Nelmac Pty Ltd v Inspector Franke

Nelmac Pty Ltd v Inspector Franke - [2006] NSWIRComm 100 - NSWIRComm 2006 case summary — Zoe

[12]

1 These proceedings involve an appeal under s 196 of the Industrial Relations Act 1996 against the judgment of Haylen J of 21 February 2005 in which his Honour convicted the appellant of an offence under s 8(1) of the Occupational and Health Safety Act 2000 following a plea of guilty and imposed a fine of $156,000: Inspector Franke v Nelmac Pty Ltd [2005] NSWIRComm 44. 2 The offence arose in circumstances where on 18 March 2002 Albert John Giffin a labourer in the appellant's employ was working on a partially constructed concrete road bridge at the appellant's Trunketabella bridge construction site on the Princes Highway. Several other employees of the appellant were also working on the bridge including Michael Smith, a labourer; Paul Glasson, a steel fixer; and, Craig Fairman, a concreter. Work commenced at about 7.00am. At about 7.30am Mr Giffin took a piece of conduit onto a formwork deck in order to check its length. He stepped onto a piece of plywood that was being used to cover an opening in the deck but which had not been nailed down or otherwise secured, and there were not any markings in the vicinity to indicate that the plywood had not been secured. The plywood gave way under Mr Giffin causing him to fall through a penetration in the deck. One of Mr Giffin's legs went through the penetration. As a result of the incident Mr Giffin sustained injuries to his back. The formwork deck was approximately 1.5 metres from the water below which was approximately 1 metre in depth with a soft muddy bottom. 3 At the time of the incident it appears that the bridge was in its second and final stage of construction. The first stage had commenced sometime in July 2001. The appellant had been subcontracted by the Roads and Traffic Authority to construct the bridge. A project specific safe work method statement and a safety plan had been formulated beforehand in consultation with the appellant's management and employees. The safe work method statement specifically required that penetrations must be covered and that formwork must be securely fixed. Mr Smith had been charged two days earlier on 16 March with the task of fitting and securing the plywood flooring over the penetration. He left the site on that day however without securing the plywood and without advising Mr Giffin of that fact. The safety plan provided that the project manager, or in his absence the site supervisor, was responsible for the planning and safe execution of work on the site. Brian James McIntosh was the project manager. He was not however on the site on 16 March or on the morning of 18 March. There was some arrangement between Mr McIntosh and Mr Smith that the latter would act as site supervisor on 16 March but this arrangement was never communicated to the other employees. 4 During the time the appellant had been working on the construction of the bridge the RTA had carried out inspections approximately 2 to 3 times a week to ensure that the appellant was following quality control procedures and implementing and managing occupational, health, safety and environmental systems as well as ensuring that traffic management plans were in place. The appellant's employees working on the bridge on 18 March all had previous experience in bridge construction work. All had been inducted prior to working at the site and part of the induction had specifically addressed the requirement that all penetrations be covered and securely fixed. The induction also included a direction that access to and egress from the bridge was by designated walkway scaffold platforms. Judgment at first instance

[17]

Day in day out, this Court sees comprehensive systems of work laid down by employers, only to find in the ultimate, those systems fail. It has been stated on a number of occasions by this Court that the system of work has to take into account not only the diligent worker but even the worker who is either careless or in fact negligent. It is not possible on the evidence here to make any determination about what precisely led this piece of formwork not to be secured, nor, for that matter, Mr Giffin to walk upon it. But an employer under this legislation cannot ignore the fact that those types of actions are likely to occur at their worksite, and they have to take steps to ensure that it does not put at risk people who are working on their sites. 10 The offence his Honour found was a serious one although not at the worst end of the scale. There were several failures relied upon by the prosecutor which were the failure to secure the formwork, the failure to mark it, the failure to erect barriers or warning signs along the work, to commence work when there was a hidden trap on site, and, the absence of any proper supervision. These matters his Honour expressly took into account in setting what he considered an appropriate penalty in the context of what was a serious offence. 11 The principles of general and specific deterrence were also taken into account by his Honour. In relation to general deterrence his Honour determined that it had a role notwithstanding the fact that prior to the incident there appeared to be a comprehensive system of safe work in place and that there were additional steps implemented after the incident. In relation to specific deterrence his Honour considered that it also featured significantly in setting the penalty. 12 Finally his Honour turned to a consideration of the subjective features. He expressly took into account the appellant's industrial record which his Honour considered as "not a bad record". Cooperation and contrition were also taken into account, the latter being evidenced not only by the plea of guilty but also the appellant's involvement in Mr Giffin's rehabilitation. Also taken into account were the steps taken to address the subject risk by the appellant following the incident and its prior record. A discount of 25 percent was allowed for the plea of guilty. His Honour also allowed a further discount for the subjective features. Grounds of the appeal

[22]

(b) The prosecutor rightly points to a number of matters as significant: the failure to secure the formwork, the failure to mark it, the failure to erect barriers or warning signs along the work, the commencement of work when there was a hidden trap on site, and the absence of any proper supervision. 17 The appellant contends in relation to the first finding that it implies the possibility that the system of work intended that the plywood board be left unsecured and that this therefore increased its culpability and the objective seriousness of the offence. According to the appellant the evidence was to the contrary: namely, that the board was supposed to be nailed by Mr Smith who understood this but he failed to do so through oversight. 18 An examination of his Honour's reasons in relation to the circumstances that gave rise to the board not being secured leads us to conclude that the appellant's contention on this point is not borne out. His Honour when contrasting the circumstances in relation to the 1996 incident and what he termed "the current incident", noted that the particular feature of the current incident, "... was the unknown reason for Mr Smith failing to secure the formwork". This finding acknowledges that the evidence before his Honour simply did not disclose the reason why Mr Smith did not secure the formwork. This finding moreover is entirely consistent with the finding that it was not possible on the evidence to determine why the formwork was not secured. It is also entirely consistent with evidence that the board was meant to be secured by Mr Smith who understood that this was what he was supposed to do. Before leaving this point we would observe that what the appellant identified as evidence to the contrary in the sentencing proceedings was in fact submissions that were made at first instance by the appellant to his Honour. 19 In relation to the second finding of his Honour that was challenged, the appellant sought to advance its submission that there was error in the reasons on sentence by contending that its culpability rather arose from its failure to ensure that Mr Smith secured the board as intended. His Honour's finding however does no more than acknowledge as significant the failures which the prosecutor had particularised in the application for order and to which the appellant had pleaded guilty. The agreed statement of facts moreover contains a specific acceptance by the appellant (at paragraph 10) of the particulars contained in the application for order. 20 The further basis upon which the appellant advanced its second ground of appeal relies on a table of cases attached as a schedule to its written submissions. The scheduled cases are in two parts. The first part sets out cases which the appellant submits involve levels of objective seriousness and which are comparable to the present matter. The second part lists cases which the appellant submits involve levels of culpability which are greater than the present matter but in which penalties have been imposed which are close to or equal to the penalty imposed by his Honour. 21 An examination of the two parts reveals that the first part contains a summary of seven cases and the second part contains a summary of ten cases. 22 By reference to the scheduled summaries of the cases contained in both parts it is immediately apparent that there are substantial differences between the various cases. Some for example proceed on the basis that the defendant had prior convictions while others do not. This means that in relation to those cases with prior convictions the statutory maximum was higher than those cases which had no prior convictions. In relation to those cases where there were prior convictions some had one prior conviction, others had several, and one had twenty two prior convictions. Some of the cases take into account specific deterrence while others do not. Others take into account victim impact statements. Some make reference to good safety records or procedures in place prior to the offence or offences while others are silent on this factor. 23 In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 the Full Bench declined to consider a schedule of judgments and penalties imposed which was handed up by the respondent for use as comparative material. The Full Bench saw significant difficulties in using such material to support a party's submission that the case summaries in the schedule confirmed that the subject sentence involved a significant disparity with other sentences passed under the same section. The first difficulty identified was that such material purporting to be representative of general sentencing trends was less likely to be useful where the circumstances of the individual offences varied greatly or when the sample size was small. A further difficulty was that the Full Bench did not consider that in 1998 when the matter was considered there had not yet been established a general sentencing pattern in relation to occupational health and safety offences since the penalties were increased in 1996. Finally in relation to the statutory maximum with which the Full Bench was dealing, which was $750,000, it was observed that no sentencing pattern had been established in relation to serious offences involving the same maximum penalty. 24 There has been some judicial criticism directed to the practice of placing reliance on comparative sentencing material in the sentencing process. The Full Bench in Capral Aluminium for example referred to a passage in R v Morgan (1993) 70 A Crim R 368 at 371 where Hunt CJ at CL said:

[27]

This Court has said on many occasions that it is not a proper approach to sentencing to seek to compare a sentence under challenge directly with that imposed on another offender (who is not a co-offender) simply because the 2 offenders may have similar characteristics and may have committed similar crimes - see e.g. Morgan (1993) 70 A Crim R 368 at 371; R v Lawson (1997) 142 FLR 323 at 324, per Hunt CJ at CL; R v Speechley [2002] NSWCCA 300 at [39]; R v Merritt [2004] NSWCCA 19 at [62]; R v Trevenna [2004] NSWCCA 43 at [50, 89 and 99]. It is equally, or more, inappropriate to seek to compare fact findings or characterisations under challenge with those made in one or a few of the thousands of past cases and, upon the basis that there are similarities between the cases, urge that the same findings of fact or characterisation are required. Invariably of course, differences between the case where the sentence is being challenged and the one or few in the past are ignored. 27 In addition to the reservations expressed in the foregoing authorities about the utility in the sentencing process of comparing the sentence under challenge to other sentences imposed on other offenders who are not co-offenders, we perceive a further difficulty with the appellant's submission on this ground of appeal. The cases upon which reliance has been placed are not in our view of a number significant enough to establish a pattern of sentencing. During the hearing of the appeal counsel were granted leave to file further submissions in relation to two cases which the Full Bench was informed had not been included in the schedule to the applicant's outline of written submissions. Additional submissions were later filed which revealed that only one case had not been included in the schedule. The addition of one case does not advance the appellant's contention that there is now an emergent pattern of sentencing which might facilitate a meaningful comparison for the purpose of assessing an appropriate sentence in the present case. Accordingly, this ground of appeal fails. First ground of appeal: penalty was excessive

[32]

[T]his is a serious offence. It is not however one at the worst end of the scale: had this opening been wider, had there been a real potential for Mr Giffin to fall through, the seriousness of the offence would have been grave. Even though the measurement of the penetration was modest, it is not unknown that in building work people fall in such a way that they lose consciousness. There was water below. If it was that type of accident it would indeed, especially in the light of the history of this defendant, have been a very serious offence, but I am not able to come to that conclusion, although I conclude that it is a serious offence. 31 The appellant contended on appeal that the evidence on sentence disclosed that there was no prospect that an employee could have fallen into the water either through the bridge or over the edge of the bridge. It was therefore unlikely that Mr Giffin could have been rendered unconscious as a result of the accident. It was also said to be irrelevant to make reference to there being water below, as his Honour did, when assessing the consequences of the accident. Nevertheless the appellant conceded in oral submissions on the appeal that the offence was serious and that his Honour was correct in so finding. 32 As the authorities on this point have observed, the fact of serious injuries does not, of itself, demonstrate the objective seriousness of a breach of the Act, although the occurrence of serious injuries may manifest the degree of seriousness of the risk to safety: see for example Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] [18] and [23]. 33 The passage in the sentencing remarks which we have reproduced, in our view, does no more than reflect his Honour's consideration of the seriousness of the risk and, based on this finding at first instance, his Honour concluded that the offence before him was serious but not "very serious". The reference in the passage to there being water below did not affect this conclusion. We agree that the circumstances in the context of the gravity of the offence were such as to warrant the finding that the offence was serious. We also note the appellant's concession in the regard that the offence was serious. The existence of a safe system of work

[36]

40 The appellant conceded in its submissions on appeal that the risk to safety was not only foreseeable but was foreseen. It submitted however that the foreseeability of the risk to safety must be assessed by comparing the earlier incident in 1996. There were a number of points of distinction between the two incidents according to the appellant. First, the 1996 incident involved a piece of plywood in excess of thirteen times larger than the piece of plywood onto which Mr Giffin stepped. Secondly, the height of the bridge above water in the earlier incident was 16 to 18 metres whereas in the present incident it was 1.15 metres. Thirdly, the penetration the subject of the 1996 incident was located on a walkway where employees were bound to walk whereas in the present incident the penetration was located on formwork where there was only the possibility that employees would use it as a walkway. These factors the appellant said made the risk to safety less obvious than the risk which existed in relation to the 1996 incident, and placed the gravity or seriousness of the present offence on a different scale. 41 The submission in our view suffers from a number of defects. First it concentrates on the incident the subject of the offence as opposed to the foreseeability of the risk to safety: see for example WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Ltd (2004) 136 IR 449 at [81]. Secondly, insofar as it seeks to establish that the present offence is rendered objectively less serious by means of a comparison with the 1996 incident, it ignores the fact that the 1996 offence involved a statutory maximum of $550,000 as opposed to $825,000, the statutory maximum applicable to the present offence and also that the sentencing in 1999, in respect of that offence, occurred when this Court was at an early stage of re-evaluating the sentencing regime under the Occupational Health & Safety Act 1983. Thirdly, an analysis of the reasons at first instance reveal that his Honour was influenced by what he referred to as the overlap between the two cases, that is, in 1996 there was a requirement to secure formwork over penetration. This requirement subsisted up to the present but nevertheless it still, as his Honour found, did not have the effect of ensuring that the penetration was secured thereby exposing employees to a risk to their safety. This in our view renders the overall objective seriousness of the present offence more serious. Prior convictions

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Judgment (42 paragraphs)

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Cases Cited (14)

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