Industrial Relations Commission of New South Wales
in Court Session
[2]
CITATION : Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239
APPELLANT:
PARTIES : Mainbrace Constructions Pty Limited
RESPONDENT:
WorkCover Authority of New South Wales (Inspector Stephen Charles)
FILE NUMBER: IRC 1780 of 2000
CORAM: Wright J President; Hungerford J; Boland J
CATCHWORDS : Occupational Health & Safety - Appeal against conviction and sentence - Offences under s 16(1) of the Occupational Health and Safety Act 1983 - Elements of s 16(1) - Meaning of place of work - Whether "at the employer's place of work" in s 16 (1) includes means of access to the place of work - s 53 defence - Application of parity and consistency principles - Appeal dismissed
Criminal Appeal Act 1912 s 5AA(1)
Factories Shops and Industries Act 1962 s 40
LEGISLATION CITED : Health and Safety at Work etc. Act 1974 (UK) s 3
Industrial Relations Act 1996 s 196
Occupational Health and Safety Act 1983 s 4 s 15(1) s 15(2) s 16(1) s 17 s 53
Australian Iron and Steel Pty Ltd v Luna (1969) 123 CLR 305
Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363
Butler v Fife Coal Co [1912] AC 149
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29
Channon v The Queen (1978) 20 ALR 1
Clarke v W C Meinhardt and Partners Pty Ltd (unreported, Fisher CJ, 30 June 1992)
Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432
Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149
Page v Woolworths Ltd (unreported, Peterson J, CT93/1044, 9 September 1994)
Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428
Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSW IRComm 240
Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40
CASES CITED : Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Lowe v The Queen (1984) 154 CLR 606
Postiglionie v The Queen (1997) 189 CLR 295
R v Associated Octel Co Ltd [1996] 1 WLR 1543
R v Henry (1999) 46 NSWLR 346
R v Stahl [1999] NSWCCA 160
Rice v Henley (1914) 19 CLR 19
Shepherd v The Queen (1990) 170 CLR 573
Sydney County Council v Coulson (1987) 21 IR 477
Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326
WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80
WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/as Boral Asphalt (2000) 98 IR 246
WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (unreported, Walton J, Vice President, IRC 97/4732, 4733, 19 October, 1999)
WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251
HEARING DATES: 08/30/2000; 08/31/2000
DATE OF JUDGMENT:
12/07/2000
[3]
APPELLANT:
Mr G J Parker of counsel
Solicitor:
Mr D Sun
Eakin McCaffery Cox
LEGAL REPRESENTATIVES:
RESPONDENT:
Ms P E McDonald of counsel
Solicitor:
Mr S Pertsinidis
WorkCover Authority of New South Wales
[4]
JUDGMENT:
1 -
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
IN COURT SESSION
[5]
CORAM : WRIGHT J, President
HUNGERFORD J
BOLAND J
[6]
Matter No IRC 1780 of 2000
MAINBRACE CONSTRUCTIONS PTY LIMITED v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR STEPHEN CHARLES)
[7]
Appeal against decisions of Justice Kavanagh given on 13 October 1999 and 29 March 2000 in Matter No. IRC 608 of 1998.
[8]
JUDGMENT OF THE COURT
[2000] NSWIRComm 239
1 This is an appeal pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA (1) of the Criminal Appeal Act 1912 by Mainbrace Constructions Pty Limited from two judgments of Kavanagh J in Matter No IRC 608 of 1998. The first judgment of her Honour, handed down on 13 October 1999, related to liability of the appellant for an offence under s 16(1) of the Occupational Health and Safety Act 1983. The second judgment, subsequently handed down on 29 March 2000 ([2000] NSWIRComm 36), related to the sentence for the offence.
2 The proceedings before Kavanagh J concerned a prosecution brought by Stephen Charles, an inspector of the WorkCover Authority of New South Wales, for a breach of s 16(1) of the Occupational Health and Safety Act.
3 The prosecution arose from an incident that occurred on 5 March 1996 when a trafficable suspended ceiling, on which the three persons named in the summons were standing, collapsed. The three persons, who each suffered injuries to varying degrees as a result of the collapse, were electrical workers employed by Kennedy-Taylor (NSW) Pty Limited. Kennedy-Taylor had been subcontracted by the appellant to carry out electrical work at the premises of Chisholm Manufacturing, a division of Woolworths Limited. The appellant, in turn, had been contracted by Pinnacle Pacific Pty Limited, the project manager appointed by Chisholm, to carry out building renovation work on sections of a meat processing facility which was owned and occupied by Chisholm at Blacktown in the State.
4 Kavanagh J described the nature of the construction work and the events leading up to the collapse of the ceiling in her first judgment. Relevant extracts are as follows:
Inspector Charles gave evidence that on the premises a large meat processing factory operated. The Hanging Area measured approximately 10 metres x 6 metres. The room was made of sandwich cool room panels with foam inserts, which lined the walls and ceiling. The ceiling was approximately 6 metres above ground level.
Inspector Charles on his first visit saw the ceiling at the northern end of the Hanging Area had collapsed. Five sandwich ceiling panels were on the ground. He observed electrical wiring at ceiling height. Three further ceiling sandwich panels which had collapsed were resting on a metal structure which was connected to horizontal 'I' beams, within the Hanging Area.
The demolition and construction included improvements to a room known as "Cellar Processing", which adjoins the Hanging Area, separated by a wall at the northern end of the Hanging Area. Owing to the headroom required to install a new loading machine in the Cellar Processing Room and the construction of new Cool Rooms, the old wall between the Hanging Area and Cellar Processing Room was removed in early February, 1996. For hygienic reasons, before the old wall was removed, a Dust Suppression Wall (the dust wall) was erected about 1.2 metres away from the northern wall, within the Hanging Area.
Mainbrace, in accordance with a variation to the original contract, sub-contracted another company, Thermal Insulations Pty Ltd, to construct the new northern wall between the Hanging Area and Cellar Processing Room, comprising new 150 mm thick sandwich wall panels.
The dust wall was made of sandwich ceiling panels. It was designed and erected and removed by Mainbrace. It was never intended that the dust wall be a load bearing wall. It was erected to prevent dust and other material entering the Hanging Area where the meat processing continued to be conducted throughout the demolition and construction process. The dust wall was connected to the existing trafficable ceiling and floor of the Hanging Area by aluminium angle irons (50 mm x 50 mm) between the ceiling and dust wall. In addition, silicone sealant was applied between the gap which was approximately 12-15 mm between the top of the dust wall and the existing ceiling panels.
Approximately 1 hour before the accident, Mainbrace, through Mr Doring, the site manager for Mainbrace, directed its employees to remove the dust suppression wall in the Hanging Area. In accordance with common practice in the industry acrow props were used to support the suspended ceiling as the dust wall was removed. Mainbrace did not inform other companies' workers on site especially workers from either Thermal Insulations or Kennedy-Taylor prior to the collapse that they were taking the dust wall down.
Although, the Hanging Area was not an area where original construction was taking place, it was necessary for many tradespersons involved in the conduct of normal business and in the construction to use the ceiling above this area as a means of access and egress to their work areas. It was being used on 5 March 1996 as an access area to an electrical site by the injured electrical workers at the time of the accident in accordance with a task allegedly arising out of a variation to the contract.
Immediately prior to the accident, Mr Ruttiman, Mr Smith and Mr Tillet entered the suspended ceiling area to inspect electrical wiring on the northern wall. They climbed the access stairs to the ceiling. In the area of the stairs was a warning sign which said:
WARNING
- ACCESS AREAS INDICATED BY MARKINGS MAX. LOAD NOT TO EXCEED 110kg at 1.2m SPACING OTHER AREAS NOT TO EXCEED 1 MAN + 20kg/PANEL
At some stage, when is not clear from the evidence, but prior to accessing the ceiling, Glenn Smith, foreman for Kennedy-Taylor, was advised by Mr Doring, foreman for Mainbrace, to ask a tradesman employed by Chisholm Manufacturing on the site how to access the ceiling for the removal of electrical fixtures on the northern wall. He was advised by the Chisholm worker to stay close to the edges of the roof near a wall support or close to the suspension chains where there was more support when he travelled along the ceiling. Mr Smith had been into the ceiling prior to the day of the accident to disconnect the thermostats from the old wall. When the three men entered the roof area, they spaced themselves at approximately 2 metre distances from each other and were standing on separate ceiling panels at the time of the collapse. All three men were standing on the ceiling within 1 to 3 metres of the newly erected northern wall of the Hanging Area. They had only been standing on the ceiling for some minutes when it collapsed.
The panel Mr Smith was standing on was the first to collapse followed quickly by the panels that Mr Tillet and Mr Ruttiman were standing on. None of the three men were carrying any equipment at the time of the accident. Their weight at the time was estimated at: Mr Smith 83-84 kgs, Mr Tillet 70kgs approx and Mr Ruttiman 83-84kgs.
Summons
5 The summons alleged:
That the defendant, Mainbrace Constructions Pty Ltd, did fail to ensure that persons not in its employ in particular Erwin Ruttiman, Glen Smith and David Tillet were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, in particular Mainbrace failed:
(a) to provide or maintain a means of access to and egress from designated construction areas via means of the trafficable suspended ceiling over the Hanging Area, that was safe and without risk to health.
(b) to conduct any, or any adequate risk assessment of the structural integrity of the trafficable suspended ceiling above the Hanging Area, and of the potential effects upon such integrity of the construction and removal of the dust suppression wall.
(c) to instruct all persons engaged in construction works at the site that the suspended ceiling above the Hanging Area was not to be entered or used as an access way until its structural integrity for such purposes was adequately assessed.
(d) to notify employees of Thermal Insulations Pty Ltd and Kennedy-Taylor (NSW) Pty Ltd, of the demolition of the dust suppression wall which had been erected in the Hanging Area, and of the potential effect of this on the structural integrity of the trafficable suspended ceiling in the Area.
(e) to prevent persons from entering the trafficable suspended ceiling over the Hanging Area or to warn of the danger of ceiling collapse, once it had been notified of sagging in the said ceiling.
(f) to ensure aluminium angle for support of the said new wall and suspended ceiling in the Hanging Area was adequately riveted prior to allowing persons access to the trafficable suspended ceiling.
(g) to ensure that the said temporary dust suppression wall which provided partial support to the suspended ceiling in the Hanging Area was not removed until adequate alternative measures were in place to support the ceiling.
6 The appellant pleaded not guilty. Her Honour found, however, that the prosecution had made out particulars (a), (b), (c), (d), (e) and (g) and found the offence proven.
7 In her subsequent judgment relating to sentence, Kavanagh J imposed a fine of $100,000. In doing so, she applied the principle of parity between the appellant and Kennedy-Taylor, who had also been prosecuted and found guilty by her Honour in relation to the same incident arising out of the same factual circumstances but under s 15(1) of the Occupational Health & Safety Act in Matters Nos IRC 605, 606 and 607 of 1998.
8 Kennedy-Taylor also appealed from the judgment by Kavanagh J going to liability. The Court's decision relating to the Kennedy-Taylor appeal and its implications for the decision in this appeal are addressed later in this judgment.
Approach on appeal
9 This being an appeal under the combined operation of s 196 of the Industrial Relations Act and s 5AA(1) of the Criminal Appeal Act, leave is not required and the appeal is to be by way of re-hearing on the evidence and not by way of a hearing de novo: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [2000] NSWIRComm 71, (2000) 99 IR 29; Warman International Ltd v WorkCover Authority of New South Wales (Inspector AnKucic) (1998) 80 IR 326 at 331, 339. In Capral Aluminium the Court (Wright J, President, Walton J, Vice President, and Kavanagh J) stated at para 17:
The present appeal is an appeal as of right: see s 5AA(1) of the Criminal Appeal Act and s 196 of the Industrial Relations Act . The approach to be adopted in an appeal under those provisions is now settled. Section 5AA(3) of the Criminal Appeal Act provides that an appeal brought under that section shall be "by way of rehearing on the evidence … given in the proceedings before the Supreme Court in its summary jurisdiction." This provision has been considered in a number of judgments of the Court of Criminal Appeal and its application in this jurisdiction has been considered in a number of judgments of Full Benches of this Court. The Full Court hearing the appeal is not determining whether the trial judge fell into error, but is independently determining the appropriate conviction and sentence. In NSW Sugar Milling Co-Operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6 at 11, Enderby J (with whom Hunt CJ at CL and Allen J agreed) stated:
"… it has to be borne in mind that it is not a question for this Court of whether or not his Honour erred in making the findings he made, but whether this Court is independently of the same opinion as his Honour."
An appeal brought under s 5AA is not a hearing de novo and new evidence may be adduced only with leave of the Court: s 5AA(3A). Nonetheless, the appeal court must consider afresh the ultimate issue to be determined.
10 We respectfully adopt and follow the approach of the Full Bench in Capral Aluminium.
Elements of section 16(1) of Occupational Health & Safety Act
11 Section 16(1) provides:
Every employer shall ensure that persons not in the employer's employment 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.
12 In Inspector Page v Woolworths Ltd (unreported, CT93/1044, 9 September 1994), Peterson J, correctly in our view, identified four elements the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s 16(1). These we paraphrase as follows:
The defendant was an employer;
there were persons not employees exposed to risks to their health or safety;
the risk arose from the conduct of the defendant's undertaking; and
the exposure to risk was at the defendant's place of work.
Appellant an employer
13 In the present proceedings, the first element was admitted by the appellant. In Exhibit 1 in the proceedings before her Honour it was indicated that amongst the matters admitted by the appellant were:
"3. On 5 March 1996 the defendant was an employer."
Persons not employees exposed to risks
14 In relation to the second element, it was admitted by the appellant that "On 5 March 1996 Erwin Ruttiman, Glenn Smith and David Tillet were persons who were not in the defendant's employment." Additionally, the evidence reveals that employees of Chisholm and employees of contractors other than Kennedy-Taylor performed work from time to time in the ceiling space above the Hanging Area. This aspect, together with the question of exposure to risk, is addressed more fully in relation to the third and fourth elements of the offence.
Risk arose from conduct of appellant's undertaking
15 Under the third element, the prosecution is required to prove that:
(a) the defendant was conducting an undertaking; and
(b) a risk arose from this undertaking.
16 In Exhibit 1 in the proceedings before her Honour it was admitted by the appellant that "On 5 March 1996 and at all material times, the defendant's undertaking was as a principal building contractor for the renovation of part of a meat processing facility at the said (Chisholm's) premises."
17 In the proceedings below there was considerable focus on the presence in the ceiling of the three Kennedy-Taylor employees at the time of the accident and the purpose of them being there. Mr G J Parker, counsel for the appellant, submitted, in effect, that the employees were not in the ceiling as part of the conduct of the appellant's undertaking. In other words, the appellant submitted that if it could not be shown that the employees of Kennedy-Taylor were using the trafficable ceiling as part of the conduct of its undertaking at the time of the accident then the third element of the offence could not be made out.
18 In considering this aspect of the appellant's case, the relevant facts would appear to be as follows:
(a) Chisholm owned and occupied the premises where the risks to health or safety were alleged to have arisen.
(b) Chisholm contracted Pinnacle Pacific Pty Limited to act as the Project Manager in the renovation of the premises.
(c) The appellant was contracted to undertake building construction work in respect of part of the premises. This included the construction of a cool room, the demolition and re-construction of the northern wall in the Hanging Area and the construction and dismantling of a dust suppression wall.
(d) According to the evidence of Jeffrey Robert Hill, who was the Project Manager for Pinnacle Pacific the appellant was responsible for the day to day management of the site. Exhibit 11, which was admitted without objection, described the appellant as "the principal contractor" and that as such "Mainbrace is responsible for safety and Vikool must comply with the site safety requirements and mainbraces (sic) direction in this matter." Telephone listings in Exhibit 11 refer to the appellant under the heading "Builder" as "Head Contractor".
(e) The appellant subcontracted certain electrical work to Kennedy-Taylor. Due to the initially unforeseen need to demolish the whole of the northern wall and to erect a new wall, a variation to the contract between the appellant and Kennedy-Taylor was agreed. This variation required Kennedy-Taylor to remove cable trays and disconnect a number of thermostats attached to the old northern wall. This was done approximately one month prior to the collapse of the ceiling. Cable trays were then re-attached to the new northern wall by an employee or employees of Kennedy-Taylor at sometime prior to 5 March 1996.
(f) Kennedy-Taylor had also contracted, independently of the appellant, with Chisholm to undertake certain electrical work.
(g) The three employees of Kennedy-Taylor referred to in the summons, entered the ceiling area about 3.30 pm on 5 March 1996 to make a visual inspection of the new northern wall for the purpose of re-connecting the thermostats. While standing on the ceiling it collapsed.
(h) The appellant did not control access to the ceiling space. Access to that space was via a permanent ladder in a plant room controlled by Chisholm.
(i) Putting aside the question of the re-connection of the thermostats, the appellant was not required to undertake any work in the Hanging Area underneath the collapsed ceiling as part of its contract and was not required to undertake any work in the ceiling space above the Hanging Area.
19 The issue comes down to whether the re-connection of the thermostats to the newly erected northern wall was part of any contract or arrangement between the applicant and Kennedy-Taylor, and whether the three employees were in the ceiling space pursuant to that requirement.
20 It seems to us that if the appellant, under a contract or some other arrangement, was required to demolish and re-construct the northern wall and in doing so found it necessary to remove and re-attach thermostats, even though the work relating to the thermostats was required to be done by a specialist contractor, that work formed part of the appellant's conduct of its undertaking.
21 In R v Associated Octel Co. Ltd [1996] 1 WLR 1543 the appellant operated a chemical plant. During an annual shut down of the plant for maintenance and repair the task of repairing the lining of a tank within the chlorine plant was entrusted to an independent contractor. One of the contractor's employees was badly burned during the process. The appellant at first instance was convicted under s 3 of the Health and Safety at Work etc. Act 1974 (UK) of failing to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who might be affected thereby were not exposed to risks to their health and safety. The appellant appealed and the Court of Appeal dismissed the appeal. On appeal to the House of Lords it was held that what had to be determined was whether the activity in question was part of the employer's undertaking at its plant to have the chlorine tank repaired; but that that was a question of fact and should have been left to the jury, though in the circumstances a properly instructed jury would have undoubtedly convicted.
22 Lord Hoffmann delivered the judgment of the House of Lords and at 1547-1548 said:
The question, as it seems to me, is simply whether the activity in question can be described as part of the employer's undertaking. In most cases, the answer will be obvious. Octel's undertaking was running a Chemical plant at Ellesmere Port. Anything which constituted running the plant was part of the conduct of its undertaking. But there will also be ancillary activities such as obtaining supplies, making deliveries, cleaning, maintenance and repairs which may give rise to more difficulty. In Reg. v. Mara [1987] 1 W.L.R. 87, 90-91, Parker L.J, said this about the cleaning of a factory:
"A factory, for example, may shut down on Saturdays and Sundays for manufacturing purposes, but the employer may have the premises cleaned by a contractor over the weekend. If the contractor's employees are exposed to risks to health or safety because machinery is left insecure, or vats containing noxious substances are left unfenced, it is, in our judgment, clear that the factory owner is in breach of his duty under section 3(1). The way in which he conducts his undertaking is to close his factory for manufacturing purposes over the weekend and to have it cleaned during the shut down period. It would clearly be reasonably practicable to secure machinery and noxious vats, and on the plain wording of the section he would be in breach of his duty if he failed to do so."
I entirely agree and I draw attention to the language used by the judge. It is part of the conduct of the undertaking, not merely to clean the factory, but also to "have the factory cleaned" by contractors. The employer must take reasonably practical steps to avoid risk to the contractors' servants which arise, not merely from the physical state the premises (there are separate provisions for safety of premises in section 4), but also from the inadequacy of the arrangements which the employer makes with the contractors for how they will do the work.
Likewise in the present case I think that it was part of the conduct of Octel's undertaking at Ellesmere Port to have the chlorine tank repaired.
23 Further, at 1549 his Lordship said:
……. the question of whether an employer may leave an independent contractor to do the work as he thinks fit depends upon whether having the work done forms part of the employer's conduct of his undertaking. If it does, he owes a duty under section 3(1) to ensure that it is done without risk - subject, of course, to reasonable practicability, which may limit the extent to which the employer can supervise the activities of a specialist independent contractor.
24 Mr Parker submitted that the only evidence relating to a contract between the appellant and Kennedy-Taylor about electrical work on the northern wall was a variation of the original contract between it and Kennedy-Taylor that went to the removal of cable trays and the disconnection of the thermostats; but there was no evidence the variation required Kennedy-Taylor to re-connect the thermostats and replace the cable trays. That being the case, Mr Parker submitted, the re-connection of the thermostats was not part of the conduct of the appellant's undertaking.
25 Kavanagh J rejected the proposition that "it was a Mainbrace undertaking to disconnect the thermostats but not a Mainbrace undertaking to re-connect them." Her Honour held that re-connection of the thermostats was part of the contract between the appellant and Kennedy-Taylor.
26 Ms P E McDonald of counsel, for the respondent, conceded that the evidence did not reveal there was any express instruction that the thermostats were to be re-connected but submitted that re-connection was an integral or implicit part of the work contracted by Kennedy-Taylor with the appellant. Counsel submitted that it was not necessary to prove this implied term beyond reasonable doubt because it was merely an individual item of evidence - a building block towards establishing one of the essential elements of the offence: Shepherd v The Queen (1990) 170 CLR 573. Ms McDonald submitted that it was properly open to the Court to draw the inference that re-connection was an implied term of the contract between the appellant and Kennedy-Taylor.
27 It does not seem to us that re-connection of the thermostats was a term necessary for the effective operation of the contract between the appellant and Kennedy-Taylor or that it was a term that "goes without saying": BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266. In other words, because Kennedy-Taylor disconnected the thermostats on the appellant's instructions it does not necessarily follow that re-connection was part of the contract. On the evidence, it could have been a matter for Chisholm to direct Kennedy-Taylor to re-connect the thermostats. Accordingly, in the absence of reliable evidence to the contrary, we are unable to find that the re-connection of the thermostats was part of the conduct of the appellant's undertaking.
28 The second aspect that needs to be considered, however, in relation to whether the risk to safety arose from the conduct of the appellant's undertaking, concerns the demolition and re-construction of the northern wall and the erection and dismantling of the dust suppression wall. This work was unquestionably part of the conduct of the appellant's undertaking. Nevertheless, Mr Parker submitted that no risks arose from the conduct of that part of its undertaking.
29 The evidence established that the demolition and construction undertaken by the appellant included improvements to a room known as "Cellar Processing", which adjoined the Hanging Area, separated by a wall at the northern end of the Hanging Area. The old wall between the Hanging Area and Cellar Processing Room was removed in early February, 1996. For hygienic reasons, before the old wall was removed, a Dust Suppression Wall was erected about 1.2 metres away from the northern wall, within the Hanging Area.
30 Mainbrace, in accordance with a variation to the original contract, sub-contracted another company, Thermal Insulations Pty Ltd, to construct the new northern wall between the Hanging Area and Cellar Processing Room, comprising new 150 mm thick sandwich wall panels.
31 The dust wall was made of sandwich ceiling panels. It was designed, erected and removed by Mainbrace. It was erected to prevent dust and other material entering the Hanging Area where the meat processing continued to be conducted throughout the demolition and construction process. The dust wall was connected to the existing trafficable ceiling and floor of the Hanging Area by aluminium angle irons (50 mm x 50 mm) between the ceiling and dust wall. In addition, silicone sealant was applied between the gap which was approximately 12-15 mm between the top of the dust wall and the existing ceiling panels.
32 Mr Peter Doring was the foreman for the appellant at the site. He was aware that work was being performed from time to time by a variety of persons in the ceiling space above the Hanging Room. He had been in the ceiling space on a number of occasions prior to 5 March 1996. Mr Doring had noticed "a lot of condensation, a lot of leaking pipes, drip trays … moisture on panels" and that moisture from pipes was leaking "onto the drip trays or onto the ceiling panels." Mr Doring had also been informed by Mr Smith, the foreman for Kennedy-Taylor on the site, that chains connecting ceiling panels to the roof were loose.
33 There was other evidence which led Kavanagh J to find that the state of the ceiling was "appalling" and, indeed, the appellant conceded that the ceiling was "inherently unsafe".
34 Mr Doring appears to have taken the view that, regardless of whether the ceiling was safe or unsafe, it was not an area in respect of which he or his employer had any responsibility and he therefore took no action to ensure that it posed no risks to health or safety.
35 We note, however, in demolishing the northern wall, angle iron connecting the ceiling to the old wall had to be removed and, once the new wall was in place, the angle iron would have to be re-attached to the new ceiling and the new wall. This occurred except for one of the angle irons that could not be attached because of the presence of the dust suppression wall. It appears, therefore, that between the time after the demolition of the old northern wall and the re-fixing of angle irons to the new northern wall, the ceiling was supported by suspension chains from the roof and, according to evidence, by the dust suppression wall.
36 Whilst the evidence was that the dust suppression wall was not designed to be a load bearing wall, Mr G Henry, a consulting structural engineer who was asked by the appellant to provide a report on the collapse of the ceiling, gave evidence that the dust suppression wall became load bearing during the period the ceiling was not connected to the northern wall. This came about because of the amount of work activity in the ceiling space and the equipment being used by workers.
37 On 5 March 1996 Mr Doring authorised the removal of the dust suppression wall. This followed what could only be described as a cursory inspection by him of the new northern wall. The appellant at best made no inquiry of its subcontractor, Thermal Insulations Pty Ltd who had erected the wall, as to whether the new northern wall was complete and safe and, at worst, if the evidence is to be accepted, took no action to properly assess the structural integrity of the ceiling despite being informed the day before by Mr Johnson, the foreman for Thermal Insulations, that the new northern wall had not been completely attached to the ceiling.
38 Importantly, prior to the removal of the dust suppression wall, acrow props were put in place to support the ceiling. Once the dust wall was removed the acrow props were "removed slowly to see if there was a sag in the ceiling." It appears from the evidence that the purpose of the acrow props was directed to safety and to ensure that the transfer of weight from the dust wall to the northern wall took place in a controlled manner.
39 Although it may have been the case that the acrow props were not put in place to support the ceiling, it is clear from the very fact they were used there was a potential, with the removal of the dust wall, that the ceiling might sag. Indeed, that is what the workers were looking for as they slowly removed the props. No sag appeared until a short time later after the workers had finished their task.
40 The situation in the period immediately prior to the collapse of the ceiling, as we view it, was this:
· Mr Doring knew that, from time to time, persons performed work in the ceiling space above the Hanging Area. These persons included employees of Chisholm and employees of Vikool, a refrigeration contractor in respect of whom according to Exhibit 11, the appellant had responsibilities in respect of safety.
· Mr Doring had been in the ceiling space a number of times prior to 5 March 1996. He observed the presence of a lot of moisture; Mr Smith had advised him of loose suspension chains. Nevertheless, whether Mr Doring regarded the ceiling space as safe or unsafe he apparently took the view that the space was not part of his employer's construction area and he took no action in respect of it.
· Acrow props were installed against the ceiling as part of the process of removing the dust wall. This was obviously a step taken in the interest of safety so that, if a problem developed in the ceiling as it came to rest on the northern wall, the props would prevent any collapse. To illustrate the risk involved, if the ceiling had commenced to sag immediately on the removal of the props no prior steps had been taken by the appellant to ensure that no persons were present in the ceiling and no steps were taken to warn persons not to enter the ceiling area while the dust wall and acrow props were being taken down.
· No steps were taken by Mr Doring to determine whether the new wall was properly attached to the ceiling and, therefore, safe other than a cursory visual inspection by him. To illustrate the risk involved, if the ceiling had not been attached, or properly attached to the new wall, no prior steps had been taken by the appellant to ensure that no persons were present in the ceiling and no steps had been taken to warn persons not to enter the ceiling area until it had been confirmed that ceiling and wall had been properly attached.
41 We consider that the risk to health or safety that arose from the conduct of the appellant's undertaking was that the construction work on and around the trafficable ceiling might adversely affect its structural integrity, leading to its collapse. Obviously, any person on or under the ceiling at the time of the collapse would be exposed to great risk. This risk was exacerbated by the work activity in the ceiling space and water being absorbed in the ceiling panels.
The appellant's place of work
42 Before dealing with the alleged failures as particularised in the charge it is convenient to consider the fourth element of the offence, namely, that the exposure to risk was at the appellant's place of work.
43 It was submitted by Mr Parker that on 5 March 1996 the ceiling space was not a place of work within the meaning of s 16(1) of the Occupational Health and Safety Act. The principal reasons put forward in support of this contention were that:
[9]
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.
there was no work being done or proposed to be done under any contractual arrangement involving the appellant in the ceiling space on 5 March 1996;
the ceiling space was outside the appellant's construction area;
Kavanagh J found the ceiling space to be a means of access to a work area. The words "at the employer's place of work" in s 16(1) are not capable of including a reference to the means of access to the place of work: Australian Iron and Steel Pty Ltd v Luna (1969) 123 CLR 305 at 308; and
the appellant did not control access to the ceiling space above the Hanging Area.
44 There are essentially two issues that arise for consideration here. The first is whether it can be said that the appellant's responsibility, insofar as its statutory duty under s 16(1) was concerned, extended to the ceiling space including the ceiling itself, notwithstanding the appellant's submission that the space was not part of its "construction area". The second is whether the trafficable ceiling was a means of access to a work area and, therefore, not a place of work within the meaning of s 16(1).
45 The term "place of work" is defined in s 4 of the Occupational Health and Safety Act to mean "premises, or any other place where persons work." Section 4 also provides that:
Premises includes -
(a) any land, building or part of any building;
(b) any vehicle, vessel or aircraft;
(c) any installation on land, on the bed of any waters or floating on any waters; and
(d) any tent or moveable structure.
46 Clearly, the ceiling space was "part of any building". Work was carried out in the ceiling space on a regular basis by, for example, Vikool Refrigeration, a specialist subcontractor to Chisholm and by employees of Chisholm. There was no contractual relationship between Vikool Refrigeration and the appellant. Kennedy-Taylor did have a contractual relationship with the appellant to perform electrical work but we were unable to find that the work of re-connecting thermostats - which led to the three employees of Kennedy-Taylor being in the ceiling space on 5 March 1996 - was part of the conduct of the appellant's undertaking.
47 Whilst no work was being carried out in the ceiling space under the direction or control of the appellant at the relevant time on 5 March 1996, we have referred to the effects on the ceiling of the work being carried out by the appellant in constructing the new northern wall and the removal of the dust suppression wall and acrow props. The conduct of the appellant's undertaking in this respect gave rise to risks to health or safety.
48 It is our view that the work carried out by the appellant so affected the ceiling and was in such proximity to it that the ceiling space, including the trafficable suspended ceiling, must be regarded as the defendant's place of work for the purposes of s 16(1). To place an interpretation on "place of work" by, for example, limiting it strictly within the lines on an architect's drawing or to the construction of a wall but not the ceiling to which it is attached and the space above it, would relieve the appellant of any liability in respect of any area in the "immediate environs" that may be affected by the acts or omissions of the appellant. Such an approach would, we believe, defeat the objects of the statute.
49 In WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 the Court (Wright J, President, Walton J Vice President, Hungerford J) said at 261:
The decided cases make it plain that the question of whether the "employer's place of work" ingredient in s 16(1) is made out is a question of fact notwithstanding any broad construction of the provision that is appropriate (see, for example, Inspector Clarke v W C Meinhardt and Partners Pty Limited (unreported, Fisher CJ, 30 June 1992) and Inspector Page v Woolworths Ltd ).
50 In Inspector Clarke v Meinhardt the question arose as to whether the public footpath and roadway onto which the facade of a city building collapsed were within the defendant's place of work. Fisher CJ held:
With respect to the duty under s 16(1) I consider the employer's conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed.
51 In Inspector Page v Woolworths Ltd (unreported, Peterson J, 9 September 1994) his Honour adopted the approach of Fisher CJ in Inspector Clarke v Meinhardt in opting for a broad construction of "place of work" in s 16(1) and referred to the "immediate environs which may be affected by the conduct of that business" as being included within the meaning of the term.
52 While each case will indeed be a question of fact, we consider that a broad construction of the term "place of work" in s 16(1), consistent with the approach of Fisher CJ and Peterson J in the cases cited, is also appropriate in this case.
53 The appellant's other objection to the finding by Kavanagh J that the ceiling space was a "place of work" was that this phrase as it is used in s 16(1) is not capable of including a reference to the means of access to the place of work; given that her Honour found that the trafficable ceiling was a means of access, it could not, at the same time, also be a place of work.
54 The appellant relied on observations by Barwick CJ in Australian Iron and Steel Pty Limited v Luna (1969) 123 CLR 305 at 308 where the Chief Justice said:
However, for my own part, whilst a means of access, may at other times in relation to some other items of work be a place at which that work is to be done, I am unable as at present advised to conceive a case where the same area or place is at the one time in relation to the item of work both the place at which such work is to be done and a means of access to that place.
55 Australian Iron & Steel v Luna was concerned with an interpretation of s 40 of the Factories, Shops and Industries Act 1962 (NSW) and, in the context in which they were made, the observation of Barwick CJ quoted above could not be said to be other than obiter. In any event, the Chief Justice was concerned with a distinction between "a place at which a person has at any time to work" and "the means of access to the place" in the context of the Factories, Shops and Industries Act 1962. Here, we are concerned with whether a "means of access to and egress from designated construction areas" was something separate and distinct from "place of work" within the meaning of s 16(1) of the Occupational Health and Safety Act.
56 Mr Parker also submitted that the obligation under s 16(1) was a limited one which was not to be equated to the employer's obligations to their employees under s 15 of the statute. The appellant submitted that the obligations under s 15(1) and the exemplars under s 15(2) ought not be incorporated into s 16(1).
57 Given the basis on which we have found that the ceiling space, including the trafficable suspended ceiling, was a place of work, we do not consider in this case that a distinction can or should be made between a "place of work" and a "means of access to or egress from designated construction areas". The trafficable ceiling was an integral part of the appellant's place of work for the purposes of s 16(1). It was "affected by the work being done" by the appellant and within "the immediate environs" of the conduct of the appellant's undertaking. The fact that it may also have been a walkway used by persons to gain access to a point at which they performed work in the ceiling space does not change its character from being part of a place of work. In the same way as Fisher CJ regarded the external scaffolding above the hoarding as part of the place of work in Inspector Clarke v Meinhardt, we regard the trafficable ceiling as part of the place of work the subject of these proceedings.
58 To adopt the interpretation put forward by the appellant, namely, that the words "place of work" in s 16(1) are not capable of bearing a construction to include "means of access to or egress from", would have the result of relieving an employer of any liability which would otherwise exist under s 16(1) if it could be shown that the subject persons, at the material time, were using a means of access to or egress from a location where they performed work. Moreover, if that place of work could not be said to be under the control of the employer then s 17 of the Occupational Health and Safety Act would also have no application. Section 15 would have no application because that section only deals with the obligations of employers to their own employees. No other section in the statute would have application.
59 The consequences of adopting the appellant's interpretation would be to create a significant loophole in the legislation which we do not consider can be justified.
60 It is clear that, in interpreting the obligations under s 16, the Court must take into account the purposes of the legislation. The basis of this approach was set out by Hungerford J in Kirkby v A & M I Hanson Pty Limited (1994) 55 IR 40 at 49-50 and applied recently by Hungerford J in WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Limited trading as Boral Asphalt (2000) 98 IR 246 at pars 18-19. In Kirkby, Hungerford J considered the question of general purpose and concluded in relation to s 16(1) at 49-50:
I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s 15(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ , with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: "Accident prevention is unquestionably one of the modern responsibilities of an employer." The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 309: "In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer.
It is my view that the nature of the duties, and hence the question of whether an employer has offended against s 16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179:
"The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable."
Again, and to a similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22:
"In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit."
61 We can see no basis in s 16, or in the statute read as a whole, for limiting the meaning of "place of work" as that term is used in s 16(1) to exclude a ceiling located within the place of work which also happens to have been used as a means of access to and egress from designated construction areas. To do so would, in our opinion, be inconsistent with the purpose of the legislation.
Failure to ensure persons not exposed to risks
62 We turn to consider the risks to health or safety and whether there was a failure by the appellant to protect persons not in its employment from those risks. In this connection, in Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 157 the Court (Bauer, Hungerford and Cullen JJ) said:
Sections 15 and 16 of the Occupational Health and Safety Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace.
63 The alleged "failures" of the appellant to ensure that persons not in its employment were not exposed to risks to their health or safety are set out in the particulars of the charge.
64 The essence of the allegation in particular (a) was that the appellant failed to provide or maintain the trafficable ceiling as a safe means of access and egress to "designated construction areas". We do not consider that it was necessary for the appellant to have control of the ceiling in order to provide or maintain a safe means of access and egress in the sense of being able to compel the occupier of the premises (Chisholm) to take certain actions. But, given the foreseeable consequences of the appellant's construction work in relation to the ceiling, the appellant had a duty to ensure traffic using the ceiling did so without risk.
65 The evidence was that the appellant paid no attention to the use of the ceiling as a means of access and egress and did nothing to ensure its safe use. This was despite the fact that the appellant was aware that persons "used the ceiling over the Hanging Area to get access to other parts of the plant for the purposes of doing work". The appellant took no steps "to find out whether there was anybody in the hanging area or the ceiling above before the dust wall was removed". Similarly, prior to the removal of the acrow props no steps were taken to determine whether there were persons using, or intending to use, the trafficable ceiling as a walkway; there was simply an assumption that this was the case. By not providing or maintaining the trafficable ceiling over the Hanging Area as a safe means of access and egress the appellant failed to ensure that persons not in its employment were not exposed to risks arising out of the construction work on or about the ceiling. Particular (a) is made out.
66 Particular (b) alleges a failure to carry out a risk assessment of the structural integrity of the ceiling and the potential effects upon such integrity of the removal of the dust suppression wall. Although there is no specific requirement in s 16(1) to carry out a risk assessment there is a strict duty on the employer to ensure that persons not in the employer's employment are not exposed to risks to health or safety. If one means of fulfilling this duty was to assess the risks to health or safety in the conduct of an undertaking then a risk assessment cannot be objectionable.
67 The evidence revealed, and Kavanagh J found, that the ceiling space was unsafe. It was cluttered with equipment, overloaded by traffic and overweighted with absorbed moisture. There were loose pipes, chains and brackets and a collection of debris dirt and dust. Mr Doring, the appellant's foreman, had been in the ceiling space on a number of occasions. The condition of the ceiling could not have escaped him. The warning signs of a potentially unsafe area must have been obvious to him. Notwithstanding the fact that the appellant's undertaking included the demolition of a wall that supported the ceiling, the appellant took no steps to assess how that whole undertaking might affect the integrity of the ceiling and whether there were any risks to persons above or below the ceiling.
68 In WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85 Hill J said:
This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.
69 Not only, it seems to us, was there no pro-active approach by the appellant but, even having been alerted to what might be a potentially unsafe area, the appellant did nothing about it.
70 With the removal of the angle irons attaching the old wall to the ceiling it appears that the ceiling did not collapse with the weight of water, workers and equipment because the dust suppression wall fortuitously had become load bearing. Mr Parker argued, in effect, that the existence of the dust wall and what role it may or may not have played in supporting the ceiling was irrelevant. This was because the appellant had restored the Hanging Room and ceiling to what it was prior to demolishing the northern wall except for one angle iron that Kavanagh J found was not causally connected with the consequent risk to health or safety. It followed, Mr Parker submitted, that the collapse of the ceiling could not be said to have been caused by the conduct of the appellant's undertaking in removing the dust wall.
71 This submission misconceives the issue. This is not an examination of what or who caused the ceiling to collapse. The issue is whether there was a failure on the part of the appellant to ensure that persons who were not its employees were not exposed to risks arising out of the conduct of the appellant's undertaking at its place of work.
72 We have found that the risk to health or safety that arose from the conduct of the appellant's undertaking was that the construction work on and around the trafficable ceiling might adversely affect its structural integrity, leading to its collapse. As we explain below, if there had been a proper and comprehensive risk assessment of the structural integrity of the trafficable suspended ceiling above the Hanging Area and of the potential effects upon such integrity of the construction and removal of the dust suppression wall, the risk would have been discovered and, in our view, remedial action could have been taken.
73 Mr Parker submitted that properly understood the evidence of Mr Henry, in particular, showed "that it was most unlikely that examination of the ceiling space would have revealed its likelihood of collapse." Given the nature of the risk, an adequate risk assessment would have encompassed much more than the ceiling space. An examination of the ceiling space would have at least revealed the presence of excessive water, with the prospect of it having been absorbed into the ceiling panels, thereby increasing the weight of those panels. To what extent might not have been evident, but a risk assessment would have at least raised the issue in the mind of the assessor. Further reflection on the state of the ceiling would have led to the realisation that with the work activity in the ceiling, the weight of workers and equipment would have placed even more stress on the capacity of the ceiling to cope with the additional load. Of course, a proper risk assessment would have also focused on the work associated with the demolition and re-construction of the northern wall - including the removal of the dust wall - and how it might affect the ceiling as a means of access and egress. This would have revealed that the ceiling would, for a period of time, be detached from the northern wall and, therefore, one of the main supports of the ceiling removed. It would also have revealed that the dust wall would necessarily become load bearing. Finally, it would have highlighted the need as an elementary safety precaution to ensure that there was no person in the ceiling at the time the dust wall and acrow props were removed and that no person entered the ceiling space until such time as it had been properly inspected to determine its safety.
74 It seems to us that, if after such a risk assessment had been carried out, the risk assessor asked himself or herself whether any action was required to ensure the safety of persons using the ceiling as a walkway the answer would inevitably have been "yes". We find that particular (b) is made out.
75 It follows, we think, that particular (c) is also made out, namely, a failure to instruct persons that the ceiling space above the Hanging Area was not to be entered or used as an access until its structural integrity had been adequately assessed. The appellant had submitted that there was no evidence that it had control over access to the ceiling space and, therefore, was not in a position to instruct persons not to enter the space. If an employer is conducting an undertaking and has a statutory duty to ensure that persons not in its employment are not exposed to risks to health or safety, that employer is under an obligation to stipulate whatever conditions are needed to avoid those risks. The employer cannot, having omitted to do so, say that he was not in a position to exercise control: R v Associated Octel Co. Ltd at 1547.
76 The evidence is that there were no instructions given to any persons that the ceiling space above the Hanging Area was not to be entered or used as an access way until its structural integrity had been adequately assessed. It appears that the appellant was not even aware of the risk. But it is not a matter whether the appellant was or was not aware. It is a matter of whether the appellant should have been aware: WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Limited (unreported, Walton J, Vice President, IRC 97/4732,4733, 19 October 1999). If the appellant had been aware, as it should have been, instructions not to use the trafficable ceiling until its safety was assured would have prevented the risk to safety arising.
77 Particular (d) alleged a failure to notify employees of Thermal Insulations and Kennedy-Taylor of the demolition of the dust wall and of the potential effect of this on the structural integrity of the ceiling. The evidence was that employees of Thermal Insulations worked exclusively in the Cool Room Area and were not concerned with the Hanging Area at any time. Further, there was no relevant connection between the appellant and Kennedy-Taylor on 5 March 1996 to the extent it could be said that employees of Kennedy-Taylor were part of the conduct of the appellant's undertaking. Apart from a general duty to instruct persons not to enter the ceiling space above the Hanging Area, there was no specific obligation on the appellant to notify employees of Thermal Insulations or Kennedy-Taylor. Particular (d) is not made out.
78 Particular (e) alleged a failure to prevent persons from entering the trafficable ceiling over the Hanging Area or to warn of the danger of the ceiling collapse, once the appellant had been notified of sagging in the ceiling. Kavanagh J found that once Mr Doring became aware of the sag he acted promptly in attempting to contact a person "who might know about the cool room ceilings to come and have a look at it." Her Honour, however, was critical of Mr Doring for making "no effort to ensure a check was made to determine if there were workers in the ceiling or to warn workers not to enter the ceiling. Such a basic precaution should have been entertained." We agree with her Honour. The appellant's conduct in failing to take immediate steps to prevent persons entering the ceiling or to warn of the danger of ceiling collapse, knowing that persons did enter the ceiling space from time to time only served to add to the risks to health and safety that were already present. At that point the appellant's paramount duty was to ensure the safety of persons not what was wrong with the ceiling. We find that particular (e) has been made out.
79 Kavanagh J found that the failure alleged in particular (f) to ensure aluminium angle for support of the new northern wall and ceiling in the Hanging Area was adequately riveted prior to allowing persons access to the ceiling was not made out. We agree that this particular was not made out.
80 Particular (g) alleged a failure to ensure the dust suppression wall which provided support to the ceiling in the Hanging Area was not removed until adequate alternative measures were in place to support the ceiling. Whilst it was said that the dust wall was not designed to be load bearing, the evidence was that it became so. It is difficult to believe that the appellant did not realise and accept that, indeed, the dust wall had become load bearing, because it had taken no other steps to support the ceiling while the northern wall was demolished and re-constructed and was well aware of the amount of activity and extra weight in the ceiling space. Further, as part of the process of removing the dust wall acrow props were put in place as a safety measure in case a problem developed as the new northern wall took the weight previously borne by the dust wall. Those props were then removed without any assessment of the structural integrity of the ceiling. The very fact that acrow props were used demonstrates a lack of certainty about the structural integrity of the ceiling and an awareness on the part of the defendant that the dust wall was load bearing, otherwise there would have been no purpose in using the props to transfer the weight of the ceiling from the dust wall to the new wall in a controlled manner. The fact that "nothing bowed or gave way", according to the evidence of Mr Muzyczka when he removed the dust wall and the acrow props, was not, to our mind, justification for leaving the ceiling unsupported in circumstances where no assessment had been undertaken of the structural integrity of the ceiling. We find that particular (g) is made out.
81 We find the offence proven.
Section 53 defence
82 We have considered whether a defence has been made out under s 53 of the Occupational Health and Safety Act. Section 53 provides as follows:
It shall be a defence to any proceedings against a person for an offence against this Act or the Regulations for the person to prove that:
(a) it was not reasonably practicable for the person to comply with the provision of this Act or the Regulations the breach of which constituted the offence, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.
83 To establish the defence the appellant must prove that, on the balance of probabilities, either that it was not reasonably practicable to comply with the statute or that the commission of the offence was due to causes over which the appellant had no control and against the happening of which it was impracticable to make provision: Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90IR432 at 457; Sydney County Council v Coulson (1987) 21 IR 477 at 480; Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431; WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd (unreported, Walton J, Vice President, IRC 97/4732, 4733, 19 October, 1999).
84 In our view, it was readily foreseeable that in the absence of any adequate assessment of the structural integrity of the ceiling there was a potential danger of the ceiling collapsing and causing injury. It is clear from our analysis of the evidence that it was reasonably practicable for the appellant to comply with the requirements of s 16(1) by taking sufficient and appropriate steps to ensure the structural integrity of the trafficable suspended ceiling on 5 March 1996. Further, it cannot be said that what occurred was outside the control of the appellant. The defence has not been made out.
Penalty
85 In her judgment as to penalty, Kavanagh J fined the appellant $100,000. The appellant submitted that in reaching her conclusions about penalty her Honour misapplied the principle of parity.
86 The issue of parity in sentencing arose out of the fact that Kennedy-Taylor was convicted of three offences under s 15(1). The convictions arose out of the same factual circumstances that applied in respect of the appellant here.
87 Kavanagh J took the following approach to penalty in relation to Kennedy-Taylor:
21 As to summons No. IRC605 of 1998 I find the defendant guilty. I fine the defendant $30,000.
As to summons No. IRC606 of 1998 I find the defendant guilty. I fine the defendant 50,000.
As to summons No. IRC607 of 1998 I find the defendant guilty. I fine the defendant $30,000.
22 I take into account the principle of parity as between this defendant and Kennedy-Taylor and in the application of the principle of totality I fine the defendant $100,000 with a moiety to the prosecution.
88 Mr Parker submitted that her Honour had misapprehended Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363 in respect of an offence under s 16(1) constituting but one breach. He submitted her Honour seemed to have assumed that the six particulars of the alleged breach by the appellant equated with three offences found to have been committed by Kennedy-Taylor. Mr Parker argued that the principle of parity required the Court to impose a sentence on the appellant in parity with the individual sentences imposed on Kennedy-Taylor. The outcome of such an approach if the appellant were found guilty, Mr Parker submitted, would be a fine in the range of $30,000-$35,000.
89 In the course of his argument, Mr Parker said that if one had regard to the maximum fine that could have been imposed on Kennedy-Taylor it was $1,500,000 (three times $500,000 - $500,000 being the maximum fine for an offence as at March 1996). He said that a fine of $100,000 represented about 6.7 per cent of the maximum. On the other hand, the maximum penalty for the offence alleged to have been committed by the appellant was $500,000 and a fine of $100,000 represented 20 per cent of the maximum. Mr Parker submitted that this violated the notion of equal justice and gave rise to a justifiable sense of grievance.
90 Ms McDonald submitted that the approach taken by Kavanagh J was the correct approach and that if the Court had regard to the overall culpability of the appellant, compared to that of Kennedy-Taylor, the Court would find that a penalty of $100,000 was appropriate in the circumstances.
91 As we noted earlier, Kennedy-Taylor had also appealed against the judgment of Kavanagh J in which she found it guilty of the three offences charged. That appeal was unsuccessful Kennedy-Taylor (NSW) Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 240, and given that there was no challenge by Kennedy-Taylor to the penalty imposed that penalty stands.
92 Having in mind the nature of this appeal, which is by way of re-hearing, it is a matter for us to determine independently the appropriate conviction and sentence: Capral Aluminium.
93 There is a long line of authority, encapsulated by the statements of the Full Bench (Wright J, President, Walton J, Vice President, Peterson J) in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464, that the primary factor to be considered in determining sentence to be imposed is "the objective seriousness of the offence charged" and that "in cases of prosecutions under the OH&S Act, this proposition has often been expressed by saying that 'the true measure of penalty lies in the nature and quality of the offence'": Lawrenson Diecasting at 474.
94 Accepting, as we do, that the objective seriousness of the offence remains the primary factor, subjective factors such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety must also be taken into account but these factors "play a subsidiary role in the determination of penalty to the gravity of the offence itself": Lawrenson Diecasting at 474.
95 Mr Parker submitted that in terms of the objective seriousness of the offence, the appellant exhibited a minimal degree of culpability and that the offence ought not be regarded as serious.
96 The offence, in our opinion, was indeed a serious one. It was more than "mere inadvertence" on the part of the appellant that it failed to take the necessary precautions to avoid the risk to safety that arose from the construction work on and around the ceiling. The appellant knew that work was being conducted from time to time in the ceiling space above the Hanging Area. Despite this, no assessment was made of the effect construction work might have on the structural integrity of the ceiling. There was no consideration, let alone assessment, of the effect on the ceiling of the dripping water and the additional weight of workers and equipment. Not even the simplest precaution was undertaken by the appellant to check whether there were any persons in the ceiling at the time the dust suppression wall and acrow props were removed; no instructions were given to persons not to enter the ceiling at the critical time when the weight of the ceiling was to be transferred to the new northern wall. It was simply assumed there was no one in the ceiling space and that no one was likely to enter the ceiling space. Even if the appellant held the view that the ceiling was not part of its place of work, it seems to us that commonsense dictated the necessity of checking to ensure the ceiling space was unoccupied and could not be entered at the critical time.
97 The fact the ceiling was inherently unsafe through no fault of the appellant, and that this may have contributed to its collapse, did not relieve the appellant of its duty to ensure that persons not in its employment were not exposed to risks. As we have found, the risks arose from the appellant's undertaking at its place of work. Mr Doring, the appellant's site foreman, had seen the physical state of the ceiling which, in our view, should have alerted him to the possibility that it was unsafe. Even if the appellant had not initially realised the connection between its construction work and the risks to safety that might pose if the structural integrity of the ceiling was affected, the "appalling" state of the ceiling should have triggered such a realisation. But nothing was done to assess any risk.
98 As to subjective factors, these are referred to at pars 10 to 17 of her Honour's judgment on penalty. They include: the Safety Management Review implemented by the appellant following the accident; modifications to the appellant's Safety Management Plan; risk assessments on all site activities; the fact that the occupier of the site, namely Chisholm, was not charged with any offence despite the apparently unsafe ceiling thereby giving rise to a sense of injustice on the part of the appellant. We consider these were the appropriate factors to be taken into account.
99 The principle of parity was addressed in Capral Aluminium. There, the Court was distinguishing between parity and consistency. In relation to the distinction the Court said, commencing at par 62:
It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and IRC98/1106, 4 February 2000 at 103):
"Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen " where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour.
Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 …"
When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said, at 371:
"It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612:
'The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.'"
In Channon v The Queen (1978) 20 ALR 1 at 18, Deane J observed:
"In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances."
As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10.
The principle of consistency is relevant to this appeal, as it is a reflection of the notion of equal justice, a fundamental element in any rational and fair system of criminal justice. See for example R v Henry (1999) 46 NSWLR 346 at 353 where Spigelman CJ said:
"12. As I indicated in Jurisic , the purpose of a guideline judgment is to foster consistency in sentencing. The importance of consistency was well expressed by Mason J in R v Lowe (1994) 154 CLR 606 at 610 - 611:
'Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.'"
and see also R v Howland at 43 - 44 per Spigelman CJ.
100 It seems to us on the authorities that what we must take into account here is the principle of consistency, but, in doing so, "what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender".
101 If we were to put aside for the moment any consideration of the penalty applied to Kennedy-Taylor and look at an appropriate sentence in respect of the appellant, given the objective seriousness of the offence and the subjective factors to be taken into account, it would be our view that a penalty in the range of $90,000 to $110,000 would be appropriate.
102 We note, of course, in her judgment on penalty in respect of Kennedy-Taylor, in assessing the overall culpability of the defendant Kavanagh J applied the principle of totality in sentencing and imposed a penalty of $100,000. The principle of totality requires a court which is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J.
103 In the circumstances, and having regard to the overall culpability of the appellant and the principle of consistency, we consider that a penalty of $100,000 is appropriate.
Orders
104 We make the following orders:
The appeal is dismissed.
The stay order made on 26 April 2000 is dissolved.
The appellant is to pay the respondent's costs of the appeal in an amount as agreed or assessed.