WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd - [2000] NSWIRComm 40 - NSWIRComm 1997 case summary — Zoe

NSWNSWIRComm

WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd

[2000] NSWIRComm 40

Industrial Relations Commission (NSW)|1997-04-22|Before: Wright J, Fisher P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1997-04-22

Before

Wright J, Fisher P

Source

Original judgment source is linked above.

Judgment (97 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd [2000] NSWIRComm 40 PROSECUTION PARTIES : WorkCover Authority of New South Wales (Inspector Ian Frederick Tyler) DEFENDANT Abigroup Contractors Pty Ltd FILE NUMBER: IRC4981 of 1998 CORAM: Wright J President Occupational health and safety - Prosecution under s 15(1) of the OH&S Act - Plea of guilty - Construction industry - Fatal accident - Circumstances of alleged breach of safety - Sentencing in OH&S prosecutions - Principles applicable to sentencing under the OH&S Act - Gravity of offence - Approach to be adopted in relation to early plea of guilt - Significance of "paper systems" - Defendant convicted - Fine imposed. CATCHWORDS : Words and phrases - "paper systems". LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Davies v Supercoat Feeds Pty Limited (unreported, Fisher P, CT96/1020, 22 April 1997) Lawrenson Diecasting Pty Limited v Ch'ng (1999) 90 IR 464 CASES CITED : Page v Walco Hoist Rentals Pty Ltd (No.2) [2000] NSWIRComm 39 R v Winchester (1992) 58 A Crim R 345 Sydney City Council v Coulson (1987) 21 IR 477 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 HEARING DATES: 12/10/1999 DATE OF JUDGMENT: 04/04/2000

[17]

On the day, Inspector Murray Roy Brighton attended the site and made the following observations whilst standing in front of the Machine: (i) The machine spanned several metres and was supported on four tracks at each end of the Machine. The Machine appeared to have collapsed, forming a "V" shape, and was resting on the ground at the time of inspection (see Photograph No 2 in Annexure 1). (ii) The Machine comprised of the main chassis frame superstructure which supported the motor and controls for the Machine. (iii) On the right hand side of the main chassis structure (which was located on the eastern side) the Machine had a pair of telescopic adjustable beams that were capable of sliding inside the main chassis structure to allow the Machine to be reduced or increased in width (see Sketch No 1 in Annexure 2). (iv) On the left hand side of the main chassis structure (the western side) was a pair of 1.830 metre long extension beam sections that were bolted to the flange plates of the main chassis structure. The pair of telescopic adjustable beams were capable of sliding inside the 1.830 metre beam extensions and into the main chassis structure (see Sketch No 1 and Section AA View in Annexure 2). (v) A large shifting spanner with extended handle lay adjacent to Scott Nicholls who was located underneath the Machine. At the same place, two ring spanners and nuts and washers were lying on the ground (as shown in Photograph No 6 in Annexure 1). (vi) The northern side of the Machine (as indicated in Photograph No 7 in Annexure 1) shows the opposite side of the Machine. The Machine beams supporting structure was observed to be in collapsed "V" shape configuration. On site was a blue box containing nuts, bolts and washers that appear to have been removed from the flange plate. (vii) From the measurements taken (and shown in Photographs No 17 & 33 in Annexure 1) the adjustable telescopic sliding beams had projected through the pair of 1.830 metre beam extension sections into the main chassis superstructure beams by approximately 285 millimetres from where Scott Nicholls was stuck. (viii) The beam connection flange plates on the southern side had one bolt remaining in position and bolted from the main chassis side (this is depicted in Photographs 9, 10 & 11 in Annexure 1). The bolt had metal remaining on the last two turns of the bolt (the bolt is shown in Photograph No 46 in Annexure 1). Inspector Brighton took possession of the bolt. (ix) The manufacturer's compliance plate (depicted in Photograph No 4 in Annexure 1) states the following: 1. CMI Corporation Oklahoma City USA 2. Model Number 55148 3. Engineering Model Number SF-3004, Basic 4. ARR545101SN545105 5. Date Code 9608 6. Engine Power 325 HP/242 KW 7. 42,000 Pounds 8. 19068 Kilos N/N1 10168

[18]

On 8 November 1996 Inspector Brighton in the company of Inspector Swee Foong, a senior engineer from WorkCover, revisited the site at North Ryde and commenced inspection of the Machine. The Machine had now been separated and raised for inspection. It was supported on four support stands (as depicted in Photograph No 30 in Annexure 1). The following observations were made: (i) Measurements were taken of two CMI Corporation manufactured support stands (see Photograph No 23 in Annexure 1). The stand measured 1.7 metres long with 150 millimetre square round hollow section with a 300 millimetre square based plate. Connected to the main chassis superstructure were a further two stands (see Photograph No 30 in Annexure 1) connected to the 1.830 metre beam extension sections. (ii) The main chassis structure of the Machine had four (4) flange plates (see Section AA of Sketch 1 in Annexure 2 and Photograph No 34 in Annexure 1). The flanges had thirteen (13) holes in each flange plate and where a pair of 1.830 metre extension beams had been connected on both sides of the Machine. (iii) Of the total of 13 holes in the flange (see Photograph No 34 in Annexure 1) some were designed to accept conventional bolts, washers and nuts, while other holes were designed with an internal thread to receive bolts only. (iv) On the northern end of the main chassis structure, distinct shiny marks on the metal at the bottom of the main chassis beam were observed and measured to be approximately 18 millimetres from the edge (see Photographs No 45 in Annexure 1). (v) The main chassis structure beam on the southern side (accident side) shows the design of the sliding beams extending into the main superstructure chassis. This is the same design on the adjacent side of the Machine on the northern side. This allows the telescopic sliding beams on both sides of the chassis structure to pass each other for machine width adjustment (see Section AA of Sketch 1 in Annexure 2 and Photograph No 37 in Annexure 1). (vi) Inspector Brighton was advised by Keith Cassin, Plant Foreman for the defendant, that after the accident the flange plates had five threads that were stripped out and required caterpillar inserts to be fitted to repair the damage.

[26]

Richard French states that he did take some action in that he contacted Mr Shapin Sipherd of the manufacturer, CMI Corporation in the United States. French was advised by CMI Corporation that a revised manual would be available in late 1996. No further action was taken by either David Hall or Richard French to clarify the recommended work procedure of the manufacturer and the Machine continued to be used by the defendant. David Hall's own procedure was used up until the fatal accident to Scott Nicholls. After the accident, the defendant developed a work method statement which in part provided for the training of the concrete finishers on the use of the Machine ("Annexure 4"). The work of altering the width of the Machine is now carried out by concrete finishers who are supervised by appropriately trained and qualified fitters. The revised CMI Corporation Manual was made available to the defendant's employees in December 1996. There were no relevant substantive changes in the revised manual. 16. (i) Although the Machine was commissioned in May 1996, it was not until September 1996 that the Machine had to be altered in width. In September, the Machine had to be widened. This was achieved by the installation of a pair of 1.830 metre extension beam sections. On this occasion, David Hall supervised the said extension. Russell Kay assisted Hall at the relevant time. Support stands were put in place prior to the placement of the extension beam sections. (ii) The Machine required an alteration in width again in November 1996. On this occasion, there was a need to decrease the width of the Machine. This required the removal of the pair of 1.830 beam extension sections. On this occasion Hall assigned the task to Russell Kay, to whom he spoke prior to taking leave on 31 October 1996. Hall believed Kay was capable of carrying out the task. Kay was a qualified fitter and turner who had previously carried out many main frame changes on the Suburban Paving Machine as well as stripping the Machine. Hall alleges he instructed Kay to reduce the paver from 7.5 metres to 2.6 metres. 17. Hall alleges that he instructed the concrete crew in how to install and remove the extension. It is agreed that: (a) Hall supervised the installation of the extension and gave oral instruction in that regard. (b) Hall was not present on the day of the subject incident whilst the extension was in the process of being removed from the Machine for the first time. (c) Scott Smith who was a member of the crew on the date of the incident was not present during the installation of the extension. 18. On the day of the accident four crew commenced removing bolts from flange plates located on the telescopic sliding beam. According to Kay, he and the crew assumed the internal sleeve arm extended sufficiently to allow all the bolts to be removed without the stands in place.

[86]

Principles applicable to sentencing under the OH&S Act 21 The principles applicable to sentencing for offences under the Occupational Health and Safety Act which have been developed by this Court and its predecessors, were discussed in some detail in the judgment delivered earlier today in the matter entitled WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd [2000] NSWIRComm 39 at 21 to 26. It is therefore unnecessary to repeat that discussion in this judgment. Although somewhat simplified and without detracting from the more detailed discussion referred to, the crucial consideration is that the true measure of penalty lies in the nature and quality of the offence and although due allowance has to be made for subjective considerations, it is essential that the Court ensure that the allowance for those factors does not produce a sentence which fails to take account of the objective gravity of the offence. In assessing penalty, the maximum penalty available for the offence reflects the public expression by parliament of the seriousness of the offence with a large penalty indicating the gravity of the offence as perceived by the community. In those circumstances, the task of this Court is to assess the relative seriousness of the particular offence in relation to the worst case in which the maximum penalty is provided, having been increased to $500,000 shortly before the incident. The approach that courts should take in relation to that circumstance is well settled in that it requires the existing sentencing pattern "to move in a sharply upward manner". The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of the penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.

[89]

24 Although there was some difference in approach of the respective counsel in their analysis of the matter, the following at least seems to be either common ground, or established:- (a) The correct and safe procedure involves lowering the mainframe of the machine onto stands prior to commencing the actual adjustment process as to the width of the machine (see paragraph 16(i) and paragraph 21(i) of the agreed facts). (b) The accident occurred on 4 November 1996 because the supervisor at the time and the crew assumed that the internal sleeve arm extended sufficiently to allow all the bolts to be removed from the flange plates located on the telescopic sliding beam, without the stands being in place (see (a) above and paragraph 18 of the agreed facts). (c) The machine was commissioned on May 1996 and prior to the accident was only altered in width on one occasion; that is, in September 1996 when it had to be widened. On that occasion, the process was personally supervised by the relevant foreman, Mr Hall (see paragraph 16(i)). (d) The date of the accident represented only the second alteration in width to the machine since its commissioning. The operation was however not the same as on the earlier occasion - rather, it was the reverse of the earlier operation. On this occasion, the process was supervised by a Mr Kay, who had not supervised the process before although on the occasion in September 1996, he had assisted Mr Hall (paragraph 16(i) and (ii)). (e) Mr Hall's methodology, which was relied upon by the defendant, was developed at least in part because Mr Hall's view was that the manual available from the manufacturer did not clearly explain how to remove or install the beam extension sections. The removal or installation of those sections was the means whereby the variation in the width, by increasing or decreasing it, was achieved (paragraphs 6, 12, 14 and 16). (f) Mr Hall's previous supervision of the process was by means of oral instructions and actual personal supervision. Obviously, these were not available on 4 November 1996, because he was not present (see paragraph 16 and 17). It follows that no properly documented procedure was available to the crew working on the width reduction operation on the day of the accident. (g) Prior to the accident on 4 November 1996, the defendant had not conducted a risk analysis to identify potential risks or developed a written work method statement or written control measures in relation to the alteration of the paving machine SF3004. However, after the accident, the defendant had required its employees to undertake risk analyses on all paving machines, prepare procedural methods on how to assemble pan kits, placing pan kits into mainframes, and disconnection of pan kits from mainframes, risk assessment on the SF3004 machine in three track mode and on the other machines (paragraph 15 of the agreed facts and record of interview with Mr Hall, dated 9 December 1996 at page 20). (h) Immediately after the accident, stickers were displayed on the machine with a yellow background with black letters on them, which stated "WARNING this machine may fall and cause personal injury or death. Always install support legs before working beneath machine. See operator's manuals for instructions" (record of interview with Mr Hall dated 16 January 1997 at page 5). (i) Since the accident on the M2 site, documented work procedures were developed for the connection and disconnection of the pan section to and from the main frame of the various machines including the SF3004 Concrete Paving Machine and also for altering the width of the paver mainframe for the SF3004. Courses were run on site to ensure that personnel were familiar with the new work procedures. The subject work is now carried out and supervised by specifically trained staff and there has been a reorganisation of the way in which the work is performed. The new work method procedure contains, at relevant steps thereof, reference to the need for the use and installation of the support stands at the relevant steps in the procedures (see paragraph 15 and annexure 4 of the agreed facts; paragraph 22 of Mr Yates's affidavit and annexure "H" thereto). (j) The manual supplied with the Paving Machine did refer at appropriate points to the need to install stands (see for example pages 32 and 37 of the manual which is annexure 3 in volume 2 to the agreed facts, and which is referred to at paragraph 12 thereof). Nevertheless, Mr Hall devised and used his own methodology for the carrying out of each of the steps set out in the manual. The defendant relied on Mr Hall's methodology which had not been reduced to writing or otherwise documented for the benefit of workers required to carry out alterations to the width of the Paving Machine (see paragraph 12 of the agreed facts).