23 There is a preliminary issue to note. In addition to the defendants currently before me, there are two further co-defendants whose involvement in the factual matrix of the accident involving Mr Hill becomes relevant for the purposes of assessing the relative culpability of all defendants. Those other co-defendants are Skyrise Installations Pty Limited and Mr Domenico Vullo.
24 As reference to paras [2] to [8] of my liability judgment make clear, Australand was the head contractor overseeing a building project at Homebush Bay in Rhodes, New South Wales. Sassall was a principal contractor on that project for the manufacture and installation of curtain wall panels. Sassall, in turn, sub-contracted the installation of curtain wall panels to Skyrise. Mr Domenico Vullo, a director of Skyrise, was actively involved in overseeing the installation of the panels.
25 On 29 March 2003, while involved in the process of installing the curtain wall panels, and in circumstances essentially not disputed, an employee of Skyrise, Mr Robert Hill, fell some fifteen metres off the edge of one of the buildings under development and was severely injured.
26 In addition to the defendants now before me, both Skyrise and Mr Vullo were charged with an offence under s 8(1) of the Occupational Health and Safety Act 2000. As a director of Skyrise, Mr Vullo's offence under s 8(1) relied on the deeming provisions of s 26(1) of the 2000 Act.
27 Both Skyrise and Mr Vullo entered pleas of guilty to the offences charged and have already been dealt with by me. See my judgment in Matter No IRC 1173 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Skyrise Installations Pty Limited and Matter No IRC 1204 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Domenico Hans Christian Vullo (2006) NSWIRComm 316 delivered on 4 October 2006. That judgment is, in part, relevant in determining the issue of parity as between the defendants now before me and that of Skyrise and Mr Vullo in relation to the factual circumstances giving rise to the offences concerning all four defendants.
28 In considering the objective seriousness of the offence of the respective defendants, it is instructive to consider the task being undertaken by Mr Hill at the time of his accident. That task, as is abundantly clear, involved working from a significant height with a crane on its wheels under a heavy load. On any consideration where safety is paramount, that work, in the circumstances in which it was being undertaken, constituted a number of risks to safety - not just for Mr Hill but for all of the employees of Skyrise involved in that process.
29 A detailed description of the process being undertaken by Skyrise employees and particularly Mr Hill, in the task of installing the curtain wall panels, is set out in para [53] of my liability judgment.
30 By reference to para [53] and following, as well reference to annexure A in the liability judgment, the way in which the work was being undertaken required very careful considerations as to safety in installing the panels, both generally and in particular. In particular, a system of work was required to ensure that employees did not fall from the edge of the building while undertaking the work described. Further, when lifting the panels, that the crane was able to do so safely and was not placed in a situation that it could become unstable and, amongst other considerations, topple off the edge of the building. Both of those possibilities were identified in the Safe Work Method Statement prepared by Skyrise in relation to the Crane Set Up and Use for Panel Installation. That assessment, while identifying the risk of a worker falling off the edge of the building, was inadequate, in that it only assessed that risk when the worker was standing outside the safety fence line of the building. Having regard to the nature of the work being performed by Mr Hill at the time of his fall, it was imperative that he be attached to the static safety line at all times during the process of drawing back the crane in question. As the evidence disclosed, Mr Hill was permitted to unclip his lanyard from the static safety line once he was inside the open safety fence line notwithstanding he was pulling the crane backwards under a heavy load. At that time, the crane was mobile and inherently unstable.
31 Step 6 of the Safe Work Method Statement referred to above identified, in moving the crane into position, there was a risk of the crane rolling off the building. This Safe Work Method Statement, while referring to the risk of the crane rolling off the building, does so only in the limited circumstances identified in that Safe Work Method Statement. It does emphasise, however, by way of a control measure, to prevent the possible risk of the crane rolling off the building, that 'the crane is to be lowered onto the slab so that it has all four legs firmly on the slab floor'. As the factual circumstances involving Mr Hill's accident make clear, that was simply not the case. When the crane rolled off the building taking him with it, unattached as he was to the static safety line, the crane was not on its legs 'firmly on the slab floor' - it was on its wheels.
32 In my view, given the circumstances under which Mr Hill was operating when he was pulling back the crane under the load of the panel, there was clear and foreseeable risk to safety. That was that when the crane was on its wheels it was inherently unstable. It was foreseeable that, under load, the crane could, by simple momentum, roll forward and off the edge of the building, which is exactly what it did do. Given that possibility, it was essential that every practicable step be taken to ensure Mr Hill's safety. Ensuring his lanyard was attached to the static safety line at all times was an obvious and available step in that safe work system.
33 Further, quite apart from the relative instability of the crane at the time of Mr Hill's accident, there is the vexed question of the weight being lifted by the crane at the time of the accident relative to the certified weight lifting limit (WLL) of the crane. That information was essential in ensuring a safe system of work in the overall operation of installing the curtain wall panels. It was a factor known to both defendants before me. Prior to undertaking work on site, Mr Vullo, on behalf of Skyrise, was required to produce, quite properly so, certification as to the WLL of the crane. He was required to produce that certification both for Sassall and Australand. That fact simply affirms, in my view, the importance both defendants placed on the need to ensure, in undertaking the task at hand, Mr Vullo and the employees of Skyrise were utilising a crane that was properly certified to safely carry the weight of the panel required having regard to the way the in which the work was being performed.
34 The respective defendants, given their roles as head contractor and primary sub-contractor for the task at hand, had an absolute obligation pursuant to the Act, to ensure that the risks to safety the particular task at hand represented to the employees of Skyrise, were scrupulously considered and followed through with proper safe work methods. As the facts have highlighted, this was clearly not the case. In the first instance, there was an error on the part of employees of Sassall in conveying to Mr Vullo of Skyrise, the correct weight of the panel being lifted at the time of Mr Hill's accident. As the evidence confirmed, the incorrect information conveyed resulted in the crane lifting approximately 100kg in excess of its certified WLL.
35 The issue of the capacity of the crane was a matter of some considerable evidentiary moment before me. As the evidence disclosed, calculations based, in part, on photographs of the damaged crane undertaken post the accident by relevant experts concluded that the load bearing capacity of the crane being used by Mr Hill on the day of his accident was greater than the WLL as certified. Exactly what it was was not possible to definitively determine on the material before me. Notwithstanding that, this was a matter that the defendants made much of. It was, as I determined, ultimately irrelevant in my liability considerations. That is, at the time of the accident, both Australand and Sassall had been advised by the certification produced by Mr Vullo on behalf of Skyrise, that the certified WLL of the crane being used to lift the panels on site in the way that it was, was 400kg. Any weight lifted by the crane beyond that weight clearly represented a real risk to safety. As I said in my judgment on liability at [164]:
At the time the work was being performed, any weight lifted by the crane that went beyond 400kg created a potential risk to safety because it was requiring the crane to lift a capacity for which it was not rated and its actual capacity was not known in any accurate sense. In my view, it follows that once the crane lifted a weight beyond its rated WLL of 400kg, the operator was entering unchartered and potentially unsafe territory. Given the circumstances in which the work was being performed by Mr Hill and the importance of knowing the weight of the panel to be lifted relative to the WLL of the crane because of the danger of instability in the crane, a potential risk to safety arose. Once the crane lifted beyond its certified WLL of 400kg and, given the nature and circumstances of the work being performed, that potential risk to safety, in my view, included the crane becoming unstable and, under its overall weight load and under momentum, toppling over and off the edge of the building. It was not, in my view, a speculative or remote risk. It was a real and potential risk to safety.
36 It is hard to imagine that a crane in the circumstances in which it was being utilised, situated on the fourth floor of a building under construction with simply a wooden chock to prevent the crane, under momentum, toppling over the side of the building, does not represent a real risk to safety. In my view, it most certainly did. That it did is evidenced again by the fact that following Mr Hill's accident, the method of installing the panels being undertaken by Skyrise was changed and the panel installation was then undertaken by a Crawler Crane acknowledging that a potential hazard was overload structure capacity.
37 Both defendants and their respective employees on site were well aware of the need to ensure that the weight of the panel was clearly and accurately conveyed to Skyrise. Further, that it was imperative that the work method being adopted by Skyrise utilising the crane in the manner in which it was, was safe and adequate to lift the load required. It was also self evident, in my view, that if those two criteria were not absolutely established, a real risk to safety arose. As well, it was foreseeable, in my view, that that risk to safety involved the real risk of the crane becoming unstable and toppling off the building. Given Mr Hill was not attached to the static line at the time that occurred, it was entirely foreseeable, considering his action of pulling back on the crane. he was also at risk of falling with the crane.
38 I accept ultimately, the responsibility for ensuring the correct weight of the panel to be lifted having regard to the WLL of the crane rested with Mr Vullo on behalf of Skyrise. Nevertheless, that does not excuse the respective defendants before me. In my view, the way in which Sassall went about identifying the weight of the panels being lifted at the time of the accident was relatively ad hoc.
39 Mr Vullo gave evidence that in prior projects where Skyrise had been involved in installing curtain wall panels, each of the panels had their weight identified individually in them. This was not the case in relation to the circumstances prevailing on this project. In short, Mr Vullo had to make independent enquiries of the weight of the various panels that the crane was lifting on the project.
40 Following the accident involving Mr Hill, the Safe Work Method Statement, revised by Skyrise and insisted upon by Australand, was that each of the panels were to be marked with their weights by Sassall and cross referenced with crane load bearing charts and that the panel weights were to be marked on the panels prior to delivery to the site. The party that was in a position to do that latter task was Sassall who was responsible for the manufacture of the panels and their ultimate delivery on site.
41 Mr McGregor, the Occupational Health and Safety Co-ordinator for Australand on the site, indicated that whilst that step was implemented post the accident, there was still the possibility that the wrong weight could be placed on the panel and that could cause the same problems that had emerged in relation to the accident currently before me. I cannot totally dismiss that possibility but it was a step that was certainly designed to ensure that every practicable step was taken to convey to Skyrise the correct individual weight of each panel.
42 Having regard to the facts and circumstances as I have identified them, I assess each offence with respect to the two defendants before me as being above the mid range and towards the upper end of the scale of objective seriousness. I will assess penalty on that basis.
43 I turn now to consider the respective culpability of the defendants currently before me relative to that of Skyrise and Mr Vullo. On the evidence before me and having regard to the facts and circumstances I have considered, it is my view that the culpability of Australand and Sassall is less than the culpability of Skyrise and Mr Vullo. Mr Vullo and Skyrise were ultimately responsible for ensuring that their employees, and in this instance notably Mr Hill, were not exposed to risks to safety in the inherently dangerous task he was undertaking on the fourth floor of the building under construction. That does not excuse the defendants before me but I accept that the respective responsibilities of Australand and Sassall were one step removed from the ultimate responsibility that Mr Vullo had on behalf of Skyrise. That is, regardless of any other considerations, he took proactive steps to ensure the weight of each panel and that he properly considered the WLL of the crane relative to the individual weight of each panel before commencing the lifting process.
44 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. In relation to the defendants before me, considerations of general and specific deterrence are relevant to Australand. In relation to Sassall, general deterrence is also a relevant consideration. Because Sassall is no longer trading and the business has been sold, there is, it seems to me, no weight to be attached to applying specific deterrence as a consideration in relation to Sassall.
45 In relation to Australand, the defendant continues to operate in an industry that represents real and ever present risk to the safety of workers and this is particularly so in relation to fall safety considerations.
46 In relation to Australand, there is the issue of the earlier conviction that has been dealt with by me and mentioned in para [7] in this judgment. That is, the offence concerning the defendant Australand in relation to a workplace accident that occurred on 15 October 2003. That accident, which resulted in the death of Mr Joel Exner, was dealt with by me in July 2007. It was an offence that occurred after the offence which I am currently considering with respect to Australand. Counsel for the prosecution has contended that that conviction is a factor that should be taken into account in assessing Australand's overall character as a corporate citizen and, as I understand it, be a factor relevant to specific deterrence considerations.
47 I accept that there is some weight in the submission made by counsel for the prosecution on that point. In short, there are some similarities in Australand's failures having regard to Mr Exner's death and that of Mr Hill's injury. That is, both of them involved a fall by the respective employee from considerable heights. In relation to the offence involving Mr Exner, there was, as I determined in relation to Australand:
[64] The defendant's failure was a serious one. It was, however, a failure grounded, as I have already said, on an error of judgment. That error of judgment was based on the belief, not entirely unreasonable, that having drawn Mr Garry Denson's attention to the need to amend the JSA to reflect the safety measures to be adopted when installing the safety mesh, they would be implemented. As the subsequent events tragically demonstrated, that belief was misplaced.