WorkCover Authority of New South Wales (Inspector Wong) v Aluminium Contractors Sales

APPLICANT: Mr Skinner of counsel SOLICTORS: Moray & Agnew Solicitors LEGAL REPRESENTATIVES: DEFENDANT: Mr Noakes, Solicitor SOLICITORS: Deacons Lawyers

JUDGMENT:

• 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

MATTER NUMBER IRC 6253 OF 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR WONG) v ALUMINIUM CONTRACTORS SALES (NSW) PTY LIMITED Prosecution under s.16(1) of the Occupational Health and Safety Act 1983 JUDGMENT

1 This is a prosecution brought under s16 of the Occupational Health and Safety Act 1983. The defendant pleaded guilty to the following charge: 'On 12 November 1997 at Australian Technology Park, Henderson Street, Eveleigh in the state of New South Wales, the defendant being an employer did fail to ensure that persons not in its employment, more particularly Paul Dillon, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking whilst those persons not in its employment were at the defendant's aforesaid place of work contrary to section 16(1) of the Occupational Health & Safety Act, 1983.

The Particulars of the charge are: 1. At all material times Paul Dillon ("the worker") was engaged as a plasterer/gyprocker at Australian Technology Park, locomotive workshop, Henderson Street, Eveleigh, New South Wales ("the site"). 2. The NSW Department of Public Works and Services ("the project manager") was the project manager in charge of construction work being conducted at the site. 3. On 28 October 1997 the project manager submitted Purchase Order No 591A137685 to the defendant agreeing to the defendant's quote dated 28 October 1997 to supply all plant, labour and material required to construct an Easiboard panel ceiling at the site ("the contract"). 4. Between 28 October 1997 and 12 November 1997 the defendant engaged Gridcon (NSW) Pty Limited [ACN 001 302 049] ("Gridcon") to co-ordinate the work required of the defendant pursuant to the contract with the project manager with respect of the installation of the ceiling panels ("the panels") at the site. 5. Gridcon, in co-ordinating the work required pursuant to the contract, organised the delivery of all materials including the panels and arranged, directed and instructed all necessary personnel in order to conduct the erection of the panels and their fixing within the ceiling at the site. 6. At no time on or prior to 12 November 1997, did the defendant instruct the worker as to the need to wear a safety belt or safety harness or any other type of fall protection device in carrying out the work that he was performing. 7. The defendant did not provide any training to the worker in relation to such safety procedures as would be prudent to be adopted in carrying out the type of work he was required to perform at all material times on 12 November 1997. 8. The structure into which the panels were to be fitted and secured consisted of a number of metal frame trusses with pressed metal roof purlins fixed on top of the trusses. The purlins formed frames onto which the panels were to be placed. The purlins which formed part of an existing structure were about 8 metres above the floor level of the site. 9. The floor level of the site beneath the purlins consisted of a sandy loam type of soil. 10. The panels which were to be installed and fixed to the metal purlins measured approximately 3 metres in length by 1.2 meters wide and had a depth of 5 centimetres. 11. The worker had commenced work at the site at about 6.30am on 12 November and ascended via a ladder to the area approximately 8 metres above the ground level of the site where the panels were to be laid across the purlins and fixed in position. 12. At the time the worker commenced work on 12 November 1997 there were already areas existing where panels had been laid in position on the roof purlins which areas were being used as a platform/floor and in carrying out the work in laying further panels the worker walked across those ceiling panels which were already placed in position. 13. At about 7.30am on 12 November 1997 the worker was walking on the laid panels platform/floor area and carrying out his work when a panel collapsed underneath him and he fell a distance of some 7.5 to 8 metres and landed on his buttocks on the ground below after having struck a 44 gallon drum during the course of the fall. 14. As a result of the worker falling he sustained a number of injuries including a cracked pelvis, a fractured sacrum and a large wound to the top right side of his buttocks and other injuries as a consequence of which he required hospitalisation and was unable to work for a period of in excess of thirty days. 15. At the time the worker fell there were in excess of five other persons working on the panels, the nearest one being only approximately one-half metre away from the worker. 16. The worker had never previously carried out work involving the installation of Easiboard ceiling panels. 17. At the time the worker fell he was not wearing any safety belt or safety harness or any other type of fall protection. 18. At the time the worker fell there was no fencing or guard-railing in place around the perimeter of the area where the panels had already been laid which area was being used as a working platform or floor to facilitate the installation of the panels to the remaining area. 19. At the time the worker fell there was no suitable or safe scaffolding in place and the platform/floor area upon which the worker worked was not of such solid construction to enable his work to be done safely. 20. At all material times the defendant was carrying out building work within the meaning of the Construction Safety Act, 1912. 21. At all material times on 12 November 1997 the worker was carrying out work at a place from which he was liable to fall a distance of more than 1.8 meres and the defendant failed to provide fencing or any other means to secure his safety.'

2 An agreed statement of facts was tendered, which provided: '1. At all material times the Prosecutor was an Inspector duly appointed and empowered by section 48 of the Occupational Health & Safety Act, 1983, to institute the proceedings in this matter.

At all material times the Defendant was a company duly incorporated in NSW with its registered office at Unit 2, 235 Rocky Point Road, Ramsgate NSW 2217, in the state of New South Wales.

At all material times the Defendant was an employer, and conducted the business undertaking of the installation of roofing-ceiling systems in commercial and residential buildings.

At all material times and in particular on 12 November 1997 the Defendant was conducting its said undertaking at a locomotive work shop at Australian Technology Park, Henderson Street, Eveleigh, NSW in performance of a contract with the NSW Department of Pubic Works & Services "DPWS" for the installation of a new ceiling system in the said workshop.

At all material times and in particular on 12 November 1997 DPWS was in contract with the Defendant for the installation of a new ceiling system which consisted of placing "Easiboard" ceiling panels, being compressed fibre cement sheets, on steel purlins suspended from the interior of the roof of the premises and laying Villaborad, with sealed joints, on top of the Easiboard.

At all material times and in particular on 12 November 1997 the Defendant had entered into an arrangement with Gridcon (NSW) Pty Limited ("Gridcon"), whereby Gridcon would install the new ceiling system and the Defendant would supply the Easiboard.

As at 12 November 1997 Gridcon employed Paul Dillon as a plaster and ceiling fixer ("the worker").

On the morning of 12 November 1997 the worker was in the ceiling cavity of the locomotive work shop installing Easiboard panels into the ceiling system. He was standing on already installed panels to do so, when he fell through.

The worker fell approximately 7.5 metres to the floor below. The floor consisted of a sandy loam type of soil. The worker broke his fall by hitting a 44 Gallon drum during the fall. Nonetheless he suffered serious injuries including a cracked pelvis, a fractured sacrum and a large wound to the top right side of his buttocks approximately 20cm long, left arm haematoma and severe swelling and bruising of his back.

At the time the worker fell, the worker and a number of other persons were performing work in relation to the installation of the panels. One of these other workers was about one-half of one metre away from the worker when he fell. Only the worker and the person about one-half of one metre away from him were standing on already installed panels when the worker fell.

At the time the worker fell he was not wearing any safety belt or safety harness or any other type of fall protection. Observations by WorkCover Inspectors when they attended the scene some hours after the fall revealed some fall harnesses, lanyards and one rope in the ceiling work area, but some distance from the site of the fall. There were no attachment points evident for this equipment, and in any event there was equipment sufficient only for use by one person.

At the time the worker fell there was no fencing or guard railing in place around the perimeter of the area where the panels had already been laid which area was being used as a working platform or floor to facilitate the installation of the panels to the remaining area.

At the time the worker fell there was no suitable or safe scaffolding in place and the platform/floor area upon which the worker worked was not of such solid construction to enable his work to be done safely although the manufacturer's specifications for the Easiboard provide that when it has been properly installed it will support the weight of workmen and their tools.

At all material times the Defendant was carrying out building work within the meaning of the Construction Safety Act, 1912.

At all material times on 12 November 1997 the worker was carrying out work at a place from which he was liable to fall a distance of more than 1.8 metres and the Defendant failed to ensure that fencing or other means to secure his safety were provided.

The worker had never previously carried out work involving the installation of Easiboard ceiling panels, however at the time of the accident the worker was 40 years of age and had worked for Gridcon for 4 years.

At no time on or prior to 12 November 1997, did the Defendant ensure that the worker was instructed as to the need to wear a safety belt or safety harness or any other type of fall protection device in carrying out the work that he was performing.

The Defendant did not ensure that training was provided to the worker in relation to procedures as would be prudent to be adopted in carrying out the type of work he was required to perform at all material times on 12 November 1997.'

3 Evidence was called from the prosecutor, Inspector Wong and from Mr Alan Pakes, a director of the defendant. 4 After the hearing, the defendant filed a Notice of Motion raising the circumstances in which the summons had been issued. That Notice was not pressed and it was agreed that no order as to costs would be sought in respect of that motion. 5 The prosecution arose in somewhat unusual circumstances. The defendant had been engaged by the Department of Public Works and Services ('the Department') to install a ceiling in a large building to be used as a workshop at the Everleigh site in Sydney. The work required the installation of 'Easibord' and the laying of 'Villaboard' on top. The defendant arranged for another company, Gridcon (NSW) Pty Limited ('Gridcon') to perform the work required in relation to the laying of the Villaboard. 6 After these arrangements had been made, Mr Pakes decided to travel to New Zealand to visit a friend who had been very ill. As he was to be away during the time that it had been arranged for the work to be performed which the Department required to be done urgently, he arranged with Mr McMartin that Gridcon take over the whole of the job, apart from the supply of the Easibord. The work was later performed by Gridcon as arranged and it was one of its employees who was injured in the circumstances set out in the agreed statement of facts. The accident occurred while Mr Pakes was in New Zealand. There was no question that neither he nor any employee or other subcontractor of the defendant had anything to do with the work. The defendant's practical involvement in the job therefore was as the supplier of the Easibord to Gridcon. The work required by the Department was performed by employees of Gridcon under its control and it was one of Gridcon's employees who was injured. 7 Despite this arrangement, an invoice for some $93,000 was sent by the defendant to the Department when the job was completed. The defendant retained out of that sum only the amount agreed with Gridcon in relation to the supply of the Easibord. The balance was paid to Gridcon. In total the defendant received a payment of about $1,600 for its involvement in the job. Mr Pakes explained that it had been agreed that the paper work would be handled in this way, because it seemed the easiest course at the time, given his unexpected trip to New Zealand and the Department's need to have the work performed quickly. 8 Further complicating this picture was the fact that Mr McMartin had supplied two work method statements to the Department in respect of the job, using the defendant's letterhead. On Mr Pakes' evidence, he first became aware of this in October 1999 when shown the documents by Inspector Wong, while giving a statement during the Inspector's investigation of the accident. Mr Pakes' evidence was that he did not know why Mr McMartin had used the defendant's letterhead, or how it had come into his possession. 9 When Mr Pakes later asked Mr McMartin about this, he was told not to worry because Gridcon had also supplied another work method statement on its own letterhead to the Department, a copy of which was supplied to Mr Pakes. 10 It was common ground that arising out of these events, prosecutions under the Act had been launched against the defendant, the Department and Gridcon. The prosecution of the Department had recently been discontinued, Gridcon had entered a plea, which had not yet been determined and the prosecution of Mr McMartin had also been discontinued. 11 The case advanced for the prosecutor by Mr Skinner of counsel was that the risk to safety in this case demonstrated by the agreed statement of facts was a serious one, which had lead to serious injuries being inflicted upon Mr Dillon. The accident had occurred because the work in question was performed without the use of appropriate safety equipment which had given rise to the various prosecutions. It followed, so it was submitted, that a penalty in the mid-range would be imposed. 12 The defendant's entitlement to a reduction in penalty as a result of the early plea of guilty and the co-operation with the WorkCover Authority was however acknowledged, as was the fact that it was the defendant's first offence. It was however submitted that the circumstances were not such that the matter should have been prosecuted before the Chief Industrial Magistrate, or that no penalty should be imposed. 13 It was also submitted that this was not a case where considerations of parity in sentencing would give rise to any reduction in sentence. This followed, so it was submitted, because Gridcon and the Department had been prosecuted and that it would be inferred from the decision not to continue with the prosecution against the Department, that it had no responsibility in respect of the risk to safety which had given rise to the various prosecutions. As to any reliance on the views expressed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Another (2000) 95 IR 383, they would not be followed because they were obiter and, in any event, arose in circumstances materially different to those under consideration here. 14 It was also submitted that it would not be appropriate to deal with this defendant in accordance with the approach discussed in Haynes v CI & D Manufacturing Pty Ltd (No2) (1995) 60 IR 455, because the evidence demonstrated that this was a substantial enterprise. 15 As to the penalty, it was submitted that it would be proper to impose a penalty in the mid-range, having in mind a maximum penalty of $550,000. 16 For the defendant the case advanced by Mr Noakes solicitor, was that in assessing the objective seriousness of the offence and the defendant's culpability, the Court would accept that the plea had been entered having in mind the expansive construction which had been adopted in relation to s16 of the Act. The defendant accepted in that light, that it had some responsibility for not having taken steps to ensure that Gridcon had acted to ensure the safety of its employees, in accordance with the discussion between Mr Pakes and Mr McMartin, as to the steps which Mr Pakes had planned to take to ensure safety, if the defendant had performed the work, as originally planned. 17 In this respect, it was relevant that the quote submitted by the defendant had included the cost of hire of safety equipment which Mr Pakes intended to use and that this defendant had never had an accident or prosecution in respect of any injury to its employees, despite some 25 years of operation in an inherently dangerous industry. 18 It was submitted that the Court would accept that the defendant was to be treated in the way discussed in Haynes (No 2). Further, in the light of the fact that all of the prosecutions in relation to this matter had been launched on the last day prior to expiry of the limitation period and that the Department, which was in control of the site at which the work in question was performed, was no longer at risk of penalty in relation to its obvious culpability in respect of the matter, the penalty which the Court imposed would be at the lowest end of the range. It was also submitted that any costs order should be approached on the basis that in the circumstances the prosecution of this defendant should have been taken before the Magistrate and not the Court.

Consideration 19 The approach to be adopted to sentencing in respect of offences committed under the Act is well known, it must be approached in the context of the nature and quality of the offence in question. This is a matter to which I will return below. 20 The principle of parity also has application to sentences imposed under the Act, as discussed by the Full Court in Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at pp340-341, where the approach of the High Court in Postiglione v The Queen (1997) 189 CLR 295 at p304 was followed. The principle is concerned with the concept of equal justice and apparent discrepancy or disparity in sentencing. 21 Under the Act such concerns arise because it is often the case that prosecutions of more than one offender flow out of the same circumstances, in many cases under different sections of the Act. In Warman the Full Bench observed at p341 that: 'While the offences with which we are dealing under the O H & S Act do not involve the notion of co-offenders, the fact is that the same circumstances have given rise to prosecutions for offences under ss 15 and 16 of the O H & S Act of the direct employer, Drake Personnel Ltd t/as Drake Industrial which supplied the labour involved, and the defendant here who utilised that labour in relevant circumstances. While those defendants have been found guilty of different offences, nevertheless the factual circumstances giving rise to the charges justify an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe .'

22 Mason J had there said: '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. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.'

23 Prosecutions under the Act may, of course, be launched against a Department of the Crown. One can readily appreciate a sense of disquiet arising when another defendant enters a plea of guilty to an offence, which has arisen out of the same factual circumstances which have led to a prosecution being launched against the Crown, only to later learn that the prosecution of the Crown has been abandoned. 24 Here it was the Department who had control of the site in question, while the work which gave rise to the prosecution was being performed, at a time when the defendant was not involved in either the performance or supervision of the work, yet the prosecution of the Department has been abandoned. 25 That there might be some effect upon public confidence in the integrity of the administration of justice flowing from such circumstances can be readily appreciated, especially in the absence of some explanation for the discontinuation of the proceedings against the Department. In the circumstances, it is not open, in my view, for the Court to simply infer from the fact that the prosecution has been abandoned, that the Crown had no responsibility in respect of the risk to safety in question. Nor, however, do I consider it open to infer that the prosecution would have been successful, had it been pursued. 26 Questions of parity of sentencing only arise if there is a conviction arising out of the prosecution of separate offences flowing out of the same circumstances. Nevertheless, it can not be doubted that the proper course in circumstances such as this is to take note, as a relevant agreed fact, that the prosecution against the Department has been abandoned. This is consistent with the discussion of the Full Court in Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 at pp322-323, where it was observed that: 'On appeal, we were advised that the prosecution which had been commenced against a member of the staff of Public Works had been withdrawn, and that Public Works was never prosecuted in relation to the tragic accident despite what was, on the evidence, the instrumental part played by it. The absence of prosecution of other parties, on whom the appellant had reasonably relied, underlines the cogency of argument presented on appeal that the sentence gave rise to a justifiable sense of injustice.'

27 This approach was applied by Hungerford J in Wong v Melinda Group Pty Limited (1998) 82 IR 118, where his Honour concluded that there had been no prosecution of those with whom the real culpability for the risk to safety being in question lay. In that case, the defendant pleaded guilty and received the benefit of s556A of the Crimes Act 1900, (see now s10 of the Crimes (Sentencing Procedures) Act 1999). A similar approach was discussed by Walton J in McDonald's at p437. In accordance with that approach, I have taken note of the fact of the pursuit of this prosecution against the defendant, in circumstances where the prosecution of the Department has been abandoned. 28 Also to be considered in assessing penalty are the plea of guilty entered early in the proceedings by the defendant and the co-operation it afforded the prosecutor through Mr Pakes. This approach now accords with the requirements of ss22 and 23 of the Crimes (Sentencing Procedures) Act 1999. Since the hearing of this matter the Court of Criminal Appeal has given judgment in R v Thomson; R v Houlton [2000] NSWCCA 309. The principles stated in that case have now been applied by this Court in a number of cases. (See for instance WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of NSW [2000] NSWIRComm 179; WorkCover Authority of New South Wales (Inspector McKenzie) v Waste Recycling & Processing Services of New South Wales [2000] NSWIRComm 218 and WorkCover Authority of New South Wales v Belmadar Constructions Pty Ltd [2000] NSWIRComm 206). The principles established in Thomson arise for consideration here. In this case the maximum discount of 35% is plainly appropriate for reasons expanded on below and I have applied it. 29 Account must also be taken of the defendant's prior record, which in this case was, on any view, excellent. The penalty imposed as a result must, of course, remain proportionate to the nature and circumstances of the offence in question, reflective of the defendant's culpability in respect of the offence in question. 30 As I have already noted, the assessment of penalty is fundamentally concerned with an assessment of the nature and quality of the offence in question. On the evidence, there can be no doubt that there was a serious risk to safety in this case, which in fact led to serious injury being inflicted upon Mr Dillon, who was no doubt fortunate not to have been even more seriously hurt. An employee working at a significant height above ground level in order to lay a floor, in the absence of readily available and foreseen safety measures, is at obvious risk of injury. 31 The defendant's involvement in the events in question and its culpability in respect of what occurred must thus be considered. The defendant was engaged by the Department to perform the job of installing the floor in question and prepared its quote on the basis of certain safety measures to be implemented, which included the hire of particular equipment. When Gridcon stepped into the defendant's shoes, as the result of Mr Pakes' trip to New Zealand, Mr Pakes explained to Mr McMartin what steps he had planned to implement to deal with safety requirements on a site visit. This evidence was consistent with the defendant's record as to safety matters and was reflected in the quote which Mr Pakes had prepared, which costed in the hire of various safety equipment. 32 It is unquestionable that Mr Pakes and the defendant thereafter had nothing further to do with the work. Mr Pakes was unaware of the work method statements Mr McMartin later supplied the defendant and was in New Zealand at the time of the accident. Perhaps he should have done more, but given the defendant's diminished involvement in the job as the result of Mr McMartin's decision that he could not pursue the work because he had to go to New Zealand, the defendant's failure to involve itself further in the steps taken as to the actual performance of the work was perhaps understandable. 33 The defendant's final role was as the supplier of the Easibaord used on the job, under the arrangement made with Gridcon and the Department. While there was no evidence from Mr McMartin, or from Mr McMyllin of the Department, who was involved in these arrangements, in my view there is no reason to doubt Mr Pakes' evidence that the Department was aware of the defendant's diminished role in the work which was to be taken over by Gridcon as the result of Mr Pakes' trip to New Zealand. While I was invited to be sceptical of what was advanced, I am not inclined to adopt that approach, particularly having in mind the defendant's guilty plea and the decision not to pursue the prosecution of the Department. It was also relevant that there was no suggestion that I should doubt Mr Pakes' evidence that the Department had itself not provided the defendant with any information or direction or outlined any requirements which it had as to how the work in question should have been performed having regard to safety considerations. 34 It follows, in my view, that the proper conclusion from all of the evidence is that the defendant's culpability for what occurred was low and that the sentence imposed must reflect this. In view of the circumstances there can be no doubt that the plea in this case evidenced real measure of contrition. 35 Account must also be taken of the nature of the defendant, undoubtedly a family company of which Mr Pakes and his wife were the sole directors, but, nevertheless, an entity with a substantial business and making respectable profits. (See Haynes (No 2) at p457). 36 As to the decision to prosecute this defendant before the Court, it was a puzzling one on any account. The statement taken from Mr Pakes was taken in October 1999, a long time after the accident in November 1997, with the result that this prosecution was launched on the last day for expiry of the limitation period. On any view, the defendant had little involvement in, or control of, the work which led to the risk to safety. 37 It might have been thought that the circumstances were such that culpability would be denied. Nevertheless, on legal advice a plea was entered, reflective no doubt of the defendant's involvement in the job initially and the later arrangements made for payment of the sums due to Gridcon. This circumstance undoubtedly assisted the prosecution in obtaining a conviction in this case. The sentence which properly flows from all of these facts must be assessed. Having in mind all of these matters, I have come to the conclusion that a penalty at the lowest end of the scale is appropriate. This is reflective of the defendant's culpability in respect of this offence, all of the circumstances I have mentioned, the fact that it was a first offence for a defendant with an impressive record and approach to safety and the reductions and discounts which must flow from an early plea and co-operation on the basis I have earlier outlined. I reject the submission of the prosecutor, that this offence should have properly lead to the imposition of a mid-range penalty, in a scheme where the maximum penalty was $500,000. 38 I also have difficulty in coming to the view that the circumstances of the defendant's first offence in this case were such that these proceedings were appropriately brought in this Court rather than before the Magistrate. This conclusion will be reflected in the costs order which I will make. 39 In all of these circumstances, I have concluded that the proper penalty is $5,000.

Orders 40 For all of these reasons, I find the defendant guilty of the offence charged and make the following orders:

1. The defendant is to pay a fine of $5,000 with a moiety to the prosecutor.

2. The defendant is to pay the prosecutor's costs, other than in relation to the defendant's Notice of Motion, as agreed or assessed, but on the basis of the costs which would have been payable had the prosecution been brought before the Magistrate.

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