SafeWork NSW v Erect Safe Scaffolding - [2017] NSWDC 365 - NSWDC 2017 case summary — Zoe

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SafeWork NSW v Erect Safe Scaffolding

[2017] NSWDC 365

District Court of NSW|2017-12-15

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At a glance

Source facts

Court

District Court of NSW

Decision date

2017-12-15

Catchwords

CRIMINAL LAW - prosecution - work health and safety - duty of persons undertaking business - risk of death or serious injury

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW - prosecution - work health and safety - duty of persons undertaking business - risk of death or serious injury

Judgment (23 paragraphs)

[1]

Solicitors: SafeWork NSW (prosecutor) Brown & Partners Solicitors (defendant) File Number(s): 2016/217433

[2]

Judgment

Erect Safe Scaffolding (NSW) Pty Limited (the offender) has pleaded guilty to an offence that being a person conducting a business or undertaking that had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the Act) it failed to comply with that duty and thereby exposed Mr Michael Rice to a risk of death or serious injury contrary to s 32 of the Act.
The particulars of the Amended Summons, to which the offender pleaded guilty, were that it failed to take one or more of the following reasonably practicable measures to eliminate risk: 1. Ensure that it confirmed workers were licensed and competent to operate a forklift prior to allocating them work requiring them to operate a forklift. 2. Ensure workers were instructed not to operate a forklift where the load restricted their view, in whole or in part, without a spotter or other appropriate traffic management controls. 3. Ensure that as between LendLease and itself, the work allocated to and performed by all workers on the day was properly co-ordinated and supervised between them, when those workers were working in close proximity to one another and using one or more forklift trucks on the work site.

[5]

THE INCIDENT

On 8 August 2015 at around 10.00am Mr Rice and Mr Evers were working near the Western Haul Road (the Road) and the foreshore storage area (the Area).
Mr Evers was driving a forklift back and forth, shifting dismantled scaffolding components from one location to another.
Mr Rice was engaged in clearing materials from the Area and other areas along the Road to make way for upcoming construction project works.
For several weeks prior to the incident, Mr McGrath had been working in association with Mr Rice to complete the task which involved both manual work and the operation by them of forklifts to move and relocate the materials from the Area to another assigned area.
Before the incident in which he was injured Mr Rice had completed the task of clearing materials and cleaning rubbish from the Area. He bent over to spray paint the words "Keep Clear" on the ground between the Road and the Area. Mr Rice had decided to do this to ensure that no one placed any material within the area which he had cleared.
At the time of the incident Mr Rice was wearing Personal Protective Equipment (PPE) including: a high-visibility vest, a hard hat, steel-capped boots, eye protection and one glove.
As Mr Rice bent over to spray paint the words on the ground he became aware of the approach of the forklift driven by Mr Evers and shouted out the word "No".
Mr Evers caught sight of a movement in front of the load and heard the word "No". Mr Evers braked immediately and halted the forklift.
The sudden braking of the forklift by Mr Evers caused the load to rock on the tines of the forklift.
Mr Jordy Lawson heard someone yell "No" and observed the forklift stop in front of Mr Rice. The load was rocking.
Mr Evers observed Mr Rice to stand up and attempt to stop the scaffolding from falling off. The load in the top stillage shifted when the metal strapping broke. This caused the top stillage to topple over and the scaffolding components in the top stillage spilled out. Mr Evers observed Mr Rice to raise his hands to protect himself from the falling load.
Mr Rice was struck by the scaffolding components spilling from the top stillage and he fell backwards and landed on the ground.
Mr Evers immediately applied the handbrake and alighted from the forklift to render assistance to Mr Rice.
Mr Evers then began to lift the fallen scaffolding components from Mr Rice to enable him to slide out from under them.
At this point Mr Lawson having witnessed the incident arrived to provide further assistance.
Mr Beswick arrived and immediately raised the alarm to call for an ambulance. LendLease personnel, including Mr McGrath, arrived on the scene not long after this, and provided further assistance to Mr Rice and called for First Aid to attend.
Immediately following the incident, Mr McGrath operated a forklift to move some concrete jersey curbs in order to prevent vehicles driving through the area while Mr Rice was being attended to.

[6]

Allocation of Mr Evers to the forklift

The forklift involved in the incident was hired by the offender from Coates Hire. At the time of the incident the forklift was operated by Mr Evers acting at the direction of the offender. Mr Evers was engaged by the offender to perform work as a scaffolder and operating a forklift was not part of his regular duties.
On 7 August 2015, the day before the incident, Mr Evers was allocated to operate the forklift the following day by his supervisors, Mr Beswick and Mr MacAskill because the regular driver, Mr Kiwi Johannson, was unable to work that day.
Mr Beswick had suggested the allocation of Mr Evers to operate the forklift based on his knowledge of Mr Evers' prior work experience with other persons of operating forklifts.
Mr MacAskill agreed to this suggested work allocation as recommended to him by Mr Beswick.
Contrary to Mr Beswick's assumption Mr Evers did not hold a valid High Risk Work (HRW) licence to operate a forklift within New South Wales.
At all material times Mr Evers was aware of the requirement to have a valid HRW licence to operate a forklift within New South Wales.
Mr Evers did not disclose to either Mr Beswick or Mr MacAskill that he did not possess a valid HRW licence to operate a forklift within New South Wales.
Neither Mr Beswick nor Mr MacAskill took steps to ensure or verify that Mr Evers held the required HRW licence. The applicable Safe Work Method Statement (SWMS) of the offender then in place read and required: "Employees are to have current Workcover license for operating forklift. At no time are un-licensed operators to operate forklift".
The record of qualifications and licensing maintained by the offender did not state that Mr Evers was the holder of a valid HRW licence to operate a forklift within New South Wales.
The applicable SWMS of the offender required only "ticketed" drivers to be allocated to drive a forklift.
Mr Evers was required by Mr Beswick to move scaffold materials with the forklift to a truck operated by the offender and parked in a designated loading area, to facilitate the removal of the scaffolding from the work site.
On 8 August 2015 Mr Evers commenced work at approximately 7.00am. Mr Evers attended and obtained the forklift key from the offender's shed.
Prior to the incident the offender did not have any system or procedure in place for the forklift key to ensure that only licensed operators were given access to it.
After accessing the key on the day Mr Evers continued to operate the forklift and was in control of it up to the occurrence of the incident.

[7]

Allocation of the work within the Area of the incident

At approximately 8.00am Mr Rice introduced himself to Mr Evers as both were to work in proximity to one another in and around the Area that day. In addition, Mr McGrath was also working near the Area. All of these workers had been allocated a forklift by their respective employers to assist in performing their designated work on the day.
Prior to the incident Mr Evers had moved approximately 30 loads of scaffolding components in stillages from the temporary holding yard to the offender's truck parked within the designated loading area. The offender's truck was located approximately 150 metres from the temporary holding yard.
At the time of the incident Mr Evers was about halfway between the temporary holding yard and the offender's truck to be loaded. He was carrying on the tines of the forklift a load of two mixed stillages that contained about 160 metal scaffolding tubes and other scaffolding components. The scaffolding placed within the stillages had been fastened together with metal strapping. The height of the load was approximately 1.6 metres above the tines. The height above the ground was approximately 1.8 metres. The load weighed approximately two tonnes.
At the time of the incident Mr Rice's forklift was parked. Mr Rice was on foot. Mr Rice was engaged in marking the ground.
At the time of the incident, Mr McGrath was operating his forklilft on the Road approximately 40 metres north of the incident and driving away from the area of the incident.
At the time of the incident Mr Beswick was with the truck driver adjacent to the offender's truck to be loaded which was parked approximately 100 metres north of the area of the incident.
At the time of the incident work was occurring related to the dismantling of the Concrete Batching Plant near the incident and adjacent to the Road.
While he was driving the forklift along the Western Haul Road, Mr Evers did not have a clear view in front of the forklift as his view was partly obstructed by the height of the load.

[14]

THE EVIDENCE FOR THE OFFENDER

The evidence for the offender came from the affidavits of Mr Steven Lee O'Beirne sworn 6 December 2017 and 11 December 2017.
The offender has been in business since October 2013. Mr O'Beirne is a director of the offender. He manages and conducts the day to day operations. He has many years of experience in the scaffolding industry. He holds a HRW licence in relation to both scaffolding and forklift operation.
On behalf of the offender, and also personally, he expressed regret for the circumstances which led to Mr Rice being injured. Mr O'Beirne kept in touch with LendLease and union representatives to monitor Mr Rice's recovery from his injuries.
Mr O'Beirne provided detailed evidence about the commitment of the offender to safety as a scaffolder and the documentation and systems which it had in place at the time of the incident. The offender carried out an investigation of the incident and a copy of the investigation report was attached to his affidavit.
Mr O'Beirne made enquires of Mr MacAskill and others to ascertain just how Mr Evers came to be driving a forklift on the day of the incident when he was unlicensed. Employees of the offender who were on site in a supervisory capacity failed to check whether Mr Evers had the appropriate licence for a forklift. Mr O'Beirne provided evidence that the manner in which Mr Evers drove the forklift on the day in question did not raise concerns with any other people on site. Mr Evers had transported about 30 loads during the morning and had fully loaded the truck. He was in the process of loading the truck with a second load when the incident occurred. Mr O'Beirne spoke with Mr Evers on the day of the incident and observed that he was very distressed about the occurrence. Mr O'Beirne's enquiries showed that Mr Evers had been driving forklifts in Queensland and New South Wales for 15-20 years but never got around to obtaining a licence. Mr Evers never disclosed to the offender that he did not have a licence, but nor was he asked by the offender's supervisors whether he did have a licence. Because he didn't have a licence he was never inducted into the offender's SWMS on forklift operation.
Mr O'Beirne gave evidence about the remedial steps taken by the offender after the incident. They have been summarised above and are agreed facts.
I rejected the tender of large portions of Mr O'Beirne's first affidavit, which in an argumentative fashion tried to establish that Mr Evers would not have had an obstructed view by reason of the load on the front of the forklift. I rejected that evidence partly because it seemed to traverse the plea, but also because there was no point considering his analysis of the height of the load, when it was an agreed fact that the top of the load was 1.8 metres above the ground.
Mr O'Beirne said that the offender was not involved in any further incidents at the site involving forklifts. The offender had a clean record and in the 27 months after the incident it had completed a large number of scaffolding projects without further incident leading to a prosecution. He estimated that 793,000 man hours had been worked on those projects since the incident.
Mr O'Beirne said, and I accept, that the injury to Mr Rice was brought about through human error on the day, and was not indicative of any lack of safety consciousness by the offender. I also accept his evidence that both before and after the incident the offender had sought to maintain a safe working environment.

[16]

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No. 2) (1998) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including: (a) the potential consequences of the risk, which may be mild or catastrophic; (b) the availability of steps to lessen, minimise or remove the risk; and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
Further at paragraph 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
My findings about the offender's level of culpability are based upon the following: 1. Workers on the site were placed at risk of death or serious injury, if struck by a moving forklift. The risk was obvious, identifiable and foreseeable. 2. The risk to which Mr Rice was exposed was a serious risk to his health and safety. He could easily have been killed in the accident. 3. The existence of the risk was known to the offender and was identified in: 1. Australian Standard AS2359.2-2013 Powered Industrial Trucks; 2. WorkCover NSW Moving Plant on Construction Sites Code of Practice; 3. SafeWork NSW Forklift safety - reducing the risks; 4. SafeWork NSW Safety Alert - Working with or around mobile plant; 5. The offender's Safe Work Method Statement Use of a Forklift dated 4 February 2014. 1. No steps were taken to ensure that the workers who operated the forklift had valid High Risk Work licences and were competent, prior to the offender allocating them work which would require the use of a forklift. 2. The offender did not ensure that workers were instructed not to operate a forklift where the load restricted their view, without a spotter or other appropriate traffic management controls. 3. This does seem to have been a one-off event rather than an ongoing or systematic failure by the offender to carry out its obligations under the Act.
I find that the offender's level of culpability is in the high end of the low range.

[19]

MITIGATING FACTORS

The offender does not have any record of previous convictions: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.
The offender is otherwise of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this.
The offender is unlikely to re-offend: s 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999. It has proved its ongoing commitment to safe practices.
The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken positive steps to guard against the risk of an incident such as this happening again.
The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender proved that it has accepted responsibility for its actions and has acknowledged that the injury to the victim was caused by its actions.
The offender entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when it pleaded guilty, and the circumstances in which it indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. The plea of guilty was only recently entered on 4 September 2017. However, that plea resulted from lengthy negotiations between the parties concerning the facts to be agreed as the basis for a plea. As early as November 2016, less than four months after the original Summons was filed, the offender in correspondence indicated that it was considering a guilty plea. This was reiterated in December 2016 and February 2017. While negotiation between the prosecutor and the offender led to a large number of adjournments and directions hearings, such a process is not to be discouraged, when it results in an Agreed Statement of Facts and a plea of guilty, thus saving considerable court time and expense. In my view the offender indicated its intention to enter a plea of guilty at the earliest possible opportunity. It is appropriate to apply a discount of 25%.
The offender gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

SafeWork NSW v Erect Safe Scaffolding

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)

Cited By (1)