WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd - [2001] NSWIRComm 264 - NSWIRComm 1996 case summary — Zoe

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WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd

[2001] NSWIRComm 264

Industrial Relations Commission (NSW)|1996-03-13|Before: Hungerford J, Cullen J, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1996-03-13

Before

Hungerford J, Cullen J, Mr J

Catchwords

05/25/2001 DATE OF JUDGMENT: 10/26/2001

Source

Original judgment source is linked above.

Catchwords

05/25/2001 DATE OF JUDGMENT: 10/26/2001

Judgment (43 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 PROSECUTOR WorkCover Authority of New South Wales (Inspector Martin Carmody) PARTIES : DEFENDANT Byrne Civil Engineering Constructions Pty Limited FILE NUMBER: IRC 2638 of 1999 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Plea of not guilty - Offence found proven - Assessment of appropriate penalty - Principles to follow in the sentencing process - Objective seriousness of offence in terms of its nature and quality - Subjective considerations particular to the defendant - Multiple contraventions charged as a single offence - Principle of totality - Responsibility of other persons involved in the same occurrence - Parity in sentencing - Contrition - Deterrence - No prior convictions - Defendant convicted - Fine imposed, with moiety to prosecutor - Defendant to pay prosecutor's costs. LEGISLATION CITED : Fines Act 1996 s 6 Occupational Health and Safety Act 1983 s 16(1) s 53 Benbow v Converquip Pty Ltd [2001] NSWIRComm 85 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v C I & D Manufacturing Pty Ltd (No 2) (1994) 60 IR 149 Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 CASES CITED : Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 Postiglione v R (1997) 189 CLR 295 WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) (2001) 103 IR 80 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263 WorkCover Authority of New South Wales (Inspector Gordon) v Walco Elevators Pty Ltd (unreported, Cullen J, 13 March 1996) WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 HEARING DATES: 05/07/2001; 05/25/2001 DATE OF JUDGMENT: 10/26/2001

[17]

6 Relevantly for present purposes in assessing penalty, the identified detriment to safety here was found to be "the presence of an unstable brick wall at the south western boundary of the Kent Road site and the risks to health and safety thereby occasioned to persons working near the said wall if it collapsed"; it followed from that that the essential element of the charge against the defendant was its "failure to make arrangements for ensuring safety and absence of risks to health in connection with the excavation work carried out adjacent to the free-standing wall" (103 IR at p 111 in par [50]). In determining the degree of culpability of the defendant in committing the subject offence, and having in mind the fundamental basis for its resistance to the charge was that it was not it but rather other persons (such as the developer, the design engineer and the principal contractor) who had responsibility for safety on the site and for what occurred, it is timely to repeat what I said in the earlier judgment (103 IR at p 109 in par [45]) : [45] The nature of the duty cast on the defendant by s 16(1) in relation to the work performed on the site on 15 December 1997 by Mr Whelan and Mr Twomey was, in terms of the sub-section, to ensure those two persons were not exposed to risks to their health or safety. In other words, and even though others (such as Develco, Consolidated Constructions and van der Meer Bonser) may have had a like obligation, the defendant here in conducting its undertaking was still subject to the statutory duty at the site concerned as its place of work. It is no answer to the charge, but as Mr Moore sought to put, that the Australian Standard in setting out guidelines for earthworks for commercial developments imposed duties on the designer of the project; the question here was not whether the defendant had breached the Australian Standard but rather whether it failed to comply with s 16(1) of the Occupational Health and Safety Act . Indeed, the fact that the two persons performing the excavation work were doing so at a location where they had worked for only a few days, and where other employers also were performing work, places, in my view, a special obligation on the defendant to ensure the workplace was safe and free from risks: see WorkCover Authority of New South Wales (Inspector Charles) v Mainbrace Constructions Pty Ltd (1999) 94 IR 451 at p 463.

[32]

17 In the present case, it is clear from the information provided in Mr Byrne's two affidavits sworn in May 2001 that although the defendant presently has no employees, no doubt managing its affairs through Mr Byrne as the director, it nevertheless continues trading at a not insignificant level in the industry and even though its paid-up capital is $2.00. On the evidence, it is open to conclude, as I do, that the respondent conducts a sizeable operation which, apart from Mr Byrne as the working director, regularly engages persons employed by labour hire companies to perform work for which it had contracted and where its equipment is utilised - that was certainly the case during the period in late-1997 to which the present offence related. In that situation, and having in mind the evidence as to the financial position, I do not see this as a case, as the Full Court observed in C I & D Manufacturing (No 2), "where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion, or where, as a matter of corporate structure, the burden of any fine levied would fall on one person or one family group ownership". In my view, it is appropriate in assessing penalty here to regard the defendant as a corporation but of a relatively small size and where any financial burden from a penalty would be met by one family. Even so, I necessarily must have in mind the comments of a Full Bench of the Court in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 in par [82], as follows : [82] However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp 209-210, Wright J, President observed : "... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ...

[38]

21 As I found in the judgment on liability, the essential element of the charge here was the failure by the defendant to make arrangements for ensuring safety and absence of risks to health in connection with the excavation work carried out adjacent to the free-standing brick wall. In a real sense, that element comprehends most, if not all, of the eight particulars referred to in the summons. However, it seems to me that the real measure of the culpability of the defendant was its failure in the first instance to properly identify a detriment to safety, namely, the presence of the unstable brick wall. That it did not do so represents, to me, the inherent nature of its failure because if it had so identified the risk created by the wall, it may reasonably be assumed, the taking of safety measures to obviate the foreseen risk would have occurred. In consequence of that view, the particulars of the offence contained in pars (a), (b) and (f) represent that essential failure as they were all concerned with an assessment or evaluation of the stability of the brick wall; the particulars in pars (c), (d), (e), (g) and (h), whilst important, all followed the initial failure to assess the stability of the wall. In terms, therefore, of the quality of the offence I view those last-mentioned particulars as secondary or subsidiary to the principal failure in pars (a), (b) and (f). In assessing the objective nature of the primary failure, I think it may be seen from what I concluded in the earlier judgment on liability (103 IR at p 113 in par [58]), as follows : [58] Particulars (a), (b) and (f) may be considered together as they all concerned an assessment or evaluation of the stability of the brick wall. I find them to have been established. It is undoubted on Mr Seamus Byrne's evidence, as set out in his record of interview of 19 December 1997, that the stability of the wall, including its footings and the saw cuts on the concrete driveway, was not examined, evaluated, checked or otherwise assessed by the defendant or by anyone on its behalf at any time prior to or during the performance of the excavation work contracted to be performed for Consolidated Constructions on the site. Mr Seamus Byrne thought he would have seen the wall during his visits to the site but other evidence by him conceded he was only ever about 60 metres to 100 metres from the wall at any particular time. His evidence was that he never examined in any way the excavations along the western boundary or the footings to the brick wall; and he was unaware prior to the incident on 15 December 1997 of the existence of the saw cuts in the concrete driveway on the property of The Blue Mountains Water Company. On the basis of that evidence, I do not accept his later evidence that he considered the wall to be safe and that from "visual examination there was nothing to raise any concern about it". Against these particulars, Mr Moore submitted that the observations of the wall by Mr Seamus Byrne and his conclusion, although perhaps erroneous, that it was safe meant the allegations in the particulars failed because indeed an "assessment" was made. I reject that submission.

WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd

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Judgment (43 paragraphs)

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Cases Cited (13)

Cited By (9)