform floor exactly the same texture and look as the actual slab." Mr Souvleris deposed that "The concrete slab over the penetration covers at the site were generally in the vicinity of 25 mm to 50 mm thick." Mr Souvleris said that: (a) The Pekaform used in riser 4, on level 6, was in three pieces and neither overlapped nor tied together. (b) On level 5 two pieces of Pekaform were utilised they were not tied together. (c) On level 4 at least six pieces of Pekaform were utilised and not tied together. On this level pieces were put together in jigsaw fashion not tied and some of the six pieces had not embedded in the slab wall at all. This allowed them to totally come away when Brent impacted this floor. (d) In addition the Pekaform was not secured to the shaft wall at the rear in the areas identified this (sic) paragraph.

15 The maximum penalty available in this case is $550,000. In relation to the relevance of the maximum penalty for an offence, Wright J, President observed in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185-186: The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council 90 IR 397 at 407 - 408.

16 Mr Leadbitter was a third year apprentice. He was working at the said site on level 6 in the smoke ventilation shaft filling in holes in the wall with concrete blocks. Mr Leadbitter entered the smoke ventilation shaft by walking across a work platform covering the penetration cover on riser 4, level 6. Mr Hopson, a qualified scaffolder and employee of the defendant, advised Mr Leadbitter that he was going to remove the work platform over the penetration cover on riser 4, level 6. Mr Hopson advised Mr Leadbitter that he should not attempt to exit the smoke ventilation shaft the way he came in. Apparently, this was because air conditioning ducts installed on the wall on which Mr Leadbitter had been working would have made exiting from the shaft difficult.

17 Mr Leadbitter finished his work in the smoke ventilation shaft, climbed down a ladder and exited on level 5. He came back up to level 6 and by this time two wooden beams (100 mm x 100 mm) had been placed across the penetration cover instead of the work platform. The beams were put there by Mr McMahon in order to enable him to pass mortar to Mr Leadbitter after the work platform had been removed. Mr Leadbitter walked onto these beams and smudged mortar around the blocks he had laid in repairing the wall. He then consulted with Mr McMahon who agreed that Mr Leadbitter should seal the block work with sealant but that this should be done from the inside of the smoke ventilation shaft. However, Mr Leadbitter returned to level 6 with a caulking gun, walked onto the two wooden beams across the penetration cover and used the gun to joint seal around the blocks. Mr Leadbitter had no further recollection after that but it is obvious that the penetration cover on riser 4, level 6 collapsed under his weight and he fell three floors.

18 It was contended by Mr J Galluzzo of counsel for the defendant that there had been no need for Mr Leadbitter to do any work on the wall abutting riser 4 on level 6 and that it could all have been done from inside the smoke ventilation shaft and, indeed, those were his instructions. Mr Leadbitter, however, unaware of the danger posed by the penetration cover, no doubt feeling obliged to ensure that his blocklaying job was done properly, went to the wall in order to smooth out any mortar left on the wall. He managed to do that without incident then returned to joint seal the block work on the wall abutting riser 4, level 6 despite the fact he was told to do so from inside the smoke ventilation shaft. At no time on 21 March 2001, however, was Mr Leadbitter instructed not to do any work in the area of the penetration cover at riser 4, level 6.

19 The defendant was informed that the penetration covers were safe to walk on but, nevertheless, felt the need to place a platform over the covers whenever work was being carried out over the area of the covers because of the additional load that might be placed on the covers. As I noted earlier, the work platform covering riser 4 on level 6 had been removed after Mr Leadbitter had entered the smoke ventilation shaft. In assisting Mr Leadbitter in laying the blocks, Mr McMahon laid the two beams across the penetration cover on riser 4 at level 6 so that he could pass a shovel load of mortar through the hole in the wall to Mr Leadbitter. It was said in evidence that Mr McMahon laid the two beams across the penetration cover because it was covered with rubble and he found it difficult to walk across the rubble because of a hip replacement and knee injury. Nonetheless, I note that Mr McMahon, along with Mr Hopson, was aware of the fact that the mesh on the bottom side of the penetration for riser 4 on level 6 had a sag in it - perhaps to the extent of 250 mm. In any event, after assisting Mr Leadbitter, Mr McMahon left the two beams in place across the penetration cover and Mr Leadbitter used the beams to later gain access to the wall.

20 The defendant was aware that the penetration covers on the subject site were of a different design and construction than those usually found on construction sites and although it was assured that the covers were safe to walk on, after inspecting the covers, it decided to use a platform across the covers whenever work was to be done in the penetration area. There must, therefore, have been an element of doubt or uncertainty on the defendant's part about the load bearing capacity of the penetration covers. No assessment was undertaken by the defendant to check the load bearing capacity of the covers. Added to the doubt or uncertainty about the load bearing capacity of the covers was the fact that Mr McMahon noticed a sag in the mesh. Notwithstanding the defendant's doubt or uncertainty about the load bearing capacity of the penetration cover and the knowledge of the sagging mesh, after removing the work platform from over the penetration cover on riser 4, level 6 no proactive steps were taken by the defendant to ensure that persons and, in particular, Mr Leadbitter were not at risk of injury whilst performing work on or near the penetration cover on riser 4, level 6.

21 It might be said even though a sag in the mesh was noticed by Mr McMahon that is was considered to be safe because it was thought to be a single piece of mesh embedded into the surrounding concrete slab on three sides. It seems to me, however, that a reasonable observer who was aware that the concrete on the penetration cover was only 25 to 50 mm thick, that the cover was covered in rubble and the mesh was sagging, would consider that the prudent course would be to take steps to prevent persons walking on the cover until it was checked out.

22 I consider that the risk to safety posed by the penetration cover on riser 4, level 6 was reasonably foreseeable. The defendant was aware of the sagging mesh and rubble covering the penetration cover. Given the practice on site of walking on the penetration covers it was reasonably foreseeable that the penetration cover might give way under weight.

23 The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant to assessing the seriousness of the offence. See: Department of Mineral Resources of NSW (McKensey v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 at 27. The defendant could either have excluded persons from working in the area of the penetration cover by erecting appropriate safety fencing or, if work was necessary in the area, provided persons with the necessary safety equipment including the provision of fall protection. These steps were readily available to the defendant.

24 In Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No. 1214 of 1990, 30 June 1992 at 9); the Full Court stated: The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence. The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission involved in the breach of statutory duty being assessed. Obviously a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences.

25 As to the gravity of the injuries to Mr Leadbitter, they were very serious and it is not beyond contemplation that he could have been killed.

26 Whilst I accept that the defendant was led to believe that the penetration covers were safe to walk on and that this should mitigate the degree of seriousness of the offence, nevertheless, given the circumstances I have described one can only regard the offence as being serious but certainly not in the high range of seriousness.

27 In relation to deterrence, the relevant principles were discussed by a Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. As to specific deterrence the defendant has a good safety record and, as the prosecutor submitted, has a "praiseworthy approach" to occupational health and safety. Whilst I have had regard to the need for specific deterrence it has not figured prominently in my consideration as to penalty.

28 There are a number of subjective factors to be taken into account in sentencing. These factors are: 1. The defendant pleaded guilty at an early stage.

2. The defendant cooperated with the prosecutor in his investigations.

4. The defendant has sound policies and practices in the area of occupational health and safety.

5. The defendant provided extensive and very commendable rehabilitation assistance to Mr Leadbitter.

29 I consider that given the nature and quality of the offence a fine of $125,000 is appropriate with a discount of 25 per cent for the utilitarian value of the early guilty plea and 10 per cent for other subjective factors. This results in a penalty of $81,250.

30 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $81,250 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's costs in an amount as agreed, or in default of agreement, leave is granted to either party to approach the Court for final orders as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.