Inspector Yeung v Thiess Pty Ltd

PROSECUTOR: Mr D B O'Neil of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr S J Rushton SC and Mr A B Gotting of counsel Solicitor: Mr G Delaney Corrs Chambers Westgarth

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Tuesday 20 April 2004

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 96

1 Thiess Pty Limited ("the defendant") was the construction manager on a redevelopment site at the Royal Prince Alfred Hospital Clinical Services Building, Lambiedew Drive, Camperdown in the State ("the site"). DJD Masonry Contractors Pty Ltd ("DJD"), a firm of commercial and industrial brick and blocklayers, had been engaged to perform building work on the site. On 21 March 2001 a number of employees of DJD were working on the site including Brent Leadbitter, a third year bricklaying apprentice and Brian MacMahon, a leading hand. Nigel Jones, an employee of QMP that had been contracted by DJD to provide assistance in the construction work, was also on the site on 21 March 2001.

2 On 21 March 2001 Mr Leadbitter was undertaking the repair of blockwork on level 6 of the building. Adjacent to where he was working was a shaft, otherwise known as a riser, running through the concrete floors of the various levels of the building the opening of which is temporarily covered over at each level by what are known as penetration covers. In the course of repairing the wall adjacent to riser 4 on level 6 Mr Leadbitter apparently stepped on the penetration cover on riser 4 at level 6, it gave way and he fell through the penetration covers below on levels 5 and 4. He 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 charged with an offence under s 16(1) of the Occupational Health and Safety Act 1983. In Inspector Yeung v Thiess Pty Ltd [2003] NSWIRComm 325 the defendant was found guilty of a charge that it failed to: ensure that persons not in its employment, in particular Brent Leadbitter, Nigel Jones and Brian McMahon were not exposed to risks to their health and safety arising from the conduct of its undertaking whilst they were at its place of work contrary to section 16(1) of the Occupational Health and Safety Act 1983.

The particulars of the charge were that the defendant: (a) Failed to provide a 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 risk 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 training of such persons in relation to the risks posed by the penetration areas of riser 4 in relation to the said site.

(e) 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. As a result of the said failures, Brent Leadbitter suffered a serious injury and Nigel Jones and Brian McMahon were exposed to risks to their health and safety.

5 The primary factor for determining sentence in this jurisdiction has been held to be the objective seriousness of the offence: Independent Cargo & Wool Services Pty Limited v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT92/1041, 10 March 1994) at 4; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) at 9; Inspector Mauger v P Ward Civil Engineering Pty Limited (unreported, Fisher CJ, CT94/1212, 21 December 1995) at 8-9; WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 96; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 472-476; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 636, (2000) 99 IR 29 at 51; WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 712-714, (2000) 100 IR 64 at 75-76;; Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at [70]; Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 at [56]-[57].

6 In Lawrenson Diecasting the Full Bench at 475 observed: As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.

7 The objective features of an offence relate to the facts concerning that offence whereas the subjective features relate to facts concerning the offender. In holding that the primary factor to be considered is the objective seriousness of the offence the authorities have determined that what the offender did in breaching the terms of s 16(1) of the Act, for example, and the seriousness of the risk to health and safety thereby created, is of primary significance in evaluating the seriousness of the offence. Nevertheless, subjective features, if they exist, are an intrinsic part of any assessment of penalty and must be given appropriate weight in the sentencing process where they tend to mitigate the seriousness of the offence, unless subjective considerations became redundant because the objective features of the case warrant the imposition of the maximum penalty.

8 Sections 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 applies to the determination of any sentence imposed after 1 February 2003. Section 3A identifies the following purposes for which a court may impose a sentence on an offender: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

9 Section 21A identifies the aggravating and mitigating factors to be taken into account: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

10 Thus, it is the objective and subjective factual circumstances relating to an offence, including any of the prescribed aggravating and mitigating factors that are relevant and known to the court, which provide the basis for assessing the seriousness of the offence and the consequent penalty.

11 There are a number of considerations involved in determining the objective seriousness of the offence that is the subject of these proceedings. Firstly, the defendant was aware that the penetration cover on riser 4, level 6 had a sag in it and Mr Waitai-Tipene, a general foreman employed by the defendant and responsible for riser 4, regarded the penetration cover as "pretty unsafe". In giving instructions at a toolbox meeting on 21 March 2001 regarding the repair of the wall on level 6 adjacent to riser 4, Mr Waitai-Tipene assumed the consensus was that all of the repair work to the wall was to be undertaken from the scaffold inside the smoke shaft in accordance with his instructions. Accordingly, Mr Waitai-Tipene assumed that there was no danger of anyone falling through the compromised penetration cover on the other side of the wall. However, he took no proactive steps to actually identify, assess, control or eliminate any risks associated with the repair of the wall. Further, in the earlier judgment at [40] I observed: It is understandable that having discussed the method of undertaking the repair work and having decided that it was to be done from inside the smoke shaft, Mr Waitai-Tipene would not have expected any person to be in the vicinity of the penetration in riser 4, level 6 for the purpose of doing any of that repair work. Putting to one side for the moment the issue of fencing and safety harnesses, and taking in isolation the toolbox meeting on the morning of 21 March 2001, I do not consider the defendant could have been assured that the health and safety of persons would not be put at risk. Apart from an instruction given at the meeting that the work was to be carried out from within the smoke shaft, Mr Waitai-Tipene took no other steps to ensure the work would be carried out safely. Mr Waitai-Tipene usually dealt with Mr Peterson on such matters yet he undertook no follow up with Mr McMahon to ensure that the instructions had been clearly understood or that Mr McMahon was going to undertake the work in a safe manner. It would have been prudent of Mr Waitai-Tipene to at least require a work method statement in relation to the repair work.

12 Secondly, there was no adequate warning by the defendant to the injured worker, Mr Leadbitter, of the risk to injury in relation to the entry and/or work in, on or around penetration areas for riser 4 on 21 March 2001.

13 Thirdly, the defendant failed to maintain a strict practice and policy regarding safety fencing. Fourthly, the defendant conceded its responsibility for conducting site inductions and its responsibility regarding occupational health and safety. However, although the defendant knew the penetration covers were not designed to carry a person's weight, no training or instruction was given to Mr Leadbitter to avoid walking on penetration covers. The defendant had an obligation to inform Mr Leadbitter that penetration covers, in any condition, were not designed to carry his weight and that he was not to walk on them, in particular the covers on riser 4 at levels 5 and 6; this the defendant failed to do.

14 Fifthly, at [101]-[102] of the earlier judgment, in relation to the defendant's failure to supervise, I found as follows: The fact was that beyond giving instructions as to how the repair work was to be carried out in the smoke shaft, there was no further supervision by the defendant of the work. Mr Waitai-Tipene made no inquiry of Mr McMahon about any of the safety requirements that had to be observed. This was notwithstanding the fact that the hole in the wall that Mr Leadbitter was to repair was not only large enough for him to climb through (otherwise Mr Hopson would not have needed to tell Mr Leadbitter not to "come out" after he removed the work platform) but the hole was immediately adjacent to the compromised penetration cover that Mr Waitai-Tipene considered to be unsafe. 102 The requirement that a worker stand atop a scaffold extending three stories high to repair a hole in a wall adjacent to a structurally compromised penetration cover was potentially dangerous and a real risk to health and safety. The manner in which such work was to be carried out, in my opinion, required careful thought and planning and adequate supervision, especially in relation to safety aspects. The evidence reveals that Mr Waitai-Tipene articulated nothing about safety measures at the toolbox meeting and took no further steps to supervise the work.

15 It is also appropriate to have regard to the degree of foreseeability in assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 at [81]; Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27.

16 In the earlier judgment at [108] I stated that: 108 It does not seem to me that in considering whether a risk to health and safety was reasonably foreseeable that the precise nature of the risk needs to be foreseeable, as the defendant appears to contend. I do consider, however, that if a safe means to work in a penetration area is not provided, if proper warnings are not given to workers such as Mr Leadbitter about the danger of falling through penetration covers, if adherence to appropriate safety fence policies are not strictly observed and applied and if there is no adequate training and supervision in relation to the risk of falling in a penetration area, then it is reasonably foreseeable that a worker may be injured or killed unless appropriate precautions are taken.

17 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident are relevant to assessing the seriousness of the offence in this case: Kembla Coal & Coke at 36. In the earlier judgment I stated at [107]: 107 In my opinion, it was reasonably practicable for the defendant to comply with the provisions of s 16(1) of the Act in respect of Mr Leadbitter on 21 March 2001 by: 1. providing a means of entry to and/or to work in, on or around penetrations areas to riser 4 on levels 5 and 6 that was safe and without risks to health by requiring an appropriate work method statement to be lodged, by advising that the penetration covers were not safe to walk on and by providing specific instructions not to enter the penetration areas on levels 5 and 6 unless wearing a safety harness; 2. providing proper and/or adequate warning regarding the risk of injury in relation to the entry and/or work in, on or around the penetration areas of riser 4 on levels 5 and 6; 3. maintaining in a condition that was safe and without risk to health safety fences to the penetration areas of riser 4 on levels 5 and 6 by implementing a strict policy, adequately policed, prohibiting the removal of safety fences under any circumstances without approval; 4. providing adequate and/or proper training to Mr Leadbitter in relation to the risk posed by walking on penetration covers, whatever their condition; 5. providing adequate and/or proper supervision of Mr Leadbitter in relation to the risks posed by the penetration areas on riser 4 at levels 5 and 6.

18 The relevant aggravating factors are that the defendant has a record of previous convictions and the injury caused by the offence was substantial: Crimes (Sentencing Procedure) Act, s 21A(2)(d) and (g). In relation to the previous convictions there were a number of such convictions in the Chief Industrial Magistrate's Court and one before the Commission in Court Session between 1985 and 1991. There was no details provided by the prosecutor regarding the nature of these offences but from the amount of penalty imposed it would appear the offences were not serious. Further convictions were recorded in 1996 relating to offences under s 15(1) and s 16(1), which attracted a fine (on appeal) of $175,000: WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Limited (1996) 85 IR 12. These last convictions related to serious breaches that occurred at the site of the Burrinjuck Dam near Yass in 1991 and 1992.

19 No further convictions have been recorded against the defendant, which is a large contractor, prominent in the building and construction industry, and which has been operating since 1933. This is a factor to be taken into account in considering the previous convictions.

20 The fact that the defendant has prior convictions means that the maximum penalty under the Act is $825,000.

21 As to the injury sustained by Mr Leadbitter, it cannot be described as anything but substantial. Mr Leadbitter was a young man just starting out in his chosen trade who is now missing one leg below the knee and who can no longer follow his trade. 22 The foregoing considerations indicate a serious offence. However, these considerations cannot be viewed in isolation and whilst there is no doubt the defendant is culpable, in assessing the degree of culpability other matters that are referred to in the defendant's submissions on sentence must be taken into account as follows: (a) Thiess was the construction manager for the site but did not have a direct contractual relationship with the employer of Mr Leadbitter, DJD Masonry Contractors Pty Limited (" DJD "), and did not directly supervise the work of Mr Leadbitter; (b) Thiess was not the exclusive entity on site responsible for occupational health and safety; (c) Thiess (through Mr Waitai-Tipene) coordinated a "tool box meeting" on the morning of the accident to discuss the manner in which the repair work was to be performed; (d) Mr McMahon from DJD attended the toolbox meeting; (e) It was apparent to all attendees at the toolbox meeting that the penetration cover adjacent to the wall was sagging, thereby making it unsafe to work in the vicinity of the penetration; (f) Thiess (through Mr Waitai-Tipene) instructed Mr McMahon that the repair work was to be conducted from inside the smokeshaft; (g) Thiess had a system for fencing on site, including the non-removal of fencing without approval of Thiess albeit that the Court concluded that the system was not strictly policed and was lax; (h) Thiess arranged for a safety inspection to be conducted on the morning of the accident, which included an inspection of fences on site (and, in particular, in riser 4), and the fences were in place (especially in riser 4); (i) Mr McMahon departed from the instruction concerning the manner of performing the repair work by pulling the fence on level 6 of riser 4 to one side, placing two timber needles across the penetration cover, walking onto the needles, handing across some cement, walking off the needles and leaving the needles in place; and (j) There was no evidence led that Thiess was aware of the departure by Mr McMahon from the instructions concerning the manner of performing the repair work.

23 It must also be said that this is not a case where the defendant had no safety procedures in place; clearly it did. To a significant degree the defendant's failures were caused by a failure to police its safety policies and procedures by ensuring other contractors complied. Moreover, DJD was a significant contributor to the risks to which Mr Leadbitter was exposed, and that is an important factor that cannot be overlooked in considering the defendant's culpability. Indeed, if the evidence in these proceedings had been apparent to the Court in the sentencing proceedings in relation to DJD, in all likelihood the penalty imposed on DJD would have been significantly higher. 24 It is clear from the Full Bench's consideration in Capral Aluminium that general deterrence is a major consideration in occupational health and safety cases but I do not consider the Full Bench was suggesting it should be allowed to override, to an impermissible degree, the offender's favourable subjective circumstances, particularly that the defendant is unlikely to re-offend: R v Jenkins [1999] NSWCCA 110 at [38] per Simpson J.

25 The construction industry is a notoriously dangerous industry and prosecutions in that industry under the Occupational Health and Safety Act, many of which involve falling from heights, continue to constitute a significant proportion of the cases coming before the Commission in Court Session. There is a strong case for including an element in the penalty in this case for general deterrence.

26 Specific deterrence is directed towards deterring the offender personally from repeating any crime that has been committed. Despite the earlier offences, the last being committed some 12 years ago, there is no suggestion that the defendant is an habitual offender. Moreover the defendant took prompt and appropriate steps to avoid a re-occurrence of the circumstances that led to the charge being laid against it and it is evident from the affidavit of Ray Dennis Miranda, former Occupational and Environmental State Manager employed by the defendant, that the defendant has a strong commitment to ensuring the health and safety of its 8,000 strong workforce. This is reflected in the policies, procedures and practices it has in place in that respect. I do not propose to include in any penalty a significant element for specific deterrence.

27 There are a number of subjective features that are relevant in considering an appropriate penalty. I have already referred to the defendant's occupational health and safety policies, practices and procedures. These are commendable and I accept Mr Miranda's evidence that "Thiess has been acknowledged as an industry leader in the area of OH&S and has been at the forefront of best practices in OH&S."

28 The defendant is a large employer operating in a dangerous industry. It has been in operation since 1933 and despite the convictions in the early nineties, it could not be said to have a bad record.

29 Thiess provided monetary assistance to Mr Leadbitter following the accident and expressed profound regret for the events of 21 March 2001 and their consequences. Additionally, I consider the following mitigating factors prescribed by s 21A(3) of the Crimes (Sentencing Procedure) Act may be taken into account: (f) the offender was a person of good character; (g) the offender is unlikely to re-offend; (h) the offender has good prospects of rehabilitation; (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner.

30 The defendant submitted its culpability ought to be considered in the context that the breach of occupational health and safety did not rest solely on its shoulders but also falls on the shoulders of DJD and Mr McMahon. Reference was made to what the Court said in its earlier judgment at [27]: The action of Mr McMahon in removing the fence and placing two 100mm x 100mm timber beams to access the hole in a wall without a safety harness was a foolish action and seriously jeopardized his own safety and at [28]: Not only was Mr McMahon's action foolish but also it was reprehensible. By leaving extra cement on level 6 Mr McMahon should have realized that Mr Leadbitter intended to use it and that in doing so he would most likely access the wall in the same way Mr McMahon had - across the timber beams.

31 It was also submitted it was appropriate to consider that: (a) Mr McMahon was acting as the supervisor of Mr Leadbitter at the time of the incident; (b) The timber needles were never intended to be placed over the penetration; (c) Mr Leadbitter thought that Mr McMahon approved of him working on the timber needles; and (d) Mr Leadbitter followed the lead of Mr McMahon.

32 It was submitted that against this background, DJD and Mr McMahon had a greater level of culpability in relation to the incident than Thiess. DJD pleaded guilty to a breach of s 15(1) of the Occupational Health and Safety Act and was fined by the Court a sum of $81,250. The Court assessed the penalty, after considering the nature and quality of the offence but prior to subjective matters, as $125,000.

33 Both DJD and Thiess contributed to the circumstances leading to the accident on 21 March 2001 and because of that it is appropriate to view the question of an appropriate penalty in relation to Thiess in light of the penalty imposed on DJD. But in doing so it cannot override the primary consideration of the objective seriousness of the offence committed by Thiess. Moreover, there are other relevant considerations, including DJD's plea of guilty and the fact that the maximum penalty in respect of DJD was $550,000, whereas in the case of Thiess it is $825,000.

34 Having regard to all of the matters I have referred to I consider that an appropriate penalty in this case is $100,000.

35 The Court makes the following orders: 1) A verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $100,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay 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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