SafeWork NSW v Hydro Clean

District Court of NSW|2017-09-18

Solicitors: SafeWork NSW (Prosecutor) Mackenzie and Vardanega (Defendant) File Number(s): 2016/334981

Judgment

Hydro Clean (Griffith) Pty Ltd (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (the Act) it failed to comply with that duty and thereby exposed Mr Domenic Zirilli to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $1,500,000.
I make the following findings of fact.

THE INCIDENT

About a week prior to 21 January 2015 Mr Steven Fedrigo rang MIA Cranes to book a crane for 21 January 2015. He said that the crane was needed to remove the final beams. He was informed that the rigger who had previously been available to the offender was not available for 21 January 2015. He was asked whether MIA should send a different rigger for that day. Mr Fedrigo said: "No, that's ok".
In his affidavit sworn on 14 September 2017 Mr Fedrigo said: "At the time I thought that the job would be a small one as it only involved two lifts and a couple of hours work. I have since come to realise I was wrong in making the decision not to have a rigger on the site and I very much regret the decision I made that day."
On 21 January 2015 MIA Cranes provided a Liebherr LTM 1040 mobile crane serial number 051905 (the crane). The crane had a 40 tonne lifting capacity. Prior to 21 January 2015 MIA Cranes had provided a different crane which had been used in the course of the demolition work.
Mr Ford attended the premises with the crane on the morning of 21 January 2015. Mr Grundy also attended for the purpose of assisting Mr Ford in setting up the crane as the location in which it was required to be positioned was a tight area between buildings. Mr Grundy left the site at approximately 8am subsequent to the crane having been set up.
On 21 January 2015 Mr Zirillo and Mr Jones were working on the platform undertaking the removal of the columns.
Mr Jones instructed Mr Zirillo that the work method to be adopted for the removal of the columns was as follows: 1. Position a ladder next to the column; 2. Use the ladder to access the area near the top of the column; 3. Wrap a chain attached to the crane twice around the column and attach the hook on the chain back on to the chain itself; 4. Descend from and then remove the ladder; 5. Have the crane take up the slack in the chain by raising the chain until it tightens and grabs against the column; 6. Using oxy-acetylene equipment, cut the column completely through near its base; 7. Have the crane raise the cut column and transport it in a vertical position to the centre of the platform; 8. Lay the column horizontally on the platform; 9. Re-rig the column with chains at either end so that it can be transported in a horizontal position from the platform to a forklift waiting on the ground below adjacent to the building.
In respect of the first column, Mr Jones climbed the ladder and attached the chain at a position approximately three-quarters of the way up the height of the column. That column was then cut at a height of approximately 200mm from its base and removed in accordance with the procedure as set out above, without incident.
Once the first column was transported to the centre of the platform and lowered, Mr Ford was unable to see it and was reliant upon hand signals from Mr Jones.
Mr Zirillo was on the platform throughout the removal of the first column. Mr Vaughan-Appel was on the ground assisting in the lowering of the column to that level. Mr Jackson Fedrigo was on the ground operating a forklift truck.
Mr Jones directed Mr Zirilli to attach a chain to a second column. Mr Zirilli positioned and climbed the ladder and attached the chain in the manner directed and demonstrated to him by Mr Jones, by wrapping the chain around the column, and hooking the chain back onto itself. The chain was attached approximately 50cm from the top of the column. Mr Jones was present on the platform while this occurred and observed Mr Zirilli working and the manner in which he attached the chain to the column.
Mr Zirilli then descended, removed the ladder and cut the column at a height of approximately 1100mm from its base using oxy-acetylene equipment. He then removed his safety harness.
Mr Jones descended from the platform and departed the area towards the end of the cutting process in order to smoke a cigarette and make a phone call. Mr Jones went to a location where he did not have a view of the job. Mr Vaughan-Appel at this stage went up on to the platform at the direction of Mr Jones.
The column was then lifted by the crane. As soon as the crane began to lift the chain slid up against the top footing plate of the column.
The column was then transported to the centre of the platform.
Mr Vaughan-Appel directed the crane driver.
The column was lowered onto the platform in a vertical position. Mr Zirilli was holding the column with his hands to control the direction of its descent.
As the base of the column touched the platform and the tension came off the chain, the chain wrapped around the column became loose and began to slide down the column.
As the chain slid beyond the half-way point along the column, the column became unstable and fell free of the chain towards the edge of the platform. It struck the edge of the platform and fell onto the body of the crane positioned on the ground below. The column hit Mr Zirilli between the legs as it tipped over and threw him off the platform onto the body of the crane below.
Mr Zirilli landed on the engine cowling of the crane before rolling off to land on the crane's turntable operating area on the tray of the truck on which the crane was mounted. Had he not landed on the crane, he would have fallen 6 metres to the ground.
The column landed next to Mr Zirilli a very short distance from his head and then partially slid off the truck. In so doing one end of the column punctured the sheet metal wall of the compressor building located adjacent to the crane.

INJURIES AND AFTERMATH

Mr Zirilli sustained a compound fracture to his tibia and fibula and a fractured right cheek bone and eye socket. He was in hospital for almost 2 weeks and underwent surgery on three occasions. It was only a matter of luck that he was not killed or catastrophically injured.
Mr Zirilli returned to work on 22 April 2015 on a graduated work plan. He transitioned over a number of months back into full-time work on administrative/light duties. Mr Zirilli was eventually able to resume workshop duties.

Absence of certified rigger/dogman

In the six weeks the work had been in progress at the premises prior to 21 January 2015 a qualified rigger/dogman employed by MIA Cranes had been present every day.
When ordering the crane from MIA Cranes to be used on 21 January 2015, Mr Steven Fedrigo was informed that the rigger/dogman he had used every day to that date on the job was unavailable to attend. He was asked if he wanted another rigger/dogman to attend in his place, to which he indicated that he did not want another rigger to attend the jobsite that day.
On 21 January 2015 Mr Grundy attended at the direction of MIA Cranes for the purpose of assisting Mr Ford in the set-up of the crane. Mr Grundy then left the site.
Neither Mr Zirilli, Mr Vaughan-Appel nor Mr Jones held a high risk work licence or other qualification in dogging or rigging. Mr Zirilli had minimal prior experience in rigging loads for lifting. Following the incident, SafeWork NSW commissioned an expert report from Mr Hamid Couri. Mr Couri said that the work should only have been done by a suitably qualified worker. The very fact that the accident happened demonstrates why this is so.

Absence of tag line

In his report, Mr Couri states that in the transportation of material by crane, tag lines should be used to control the movement, placement and lowering of loads. Tag lines keep personnel, including the person controlling the load, away from the load while in motion. Mr Couri expressed the view that if tag lines had been used, there would have been no need for Mr Zirilli to be near the column until it was resting horizontally on the platform. There would have been a "no go" zone in the vicinity of the column while it was suspended by the crane.
No tag line was present on the platform during the removal of the columns.
A tag line was not used in the removal of either of the columns from the platform.
A tag line had been used earlier in the job at the premises by a qualified rigger, but there was no discussion concerning the use of a tag line for the task of removing the columns on the day of the accident. In any event, use of a tag line to control a slung load should only be done by a qualified rigger.

Unsuitable rigging method

Mr Couri opined in his report that the rigging method adopted was an unsuitable method to attach columns to a crane. Such a method creates a danger, when the base of the column is placed on the ground, of the chain slackening and losing control of the column resulting in the column becoming unstable. In any event, rigging a chain to any load should only be done by a qualified rigger.

Prior conviction of the offender

The offender has no prior convictions under the Act or its predecessors. It has been in business since 1996.

Guidance Material

WorkCover NSW's Rigging Guide dated 1995 was in place at the time of the incident. The Guide states that there are three levels of high risk work licences for rigging - "Basic", "Intermediate" and "Advanced". This Guide makes it plain that demolition rigging is dangerous and requires various control measures to be in place - page 178. Persons carrying out or directly supervising rigging work in connection with the demolition of structures must hold an Intermediate Rigging Certificate - page 178.
Regulation 81 of the Work Health and Safety Regulations 2011 (WHS Regulations) states that a person must not carry out a class of high risk work unless the person holds a high risk work licence for that class of high risk work.
Schedule 3 of the WHS Regulations provides for the classes of high risk work inclusive of rigging. Schedule 3 states that intermediate rigging includes rigging work in the class of basic rigging as well as: 1. hoists with jibs and self-climbing hoists; 2. cranes, conveyors, dredges and excavators; 3. tilt slabs; 4. demolition of structures or plant; 5. dual lifts but excludes rigging work involving equipment related to advanced rigging.

Systems of work following the incident

On 22 January 2015 and on 13 March 2015 the WorkCover Authority issued Improvement Notices (7-273078 and 7-275007 respectively) to the offender.
In response to Improvement Notice 7-273078 dated 22 January 2015 the offender undertook the following steps: 1. A safety rail was placed along the edge of the building, so as to make the open edge safer; 2. The WorkCover Method Statements were reviewed in consultation with Mr Stuart Larkin, a SafeWork Inspector from Workcover NSW, and separate work method statements for High and Low Risk category jobs were implemented. The High Risk statement has sections which cover qualifications, licences, work cover approval, codes of practice and states that without the appropriate licence, employees are not permitted to carry out high risk work; 3. Staff were shown correct harness and lanyard attachment tools and placement, and they were then given instruction as to how to correctly wear a harness; 4. Mr Fedrigo liaised with Workcover during the last stages of the ice-plant demolition. Workcover approved the method of work and allowed the offender to proceed with the demolition.
In response to Improvement Notice 7-275007 dated 13 March 2015 the offender undertook the following steps: 1. An employment induction checklist was implemented to go with the offender's employment induction; 2. All staff were required to re-read and sign the policy and procedure manual, and employment agreement forms which had been revised to emphasise safe work practices. 3. The Work Method Statements were revised.
Mr Stuart Larkin inspected the site on 29 January 2015 and provided a factual inspection report. The offender gave evidence that since the incident it has worked with Mr Larkin to change the Work Method Statement used by the offender. SafeWork was given access to the offender's worksite and workplace, and all of the offender's employees were made available for interview. Mr Larkin, along with Ms Wren made a number of recommendations to update and improve documents and procedures that were in place. These recommendations were carried out and included: 1. Toolbox meetings; 2. Amendments to the Work Method Statemnts; 3. Sub-contractors and Employee Handbook; 4. Induction checklist; 5. Policy and Procedures Manual; 6. Employee agreements.
Since the incident Mr Fedrigo, on behalf of the offender has held regular toolbox meetings. These are held a minimum of once a month, but are more frequent if necessary. These meetings are primarily concerned with allowing employees to voice issues that they believe need to be discussed, but also are used to go over general procedures with staff.
Since the incident, the offender has endeavoured to keep up to date with Work Health and Safety obligations and procedures, and to ensure that staff follow all procedures and that safe work practices are put in place.
The offender required all employees to be 're-inducted' with a greater emphasis on safe work methods.
A log was created of the current qualifications of each employee, so that reference can be made to it when assigning employees specific tasks either in the workshop or on job sites.
The offender has instituted a policy to request new copies of licences from all subcontractors, and has reviewed all the licences of staff.
The offender has revised Mr Jones' role so as to ensure he only supervises small projects.

THE OFFENDER'S EVIDENCE

Mr Fedrigo and Ms Wren gave evidence by affidavit. Only Mr Fedrigo was cross-examined, to demonstrate that the instructions whch he gave to Mr Jones as to how to do the lifting job were inadequate. In any event they were not followed.
Mr Zirilli returned to work on 22 April 2015 on a graduated work plan. He transitioned over a number of months back into full-time work on administrative/light duties.
Mr Zirilli was eventually able to resume workshop duties. For the majority of this period Mr Zirilli was paid his full wage. The offender also supported Mr Zirilli in his further education at TAFE, paying for him to obtain his forklift license at a cost of $800, and also to continue his apprenticeship as a welder. Mr Zirilli became fully qualified as such in January 2017, and has chosen to continue his career with the offender.
Mr Steven Fedrigo and Ms Wren gave evidence that the incident placed a considerable burden upon them as officers of the offender, it has affected their health, their marriage and has caused them both much anguish. They have expressed remorse and contrition, and accepted responsibility. I accept that they are genuinely sorry.
The incident, Mr Fedrigo and Ms Wren assert, caused reputational damage and they believe that this has translated into a downturn in work.
In 2013 a major client of the offender went into liquidation with $190,000 owing to the offender. The offender asserts that it is still recovering from that loss.

Consideration

I have had regard to the objects of the Act set out in Section 3 and the purposes of sentencing set out in Section 3A of the Crimes (Sentencing Procedure) Act 1999.

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. It was reasonably practicable for the offender to ensure the health and safety of the worker by any one or combination of the following: 1. The offender should have ensured that work relating to the transporting of the columns by crane was performed by a person holding an appropriate high risk work licence, in particular rigging, for such work. Instead Mr Steven Fedrigo made the decision that he did not want another rigger to attend the jobsite on the day of the incident when informed the usual rigger was unavailable that day; 2. The offender should have ensured that Mr Zirilli was not required or permitted to undertake high risk work, in particular rigging, when he did not hold an appropriate high risk work licence. 3. The offender should have ensured that tag lines were attached to the columns while being transported by crane. 4. The offender should have ensured that a "no go" zone was maintained underneath and in the vicinity of each column while it was suspended by the crane and until the column was securely landed. 1. The cost to the offender of overcoming the risk would have been negligible, as had already been employing a rigger for 6 weeks prior to the incident, and had charged a contract price to Bartter based upon providing a crane and its operators and riggers; 2. Mr Zirilli was placed at risk of death or serious injury. The risk was of being struck, crushed, thrown or otherwise injured by an uncontrolled steel column while such column was being transported by crane; 3. The existence of the risk was known or should have been known as the risk was identified in the Work Health and Safety Regulations 2011 and WorkCover NSW's Rigging Guide dated 1995; 4. The risk of this accident happening was an obvious risk. 5. The likelihood of the risk coming home was quite high. 6. Simple remedial steps were available which would have completely avoided the risk. 7. The injuries sustained by Mr Zirilli on 21 January 2015 were a manifestation of the risk. 8. This was a one-off failure by the offender, not a prolonged course of conduct. 9. I find that the offender's level of culpability is in the mid-range.

Deterrence

The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37 at [180].
The penalty must reflect the need for specific deterrence. The offender is still conducting a business with 14 employees. Many of its operations involve the use of potentially dangerous equipment.

Aggravating Factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

MITIGATING FACTORS

The offender has no previous convictions: Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. It has had a clean record for the first 19 years of operation.
The offender was of good character: Section 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident including extensive support for the victim to enable his return to work, demonstrate this.
The offender is unlikely to re-offend: Section 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999. I accept the evidence of Mr Fedrigo and Ms Wren that they intend to make sure this sort of breach does not occur in the future.
The offender has good prospects of rehabilitation: Section 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 ever happening again.
The offender has shown remorse for the offence: Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence through Mr Fedrigo and Ms Wren that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Zirilli was caused by its actions.
The offender entered a plea of guilty: Section 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: Section 22(1) Crimes (Sentencing Procedure) Act 1999. In my view the offender entered the plea of guilty at the earliest possible opportunity, as soon as an Amended Summons and an Agreed Statement of Facts was produced. It is appropriate to apply a discount of 25%.
The offender gave assistance to law enforcement authorities: Section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with SafeWork.

Capacity to Pay a Fine

I am required to have regard to Section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
The offender initially submitted that it had a limited capacity to pay a fine, but that submission was very sensibly withdrawn. Capacity to pay therefore does not arise.

Costs

The parties have agreed to an order that the offender is to pay the prosecutor's costs as agreed at $32,500.

Penalty

The offender is convicted.
The appropriate fine is $160,000 but that will be reduced by 25% to reflect the plea of guilty.
I impose a fine of $120,000.
I order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
I order the offender pay the prosecutor's costs as agreed at $32,500.

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. Decision last updated: 22 September 2017

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Judgment (21 paragraphs)

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Cases Cited (9)

Cited By (1)