Inspector Yeung v Donald Wilson trading as Wilson's Tree Service

Industrial Relations Commission (NSW)|2004-11-15|Before: Boland J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346 PROSECUTOR Inspector Thomas Yeung PARTIES : DEFENDANT Donald Edwin Wilson trading as Wilson's Tree Service or Wilson's Garden Management FILE NUMBER: IRC 1043 of 2004 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 - Construction Industry - Removal of trees from construction site - Fatality - No causal connection between defendant's failure and death of contractor - Plea of guilty - Inadequate supervision and instruction - Offence proven - Penalty imposed Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Fines Act 1996 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Insp Mayo-Ramsay) (2000) 99 IR 29 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor (2001) 105 IR 348 Fernandes Constructions Pty Ltd v Workcover Authority of New South Wales (Inspector Steven Jones) (2002) 124 IR 148 CASES CITED : Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Maugher) (2002) 115 IR 78 Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364 Workcover Authority of New South Wales (Inspector Farrell) v David Carl Shrader (2002) 112 IR 284 WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 HEARING DATES: 10/13/2004 DATE OF JUDGMENT: 11/15/2004

PROSECUTOR Mr P Skinner Solicitor: Ms H Cameron WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Solicitor: Mr A Howell Jones Staff & Co

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Monday 15 November 2004

INSPECTOR THOMAS YEUNG v DONALD EDWIN WILSON TRADING AS WILSON'S TREE SERVICE OR WILSON'S GARDEN MANAGEMENT

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2004] NSWIRComm 346

1 On 3 July 2002 Donald Edwin Wilson trading as Wilson's Tree Service or Wilson's Garden Management [ABN: 42985 004 424], the defendant in these proceedings, was undertaking the processing of trees including woodchipping at a construction site at 12 Yatala Road, Mt Kuring-gai. The defendant employed Michael John Colnan and had engaged a contractor, Geoffery William Jardine, to assist in the woodchipping operations.

2 Sometime between about 10.00am and 12.30pm Mr Jardine was preparing a sling around trees in order to assist an excavator being operated by Brian Paul Munroe to remove the trees and deliver them to the defendant and Mr Colnan who would then process them through a woodchipping machine, at the construction site. At about 12.30pm Mr Munroe discovered Mr Jardine's dead body about 6 metres from the excavator, lying on the ground. Mr Jardine had multiple injuries consistent with having been run over by a heavy vehicle such as the excavator.

3 The defendant was prosecuted by Inspector Thomas Yeung of the WorkCover Authority of New South Wales under Section 8(2) of the Occupational Health and Safety Act 2000. Section 8(2) provides that: (2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

4 The charge in the application for order alleged that the defendant failed to: [E]nsure Geoffrey William Jardine ("Jardine") a person not in the defendant's employment was not exposed to risks to his health or safety arising from the conduct of the defendant's undertaking at the defendant's place of work.

5 The particulars of the charge were: a. At all material times the defendant was an employer. b. At all material times the defendant employed Michael John Colnan ("Colnan") to assist in woodchipping operations at 12 Yatala Road, Mt Kuring-gai ("the construction site"). c. At all material times Jardine, a sub-contractor, Colnan and the defendant were working at the construction site in the vicinity of a 22-tonne SK220 Kobelco hydraulic excavator ("the excavator") operated by Brian Paul Munroe ("Munroe"). d. At all material times the defendant's undertaking was the processing of trees removed by the excavator at the construction site. e. The defendant failed to provide such instruction and supervision as may be necessary to ensure the safety of Jardine while he was working near the excavator. f. As a result of the said failure Jardine was placed at risk of injury and suffered fatal injuries.

6 The defendant pleaded guilty to the charge and an agreed statement of facts was tendered to the Court. The agreed statement revealed that the construction site was for a factory development of 16 x 2-storey strata title units (warehouses). The Development Application was lodged on 5 December 2001 with Hornsby Shire Council by Mark Barlow of Barlow Developments Pty Ltd ("Barlow") on behalf of G & T Moit.

7 On 28 February 2002, a letter ("fee proposal") was sent from Howie Herring & Forsyth Pty Ltd ("HHF") to Barlow regarding the development of the construction site. The letter nominated Jeffery Clarke from HHF as Senior Project Manager and Andrew Skelton as Project Manager responsible for client liaison, co-ordination and administration of all aspects of the development. These appointments were made in May 2002.

8 Work at the construction site commenced on about 10 June 2002. At the time of the accident the work involved road construction. Mr Skelton was the only HHF employee on the site on 3 July 2002.

9 As Project Manager, Mr Skelton, on behalf of Barlow, engaged the services of various contractors at the site. In relation to safety arrangements on the site the agreed facts were: 12 … HHF had a Safety Management Plan Document Register ("SMP") consisting of some 13 pages with an issue date of 31 October 2000. The intention was that it was to be provided by HHF to each contractor with the tender and contract documents, and to every person on site as part of a site-specific induction. In addition to the SMP, HHF maintained a "Hazard Control" policy. That policy was to be provided by HHF to all contractors with tender and contract documents and to every supervisor on site at site induction, where applicable. 13 The SMP required that all personnel planning to work on site be inducted before having access to the work area. This was to be a general site induction which covered the rules and requirements of the site, emergency procedures, reporting procedures and site amenities. In accordance with the SMP, a record of each person's induction and qualifications was to be completed at the end of each induction. A Safety Management Plan Site Register ("Site Register") was filled in and signed by those contractors who had undergone a site induction at the construction site. Skelton co-signed as the HHF representative. 14 In addition, under the SMP, contractors were required to hold weekly toolbox meetings. The SMP also provided: "Wherever a potentially hazardous situation could occur, including working at heights or in confined spaces, bringing fuel or hazardous material to site, explosive power tools, carnage, oxy cutting and welding, special processes the HHF representative or the Contractor shall initiate a formal Hazard Control procedure to identify the hazards, suitable work method statements, risk analysis, permits to work as outlined in procedure HHF OHS 02 HAZARD CONTROL". 15 The Hazard Control policy provided that "at least seven days prior to work" commencement on site, the following safety system will be implemented". The system then identified four matters that were to be addressed: a "Hazard Identification Sheet", the provision of a "Work Method Statement", the provision of a "Risk Analysis Sheet" and a "Work Safety Permit". The Hazard Identification Sheet was to be "used to identify all possible hazards pertaining to the project task" and that "initially this will be completed by the HHF representative, who will sign each hazard box which has a potential hazard relating to project task". The Hazard Identification Sheet was then to be "reviewed by HHF representatives and contractor's supervisor to agree on critical hazards". The Hazard Control policy required contractors, in the event of potentially hazardous situations, to submit a work method statement ("WMS") and a Risk Analysis Sheet. 16 Skelton also kept a Daily Site Diary which purported to record, among other items, toolbox talks held, safety walks taken and any inductions completed.

10 Mr Munroe commenced work on the site on 17 June 2002. He claimed he received a site induction either on that day or on 24 June 2002 from Mr Skelton but there was no record of this in the Site Register. The Daily Site Diary for 17 June 2002 records a toolbox talk given to excavator drivers and groundworkers. Munroe's duties involved the operation of the excavator for the removal of trees and rocks. The agreed facts were that Mr Munroe operated under the direct supervision of Mr Skelton, receiving all his instructions from him.

11 The agreed statement of facts indicated that between about 25 and 28 June 2002, Mr Skelton on behalf of Barlow engaged the services of Metro Tree Lopping Services Pty Ltd ("Metro") to remove and grind tree stumps and remove rocks at the construction site. Further, that: On the first day of work Skelton directed Metro workers to their designated area of work at the construction site. Metro's director at the site, Dennis Warren Cockayne ("Cockayne"), appointed a spotter to watch out for the excavators operating at the site. On subsequent days, Metro workers operated inside an area bounded by a 2.4 metre high fence, with two access gates. The excavators were on the other side of the boundary fence. According to Cockayne, Skelton instructed Metro workers to stay within their designated work area away from the excavators.

12 The defendant's presence on the site came about through an oral agreement with Mr Skelton to process trees on the construction site. It was agreed that an excavator would knock down the trees and that the defendant was being engaged to process the trees. The defendant was to be paid $120.00 per hour plus GST.

13 In relation to safety arrangements affecting the defendant, the agreed facts were that: At no time prior to the accident on 3 July 2002 was the defendant provided with a copy of the SMP, nor was he informed of the existence of the SMP. At no time prior to the accident on 3 July 2002 was the defendant asked to provide a WMS. The defendant did not prepare and produce a WMS prior to the accident. At no time prior to the accident on 3 July 2002 was the defendant or Colnan provided with a site induction. The defendant was not aware that persons working on construction sites were required to undergo occupational health and safety induction training before they could start work on a construction site. At no time prior to the accident on 3 July 2002 did Skelton check the qualifications of the defendant, Colnan or Jardine for doing the work. At no time prior to the accident did Skelton check whether training was required for the defendant, Colnan or Jardine.

14 On the day of the accident, 3 July 2002, the defendant, Mr Colnan and Mr Jardine commenced work at about 7.30am. The job had an estimated duration of about four hours. The defendant had provided Mr Colnan with personal protective equipment including gloves, eye protection and earmuffs. Mr Jardine provided his own ear protection, eye protection and boots.

15 Upon arriving at the site Mr Skelton showed the defendant the area to be cleared and thereafter left the area in which the work was to be performed and gave the defendant no further supervision. The agreed statement then indicated: Prior to commencing work the defendant had a toolbox talk with Colnan and Jardine and instructed them on the work to be performed. Neither the defendant nor Skelton arranged for a spotter to be present during the performance of the work. The work was carried out in the vicinity of Munroe's excavator with no boundary between the workers and the excavator. The defendant and Colnan had both previously worked around moving plant. Jardine had worked on construction sites for a number of years and had been involved with heavy machinery all of his working life.

16 In relation to the system of work to be used the agreed facts were that: Munroe noticed that the excavator would be operating on a 1 in 4 slope. He consulted with the defendant, Colnan and Jardine about the work. The system of work being utilized at the time of the accident was as follows: (a) Munroe would use the excavator to push down the trees, a few at a time; (b) Throughout this time the truck and chipper were 12 to 15 metres from the area where the excavator was being operated. (c) Munroe told the defendant, Colnan and Jardine to stay behind the excavator when the trees were pushed over. The trees were being pushed over away from where Colnan and Jardine were standing and onto the remaining wood. (d) Once the trees were pushed over, Munroe would swing the excavator around and indicate to the tree loppers to come in to sling the trees. Jardine would place a sling on the trees indicated by Munroe and then place the sling over the bucket teeth of the excavator. (e) While the trees were being slung, Munroe would wait with the excavator bucket down. (f) Once the tree loppers were clear of the excavator, Munroe would then use the excavator to move the slung trees to within a metre or so of the chipper. (g) Colnan would then utilize a chainsaw to dissemble the tree. Colnan and Jardine would then feed the tree through the chipper. (h) The defendant had a leg injury and was not able to participate in the work. The defendant spent the majority of the time next to the discharge chute of the chipper, directing the flow of woodchips into the truck. (i) As the excavator moved down the slope removing trees, the workers reversed the truck with the woodchipper attached, behind the excavator.

17 The agreed facts also indicated that when operating the excavator Munroe's vision did not extend to the rear of the excavator but according to him the workers were about 10 metres behind the excavator.

18 In describing the circumstances leading up to the discovery of Mr Jardine's body the agreed facts stated: 26 Just before the accident Jardine, working with the excavator, delivered a tree to the chipper. Colnan processed the tree into the woodchipper. The chipper was so noisy that none of the workers could be heard. In addition, the workers were wearing ear protection. Jardine motioned to Colnan who in turn passed Jardine the sling. Jardine walked off towards an area on the far side of the excavator where further trees were to be removed. Colnan continued to cut branches and feed them into the woodchipper. Both the defendant and Colnan were facing towards the truck with their backs to the excavator. 27 A couple of minutes later, Munroe enquired as to Jardine's whereabouts. Neither the defendant nor Colnan knew where he was and the work paused for a minute or so whilst they looked around. They failed to locate him and resumed work. A minute or so later, Munroe informed them he had found Jardine. The defendant and Colnan went to investigate and found Jardine lying on the far side of the excavator beside a large rock partially covered with small branches and foliage.

19 There was an autopsy carried out and the report indicated Mr Jardine died of multiple injuries consistent with being run over by a heavy vehicle such as an excavator. However, the agreed statement also indicated the following: The autopsy report dated 14 September 2002 also showed the deceased suffered "severe coronary artery disease" and that in one of the deceased's coronary arteries there was evidence of a fresh haemorrhage into a plaque deposited on the wall of the artery, indicating the deceased may have suffered a myocardial infarction or "heart attack". Dr Langlois undertook the post mortem examination and expressed the opinion that it was "extremely difficult" to determine whether the haemorrhage into the plaque happened prior to or following the deceased suffering various injuries. Dr Langlois expressed the opinion that: Such an event [the heart attack] could have caused Mr Jardine to collapse where upon he was then run over by the excavator. However there was severe trauma to the chest and there was a tear of the heart. Therefore, it is possible that the haemorrhage into the plaque occurred as a result of the chest trauma. From a purely pathological view it is extremely difficult to separate these two possibilities. An investigation into the circumstances of the incident may assist in clarifying this matter.

20 It was agreed that observations by a police officer at the site of the accident indicated there was very little blood as a result of what was observed to be a large head injury. This was confirmed by Mr Skelton and a Mr Thomas Patrick Forde who observed: I then looked at his head and his body, his head was badly damaged with a large opening in the back of his head on the top right hand side…I noticed that there was no blood around his head where the wound was. I thought this was strange that there was no blood. I thought he might have been dead before this happened.

21 It was an agreed fact that it was not possible to determine whether Mr Jardine died before or after the accident. It was also agreed the defendant has no previous convictions for an offence under the Occupational Health and Safety Act 2000 or its predecessors.

22 An affidavit of Mr Wilson was read. Mr Wilson was required for cross-examination. I will refer to Mr Wilson's evidence where it is relevant.

23 The initial consideration in the sentencing process is for the Court to determine the seriousness of the offence viewed objectively. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum: WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at 196. In this case, given the Court is dealing with an individual with no prior convictions, the maximum penalty is $55,000. A consideration of subjective features of the offence, that is the facts concerning the offender, will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified.

24 As well as considering the objective and subjective circumstances of the offence the Court, in sentencing an offender, is required by s 21A of the Crimes (Sentencing Procedure) Act 1999, to take into account prescribed aggravating and mitigating factors.

25 Mr A Howell, solicitor for the defendant, submitted, "this is a matter at the absolute bottom of the spectrum of seriousness". This was so, he submitted because, amongst other considerations, this was not an offence involving the broader failure to provide a safe system of work but was confined to a failure to "provide supervision and instruction as may be necessary to ensure the safety of Jardine". Further, that "The death of Mr Jardine whilst tragic is not, in the circumstances of this case, properly regarded as a manifestation of the risk and cannot be taken into account as an aggravating feature of the offence." Mr Howell submitted there was no causal connection between the death of Mr Jardine and the creation of the risk created by the inadequate supervision. This was so, it was submitted, because it has been agreed by the prosecutor that it was not possible to determine whether Mr Jardine was run over by the excavator before or after he had died, perhaps from a heart attack.

26 Mr Howell also submitted the work undertaken on the day of the accident was a "one-off" job and that the "defendant had not been engaged in the use of an excavator in this work before, has not been engaged in it since and has no intention of being involved in work either on a building site or using an excavator again". Further, it was submitted when assessing the objective nature and seriousness of the offence in circumstances where there are multiple parties who have contributed to the risk, the Court was required to assess the extent to which the various parties have contributed to the risk and their conduct generally, to identify which party ought bear the greatest level of responsibility. In this case, it was submitted: … [T]he defendant ought be seen as having played a significantly lesser role in the offence when assessed against the other parties who contributed to the risk; namely, Mr Andrew Skelton (whom we note is being prosecuted in matter no. IRC 04/1044) and Howie Herring and Forsyth Pty Ltd (HHF) (whom we note is being prosecuted in matter no. IRC 04/1042).

27 There was clearly a failure to provide a proper level of supervision and instruction and the defendant has acknowledged this by pleading guilty to the charge. Mr Howell contended this was an offence of lesser seriousness than the "much broader failure to provide a safe system of work". That may be so but it will depend on the extent of the failure to supervise and instruct and the seriousness of the risk arising from that failure.

28 In the present case there was a degree of supervision and instruction evident from the work method adopted and Mr Wilson's instruction to stay away from the moving excavator. The initial method of work involved Mr Jardine and Mr Colnan standing behind the excavator in the vicinity of the chipper, approximately 15 to 20 metres away from the excavator, whilst the trees were pushed over onto remaining bushland and then picked up in the excavator bucket.

29 This system was then changed so that once the trees were pushed over Mr Munroe would swing the excavator around and indicate to Mr Jardine and Mr Colnan to come in to sling the trees. They would place a sling on the trees indicated by Mr Munroe and then place the sling over the bucket teeth of the excavator. While the trees were being slung, Mr Munroe would wait with the excavator bucket on the ground. Once Mr Jardine and Mr Colnan were clear of the excavator Mr Munroe would then use the excavator to move the slung trees to within a metre or so of the chipper and Mr Colnan and Mr Jardine would process it through the chipper.

30 It must be accepted that on the instructions given by the defendant as to the system of work to be observed, there was no requirement for Mr Jardine to work in close proximity to the excavator whilst it was in motion and it also must be accepted that the method of work chosen by the defendant on the day of the accident was designed to avoid obvious risks to health and safety.

31 I accept that this offence was not in the serious class of cases such that it should attract a heavy fine and, indeed, Mr P Skinner of counsel for the prosecutor conceded this was the case. Nevertheless, I have some difficulty in accepting that this offence is at the lowest end of the range of seriousness. An offence under s 8(2) of the Act will be regarded as more serious than it otherwise might have been if the risk to safety was obvious or reasonably foreseeable and reasonably practicable steps were available to avoid the risks, but these steps were not taken. The defendant conceded that the risk to safety posed by working in close proximity to plant was reasonably foreseeable but submitted the seriousness of the offence was significantly mitigated by the system of work adopted by the defendant. I consider, however, the level of supervision and instruction fell well short of what was required.

32 The work environment was bushland. It was noisy ("The chipper was so noisy that none of the workers could be heard"), the ground was rough and sloping and men were working in proximity to a 22 tonne excavating machine cutting up trees with chain saws and slinging the load onto the excavator's bucket. The excavator driver could not see to the rear of the machine and whilst the wood chipping was taking place Mr Wilson had his back to the excavator and surrounding area. Properly supervised the site should have involved the well-established practice of a "spotter" who, at all times, could account for the position of each worker on the site and if any person was not visible, would immediately signal a cessation of the work. Alternatively, the excavator operator should have been instructed that unless he could see Messrs Jardine and Colnan he was not to operate the machine and that Mr Watson would stay with the woodchipping machine and not approach the excavator.

33 It was reasonably foreseeable in the work environment obtaining at the site that a risk to the health and safety of workers could arise unless particular care and appropriate steps were taken to ensure that at all times no one came near to the machine whilst it was in operation. The level of supervision that the defendant employed at the site was clearly inadequate to achieve that necessary guarantee of safety. It consisted of indicating the system of work to Messrs Colnan and Jardine but in an environment that required supervision in the form of constant observation of the work as it progressed, that did not occur. Mr Wilson said he did observe the workmen "whilst material wasn't being fed into the chipper, however, once something was fed into the chipper I had my back to the area where the excavator was working". At the time of the accident Mr Wilson had his back to the area where the excavator was working.

34 There was some level of instruction but again it was inadequate in the circumstances. Mr Wilson said in his evidence: I discussed the method of work to be used with Jardine and Colnan and cautioned them to stay well clear of the excavator whilst it was working. My comment in this regard was a general observation about staying away from the machine rather than a specific direction about how far to stay away or anything of that kind. I said words to the effect of "make sure you stay clear of the machine".

35 The steps I have described that were available to avoid the risk were reasonably practicable.

36 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case there was a death but as the defendant submitted, Mr Jardine's death cannot properly be regarded as a manifestation of the risk and cannot be taken into account as an aggravating feature of the offence.

37 In light of the prosecutor's agreement that it is not possible to determine whether Mr Jardine was run over by the excavator before or after he had died, perhaps from a heart attack, it cannot be established beyond reasonable doubt that a causal connection exists between the defendant's failure to provide adequate supervision and instruction and the risk to health and safety posed by working in proximity to the excavator: See Capral Aluminium Ltd v Workcover Authority of New South Wales (Insp Mayo-Ramsay) (2000) 99 IR 29 at [60].

38 The defendant submitted that given no connection could be established between Mr Jardine's death and the defendant's failures, this "dramatically reduces the objective nature and seriousness of the offence." This does not necessarily follow. The seriousness of the offence is determined by an objective consideration of the seriousness of the risk, not whether it caused injury or death, although such consequences may manifest the seriousness of the risk. In other words, even though no injury or death occurs, if the risk to safety caused by the defendant's act or omission is likely to result in serious injury or death, that is a measure of the seriousness of the offence. In this case the extent of the defendant's failure to provide adequate supervision and instruction and the likelihood of that failure resulting in serious injury or death is a matter to be taken into account in determining an appropriate sentence.

39 The defendant submitted the defendant ought be seen as having played a significantly lesser role in the offence when assessed against the other parties who contributed to the risk, namely, Mr Andrew Skelton (who is being prosecuted in matter no. IRC 1044 of 2004) and Howie Herring and Forsyth Pty Ltd (HHF) (who is being prosecuted in matter no. IRC 1042 of 2004).

40 As the defendant submitted, the Court is required to assess the extent to which the various parties have contributed to the risk and their conduct generally, to identify which party ought bear the greatest level of responsibility: see Workcover Authority of New South Wales (Inspector Farrell) v David Carl Shrader (2002) 112 IR 284 at [61] referred to with approval by the Full Bench in Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Maugher) (2002) 115 IR 78 at [33] and Fernandes Constructions Pty Ltd v Workcover Authority of New South Wales (Inspector Steven Jones) (2002) 124 IR 148 at [48].

41 Referring to the affidavit of Mr Wilson and the agreed statement of facts, the defendant submitted: HHF had in place a Safety Management Plan (SMP), requiring all persons on site to be inducted prior to coming onto the site. The SMP required that "at least seven days prior to work commencement on site" a series of steps were to be taken.... The system then identified four matters that were to be addressed: a "Hazard Identification Sheet", the provision of a "Work Method Statement", the provision of a "Risk Analysis Sheet" and a "Work Safety Permit". The Hazard Identification was initially to be completed by an HHF representative and then "reviewed by HHF representatives and contractor's supervisor to agree on critical hazards". Once that hazard analysis was completed, if the task was assessed as being "potentially hazardous", the contractor was to be required to provide a Work Method Statement and a Risk Analysis Sheet. None of that took place with respect to the work being performed by the defendant. No induction was provided. The defendant had not worked on a building site before and was not aware of the requirement to undertake an induction prior to going onto a construction site. The defendant was not provided with a copy of the SMP, no hazard identification process was undertaken by Skelton or HHF, nor was the defendant requested to provide work method statements. No supervision was provided by Skelton. By contrast, the defendant was proactive in the way he approached the question of safety on site. The defendant held a toolbox talk with his employees prior to commencing work in which he had discussed the method of work to be utilised with his employees and with the excavator operator (all of whom had greater experience than he working around heavy machinery). Together they created a system of work which was thought to be safe. In all the circumstances, taking into account the fact the work being completed was relatively simple or uncomplicated, the unfamiliar environment in which the defendant was working, the fact it was a clear sunny clear day, there was no work going on in the immediate vicinity other than the tree work being completed by the defendant, the fact that his employees had extensive experience working around heavy machinery and the fact that they had collectively discussed the best way to do the work before hand, the defendant's conclusion that the work method adopted was safe was a reasonable one; albeit that it is conceded it did not guarantee or make certain that there was not a latent risk to employees.

42 The defendant also referred to the conduct of Mr Skelton on the day of the accident. It was submitted the only reasonable inference to be drawn from Mr Skelton directing the defendant and Mr Colnan to sign a Site Register, to provide hard hats following the accident and request that one be placed on Mr Jardine's body, and then fencing off the excavated areas of the site after the accident and before the arrival of WorkCover, was that there was a recognition by Mr Skelton on behalf of HHF that he had failed in his obligations to ensure safety.

43 On the evidence in this case it would appear that the defendant should not bear the whole blame for the failure to adequately supervise and instruct and that a substantial part of that responsibility lies with other parties. I have taken this consideration into account in fixing the penalty.

44 In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. This is not one of those rare cases and it is appropriate that the penalty reflects an element of general deterrence.

45 As to specific deterrence, I accept the defendant's submission that it is not a significant consideration in the determination of penalty in this case for the following reasons: (a) Prior to date of the accident, the defendant was aware of the need to ensure the safety of its workforce and has always conducted his operations with a view to providing a safe working environment. (b) The work associated with the offence was an aberrant work activity that the defendant had not been involved in personally prior to the accident, has not been involved with since the accident and has no intention of ever being involved with in the future. (c) Since the accident, the defendant has developed an occupational health and safety manual setting out a pro-active safety focus to the way his business operates. The manual is utilised as a matter of practice and the defendant has continued to address the health and safety of its workforce.

46 There are a number of relevant subjective factors to be taken into account. Firstly, that the defendant cooperated with WorkCover in its investigation of the matter. Secondly, the defendant expressed genuine remorse for the offence and it is apparent from his evidence he was deeply affected by Mr Jardine's death. Thirdly, the defendant sought to assist the widow of the deceased following the accident. Fourthly, an early plea of guilty was entered. Fifthly, the defendant has no prior record of convictions. Mr Wilson is of good character and I do not consider he will re-offend. Accordingly, I propose to discount the penalty by 25 per cent for the utilitarian value of the early plea and by a further 10 per cent for the other factors.

47 Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. The defendant provided extensive evidence as to the state of his means. I am satisfied, having regard to that evidence that the defendant is, as he puts it, "relatively impecunious". The evidence was that the defendant's outstanding debts exceed his outstanding assets and that in his belief any significant penalty will give rise to a need to sell the family home. I propose to reduce the fine that otherwise would have been ordered to be paid by the defendant given the defendant's limited means and impecuniosity.

48 The defendant contended that this was an appropriate matter in which to invoke s 10 of the Crimes Sentencing Procedure Act. Section 10 provides that a charge may be dismissed under s 10(1)(a) if it concludes that it is "inexpedient to inflict any punishment (other than nominal punishment) on the person", having regard to the matters identified under s 10(3); namely: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence; (c) the extenuating circumstances in which the offence was committed, (d) any other the matter that the Court considers proper to consider.

49 The principles relevant to the application of s10 of the Crimes (Sentencing Procedure) Act were considered in Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor (2001) 105 IR 348 (at [169]-[177]) and adopted by the Full Bench in Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259.

50 It is clear that s 10 will only be invoked in "extraordinary and highly exceptional circumstances". The offence in this case was not trivial in nature and there are no extenuating circumstances that would warrant the application of s 10. The offence does not fall into the category of "extraordinary and highly exceptional". There was a clear failure on the part of the defendant to provide adequate levels of supervision and instruction.

51 The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor's costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court's discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable.

52 The defendant contended that this was an appropriate case in which to make an order that the parties bear their own costs for the following reasons: (a) The defendant has, from the date of the accident, throughout the investigative process and throughout the course of proceedings done his level best to assist the prosecutor. (b) An order as to costs is intended to be compensatory in nature rather than punitive. (c) The defendant is relatively impecunious. Any penalty imposed is likely to have a significant impact on the financial capacity of the defendant. Any order as to costs is likely to result in further financial hardship for the defendant and his family, rendering it more likely that he will be required to sell his family home. (d) In all the circumstances, it is a more just outcome for the prosecutor to bear the entirety or a substantial portion of its costs in the proceedings to date.

53 Having weighed up the objective seriousness of the offence and the relevant subjective factors including, in particular, the defendant's relative impecuniosity, and noting that the purpose of costs is not punishment, I have decided the defendant will pay 20 per cent of the prosecutor's costs. As a consequence of the events of 3 July 2002, which was not all of his own making, the defendant and his young family face a period of quite severe emotional and financial hardship. I can see no point in adding to their difficulties by simply adopting the usual rule that costs follow the event. I do not consider in this case that to do so would be just and reasonable.

54 I have decided an appropriate penalty in this case is $4,000. This amount is to be reduced by 35 per cent, resulting in a fine of $2,600.

55 The Court makes the following orders: 1) A verdict of guilty is entered. 2) The defendant is convicted of the offence as charged.

The defendant is fined an amount of $2,600 with a moiety thereof to the prosecutor. 4) The defendant shall pay 20 per cent of the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ________________________

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