Inspector Yeung v Thiess Pty Ltd - [2004] NSWIRComm 96 - NSWIRComm 1994 case summary — Zoe

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Inspector Yeung v Thiess Pty Ltd

[2004] NSWIRComm 96

Industrial Relations Commission (NSW)|1994-03-10|Before: Boland J, Fisher CJ, Peterson JJ, Cullen JJ, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1994-03-10

Before

Boland J, Fisher CJ, Peterson JJ, Cullen JJ, Mr J

Source

Original judgment source is linked above.

Judgment (45 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 PROSECUTOR Inspector Thomas Yeung PARTIES : DEFENDANT Thiess Pty Ltd FILE NUMBER: IRC 2887 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 16(1) of the Occupational Health and Safety Act - Construction industry Apprentice - Fall resulting in amputation of limb - Relative culpability - Plea of not guilty - Conviction recorded - Penalty imposed LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 1983 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Independent Cargo & Wool Services Pty Limited v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT92/1041, 10 March 1994) Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) Inspector Mauger v P Ward Civil Engineering Pty Limited (unreported, Fisher CJ, CT94/1212, 21 December 1995) CASES CITED : Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 Inspector Yeung v Thiess Pty Ltd [2003] NSWIRComm 325 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 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 R v Jenkins [1999] NSWCCA 110 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700, 100 IR 64 WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Limited (1996) 85 IR 12 WorkCover Authority of NSW v Waugh (1995) 59 IR 89 HEARING DATES: 03/29/2004 DATE OF JUDGMENT: 04/20/2004

[18]

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.

[20]

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.

[30]

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.