WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v Christian MacDonald

PROSECUTOR: Ms L McManus of counsel LEGAL REPRESENTATIVES: DEFENDANT: Mr R Dalgleish of counsel

JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 16 December 2004

Matter No IRC 6520 of 2003 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KENNETH GEORGE MARTIN) v CHRISTIAN MACDONALD Prosecution under s9 of the Occupational Health and Safety Act 2000

1 On 15 November 2001, the defendant exposed Gordon Joseph McMullen, to risk of fatal injury while he was at the defendant's place of work, when a pole erected as a part of the structure of a shed, fell and struck Mr McMullen. The defendant accepted that he had breached the obligation imposed upon him by s 9 of the Occupational Health and Safety Act 2000, that he not expose non employees to risks to their health, safety and welfare from the conduct of his undertaking, while they are at his place of work.

(a) The defendant failed to provide at the construction site a safe system of work for the erection of the farm shed/carport;

(b) The defendant failed to ensure that Mr McMullen, a visitor to the construction site, was not exposed to risks of injury while at the said construction site;

(c) The defendant failed to ensure that Mr McMullen, while at the said construction site, was kept at a safe distance from where overhead work was being carried out;

(d) The defendant failed to conduct a risk assessment prior to work commencing;

(e) The defendant failed to provide information and instruction as may be necessary to ensure the safety of non-employees including Mr McMullen at the construction site;

(f) As a result of the said failures Mr McMullen was placed at risk of injury and in fact suffered fatal injuries.

3 The agreed statement of facts relevantly provided: 1. On 14 and 15 November 2001 Christian MacDonald (the Defendant) was self- employed. 2. On 14 and 15 November 2001 the Defendant's place of work was the construction site of a partially completed farm shed/carport for vehicular and equipment storage (the construction site) located at 276 Nolans Road, Stokers Siding, New South Wales (the premises). 3. At all material times Mr Edmond Kuipers and Ms Deborah Burton owned and occupied the premises. 4. At all material times Mr William Gerard Marshall trading as King Camphor owned and operated a truck with a mounted crane, registration number XGR 921 (the truck). 5. On 14 and 15 November 2001 the Defendant's undertaking was the construction of the farm shed/carport. His role was to assist Mr Kuipers in the construction of Mr Kuipers' farm shed/carport. 6. On 14 and 15 November 2001 the Defendant's place of work was the construction site. 7. Prior to 15 November 2001 the Defendant attended the premises to collect his step-daughter who was a friend of Mr Kuipers' daughter. Whilst at the premises Mr Kuipers asked the Defendant if he would assist in the construction of a farm shed/carport. 8. The farm shed/carport was to be built of hardwood. Mr Kuipers showed the Defendant some old treated poles similar to old telegraph poles about 6.5 metres in length and weighing about 250 to 300 kilograms each to be used in the construction. 9. Mr Kuipers asked the Defendant if he would cut the poles by chainsaw. 10. Prior to the Defendant attending the premises to work Mr Kuipers levelled the area of the construction site and dug holes for the poles to be placed in to a depth of about 1.4 metres. 11. On 14 November 2001 the Defendant and Mr Lacey (a bobcat operator) attended the premises. 12. No risk assessment was carried out prior to the work being undertaken. The construction method was as Mr Kuipers asked the Defendant to do it and Mr Kuipers and the Defendant discussed the way it was to be carried out as they went along. 13. Mr Kuipers and the Defendant did not discuss whether the Defendant was to be paid but it was expected that the Defendant would receive remuneration in some form for the work that he did. 14. With the assistance of a bobcat operator, the Defendant stood twelve poles into the holes that Mr Kuipers had dug. The Defendant and Mr Kuipers identified that there were not enough poles and that further poles would be needed to finish the job. 15. The Defendant contacted Mr Marshall trading as King Camphor and asked Mr Marshall to deliver to the construction site more poles and to assist with the construction of the farm shed/carport. 16. It was expected that Mr Marshall would have been paid for the poles and the use of the crane. 17. The Defendant backfilled the holes, levelled the poles and rounded them up at the construction site. 18. On Thursday 15 November 2001 at about 11am, the Defendant attended the construction site to work. The Defendant cut the poles to length by chain saw. 19. Mr Marshall used the crane, mounted on his truck, to erect the poles. Each time the Defendant, Mr Marshall and Mr Kuipers completed putting an horizontal pole in place Mr Marshall would have to move the truck. 20. The crane was operated by Mr Marshall standing on the back left hand side of the truck facing the front as he leant to operate the controls (see photograph 9). 21. The crane operated by Mr Marshall lifted the poles and placed them horizontally on top of the vertical standing poles which had been placed in the holes. Photograph 1 of 15 shows the horizontal and vertical poles in place. 22. To lift a pole a chain connected to the crane was tied around the centre of the pole (see photographs 2 and 8). 23. Mr Kuipers was present while the work was being performed. 24. For the large poles one of the men assisted by holding the tail rope and guiding the poles. For part of the work this was done by Mr Kuipers. 25. Mr Kuipers directed that the lighter poles were to be placed at the back of the shed frame which was to be the back awning of the shed. 26. Prior to the accident the horizontal poles were not tied down after being placed on the vertical standing poles: see photographs 4 and 13. 27. At about 1pm Mr Glenane, a bobcat driver, attended the construction site and commenced working with Mr Kuipers, spreading gravel. 28. About 17 poles had been placed in the ground. About six horizontal poles had been placed on the vertical poles by Mr Marshall that day. 29. To place the horizontal poles on the vertical poles an area was cut out of the horizontal pole at each end (mortice) so that the horizontal pole would sit on the top of the vertical pole (see photograph 5). The morticing was done by the Defendant. 30. To place the smaller logs the end was cut into a point (pointing): see photograph 2 and 6. The point was then fitted into a vertical pole. The pointing was done by the Defendant. 31. When the men had about two more poles to position, Mr Gordon Joseph McMullen attended the construction site. Mr McMullen was a flatmate of the Defendant. Mr McMullen had attended the premises as he and the Defendant intended going fishing that afternoon after the work was finished. 32. Mr McMullen assisted the placement of the poles by holding the tagline. Mr Kuipers at this stage was working nearby with the bobcat driver. 33. The Defendant was standing on the back of the truck with the chainsaw (see photograph 15). He had a conversation with Mr McMullen about attending a funeral for Mr McMullen's step-brother at Sydney. Mr McMullen was standing on the right hand side of the truck. 34. A pole had been placed onto the back of the truck and Mr Marshall intended to pick up another pole and place it on the truck to take to the next bay. The pole was on the ground next to the truck and was connected to the crane by chain ready for lifting. 35. The pole was one of the smaller poles and it did not have a tag line on it. 36. The Defendant turned away from Mr McMullen and commenced the chainsaw and started pointing another pole. The crane operated by Mr Marshall commenced lifting the pole attached to the crane. 37. About a minute later the Defendant heard Mr Marshall yell out. The Defendant stopped the chainsaw and turned to Mr McMullen. Mr McMullen had been hit on the back by a falling horizontal pole. 38. Mr McMullen had been working at the site for an hour or so. 39. The horizontal pole which hit Mr McMullen had been in position on top of 2 vertical poles: see photograph 3. 40. It is not clear whether the pole being lifted by Mr Marshall hit the horizontal pole causing it to fall or whether the crane being operated by Mr Marshall hit the horizontal pole causing it to fall. It is the Defendant's understanding that the jib of the crane bumped the big horizontal pole, causing it to fall. 41. Mr McMullen suffered a disrupted pelvis. He was taken to hospital and died later the same day. 42. The horizontal pole was, in the Defendant's judgement, thinner than the other big horizontal poles. The mortices for this pole were only cut about 30mm deep (not as deep as the mortices on the other horizontal poles) so that it would sit higher on the top of the vertical poles. This was done so that the roof would be level: see photograph 5. 43. The pole being lifted was of varying weights and thickness along its length. When lifted by a chain attached to the middle of the log it could swing or dip. 44. The Defendant had not done this type of work for Mr Kuipers before. However he had built cattle yards at Mr Kuipers premises approximately eight years previously. The Defendant had previously worked casually driving trucks with Hardy's Haulage and trimming trees for North Power. Years previously he had a fencing contracting business where he had done a little bit of this sort of work as it came along. However he had not done a lot of work where a crane had been used.

4 This judgment deals with the penalty to be imposed upon the defendant, the maximum penalty available being $55,000, as well as the matter of costs.

5 The amount of the penalty to be imposed upon the defendant is to be determined, having regard to the nature and seriousness of this offence; the role which general and specific deterrence have to play in that penalty and the impact of the subjective features of the offence, as revealed in the evidence. The amount of the discount flowing from the defendant's plea must also be decided.

6 On the evidence, there is no doubt that the prosecution demonstrated that the offence was a serious one. By his plea, the defendant accepted his responsibility for this offence, understandably on the evidence. The risk was both readily foreseeable and avoidable.

7 For the defendant it was argued, however, that it was relevant that the construction work on which he was engaged was not conducted in the ordinary course of his business. His involvement had arisen as the result of an arrangement between a group of friends, including the owner of the property, Mr Kuipers, Mr McMullen and the owner of the crane, Mr Marshall. The defendant had a fencing business and his expertise was in chain saw work. He had never been involved in a construction such as this. It was unusual, involving the use of large telegraph poles, which required an unusual construction method, with which he was not familiar and which Mr Kuipers required. That was why the horizontal poles used in constructing the frame of the shed were not strapped when placed upon the vertical posts, as soon as they were lifted, which was likely to have decreased the likelihood of the risk in question materialising.

8 The accident occurred when Mr Marshall used his crane to move a pole, in a space which was too confined for that work. The pole could easily have been moved manually. The defendant had been unaware of Mr Marshall's intention to use the crane to lift the other pole and if he had been, he would have stopped him. He did not see what happened and had not been directing the work. It was Mr Kuipers who decided what was to be done. The result was that the crane struck a pole already lifted into place, but not secured there, dislodging it and striking Mr McMullen.

9 A determination of the nature and seriousness of the offence, flows from a consideration of the evidence of the risks in question. The defendant argued that the risk which materialised was not obvious. I cannot agree. Use of a crane in a confined space, small enough to permit the crane to hit an unsecured log resting at height on a vertical pole, under which people are working, is an obvious and readily foreseeable risk, as well as one which is readily avoidable. That the method of construction being undertaken was one not familiar to the defendant, suggests that there should have been a heightened concern to consider safety requirements, not that they should have been entirely ignored by those undertaking this work for reward.

10 The risk of injury from a heavy, unsecured log falling from a considerable height, is obvious and could have been readily prevented, if the log was secured and the crane not operated in a proximity which would allow the unsecured log to be dislodged, if struck. The evidence suggested that there was nothing which would have prevented this obvious approach being adopted.

11 Tragically, it was a death which resulted when the apparent risk materialised. That, too, was foreseeable, given the size and weight of the log and where it rested unsecured at above head height. The occurrence of death may manifest the seriousness of a risk to safety. (Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32].) This is such a case.

12 The defendant's evidence showed that after the accident, his attention to safety considerations altered. I accept that this is to be taken into account in an assessment of penalty, as is other evidence of the defendant's contrition, which I also accept was real, involving as it did the death of a close friend. Contrition was demonstrated, too, by the steps taken by the defendant to assist Mr McMullen's family.

13 Nevertheless, the evidence well demonstrated that this was a serious offence. The work was undertaken in circumstances of obvious risk, where there were no steps taken at all to ensure the safety of those who might become the subject of those risks. The result was a death, itself a readily foreseeable result from the approach adopted.

14 It was submitted that the defendant was most unlikely to re-offend and that this should be taken into account in relation to deterrence. The evidence was that the defendant remains in business on his own account, albeit in fencing work. He has pursued work of many kinds in the past, including construction work. While the work undertaken on this occasion was construction work with which he was not familiar, there is no reason why that situation might not arise again in future.

15 The Full Court has emphasised that general deterrence is a major consideration in prosecutions brought under the Act and that in most cases, specific deterrence must be taken into account, in order that a sufficient level of diligence by the offender will be encouraged for the future. (Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610). I am satisfied that both have a proper role to play in this case.

16 A number of subjective features are relevant to be here taken into account in determining penalty, including the plea. This was the defendant's first offence. There was co-operation, with the prosecuting authority, although for the prosecutor it was submitted that consideration would be given to the obvious departures between the evidence given in these proceedings by the defendant as to Mr McMullen's involvement in the construction work and the information provided to the Inspector, in the investigation. I accept that there was a significant departure in the two versions, of which account must be taken. This affected the conclusions otherwise available to be reached as to the defendant's co-operation with the prosecuting authority, as reflecting his contrition for what had occurred.

17 While the agreed statement of facts noted that Mr McMullen was a visitor to the site, the defendant's evidence suggested he had a paid role in the work of constructing the shed, as extensive as involvement in planning the design and method of construction of the shed.

18 It was not submitted that the defendant's evidence about these matters should be rejected. He was unable to explain why this information had not been forthcoming in the investigation. I accept that proper account must be taken of this circumstance in determining penalty.

19 I am satisfied that the defendant is entitled to a discount for the utilitarian value of the plea, (R v Thomson; R v Houlton (2000) 49 NSWLR 383), indication of which was given some two weeks prior to the hearing. This resulted in consultation between the parties, so that a statement of facts was agreed and a new charge, to which the plea was then entered. No doubt this led to utilitarian savings, which should be reflected in a discount of 20%. I have also concluded that there should be a further discount of 5%, reflecting the steps taken to address safety deficiencies; some co-operation with the prosecuting authority and remorse and contrition for what occurred.

20 Section 6 of the Fines Act 1996 requires that consideration be given to the evidence of the defendant's financial position, as discussed by the Full Court in Manpac Industries Ltd v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435. The purpose of a fine is, of course, to punish the offender. The burden which a penalty will impose must, however, also be considered by the Court. That does not mean that a proper consideration of the evidence in a particular case will not result in a heavy penalty.

21 In McColl v John Watson Building services Pty Ltd and Dowdon Contracting Pty ltd [2004] NSWIRComm 353, the Full Court has recently established principles applicable to the application of s 6 of the Fines Act in proceedings such as this. It was said at [22] to [25] that: 22 Section 6 of the Fines Act is in the following terms: s 6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 23 The application of the provisions of s 6 of that Act and legislation to similar effect were comprehensively reviewed by Marks J in Inspector Mansell v Eleven Lighting Pty Ltd [2002] NSWIRComm 339 at paragraphs [14] and following. That judgment also reviews the application of s 6 of the Fines Act to corporate defendants in prosecutions brought under the occupational health and safety legislation as determined by this Court both at single judge and appellate level as well as the standard of proof which applies, including the onus on a defendant to put forward such material by way of evidence as will assist a court in applying the provisions of s 6.

24 We agree with and adopt the following principles which may be distilled for present purposes from the discussion of the authorities contained within the judgment in Inspector Mansell v Eleven Lighting Pty Ltd : 1. This court is obliged to take into account the means of a defendant to pay any penalty by virtue of s 6 of the Fines Act . 2. The imposition of a fine on a corporation may have different ramifications to the imposition of a fine on an individual where imprisonment or some other penalty may be available as an alternative sanction. That alternative is not available in the case of a corporation. 3. A defendant who wishes to rely on the provisions of s 6 to temper the amount of any monetary penalty bears the onus of putting such evidence in support as is appropriate before the court and bears the onus on the basis of the balance of probabilities of satisfying the court as to the truth of such evidence and its relevance to the fixing of penalty. 4. Whilst it is for a corporate defendant to fully disclose its financial state, it is for the prosecutor to check that information in order to assist the court in determining the propriety of taking that evidence into account in imposing a monetary penalty. It is inappropriate for the court to exercise an inquisitorial role in this regard.

25 In addition, we note the following principles which have been settled for the consideration of the financial situation of the defendant: 1. In the context of determining penalties in prosecutions for a breach of occupational health and safety legislation by a corporation, it may be appropriate, in some limited circumstances, for the Court to have regard to whether the defendant's corporate structure is little more than a means of distributing earnings arising from personal exertion or where the burden imposed by a fine will fall on one person or family, compared with a corporation which is functioning as "a company with assets of a substantial kind": see Haynes v CI&D Manufacturing (1995) 60 IR 455 at 457. However, it is now also clear that the fact that a corporation may represent the alter ego of a person or family and that any penalty imposed on the corporation will consequently have a financial impact on that person or family does not, of itself, warrant a reduction in penalty: WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Ltd trading as Old But New [2004] NSWIRComm 247 ; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 . 2. The financial position and the means of a defendant should be taken into account when determining penalty. It is well established that, notwithstanding such considerations, the penalty must ultimately reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309; Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435.

22 The Full Court also dealt with the need for a defendant to put adequate evidence before the Court, as to relevant financial material, if s 6 of the Fines Act is to be applied, observing at [27]: In our opinion, having regard to the fundamental principles as discussed earlier in these reasons, it is necessary for information of that kind to be made available by a defendant before a court can properly exercise the discretion required to be exercised by s 6 of the Fines Act . As was pointed out in Mansell v Eleven Lighting , the defendant is uniquely qualified to provide that information and is required to do so if it wants the benefits of s 6. A failure to do so will result in circumstances where the appropriate application of s 6 of the Fines Act cannot be undertaken and must fail. In our opinion, such was the case here.

23 The evidence showed the defendant's financial position following the breakdown of his former defacto relationship and his resulting circumstances and employment; his property acquisition and sales; his establishment of a business in partnership and its dissolution. The defendant now conducts a fencing business, originally in partnership, but now on his own account. While the evidence showed relatively modest income in recent years, under $22,000 in the last four years and under $7,000 in the last year, as the result of delay in payment for a particular fencing job, I am satisfied that there is a capacity to meet the penalty I propose to impose, reflective of the circumstances of this offence.

24 The defendant supports his family of three children. His bank account has a balance of a little over $4,000. He owns a property which is the subject of a mortgage of some $151,000, utilised both for the building of a house and in his business. The value of the property was not in evidence, although the defendant believed it exceeded the mortgage. The defendant owns a number of vehicles and now engages three employees and contractors in the fencing business. He has also acquired various business equipment for his fencing business at a cost of some $60,000, for which he still owed some $20,000.

25 The defendant was charged under the same section of the Act as Mr Marshall, the owner and operator of the crane (see WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v William Marshall trading as King Camphor [2004] NSWIRComm 392). The principle of parity arises for consideration in fixing sentence, in accordance with the approach of the High Court in Postiglione v R (1997) 189 CLR 295 at 301-2 per Dawson and Gaudron JJ and at 341 per Kirby J. Here the evidence demonstrated that a serious offence had been committed, requiring a heavy penalty, the requirements of safety having been entirely ignored.

26 The culpability of the two defendants was shown to be similar, but not identical, with that of this defendant being somewhat less than that of Mr Marshall. Differences in their respective financial means also arose for consideration in determining penalty. In each case that resulted in a reduction in the fine otherwise to be imposed, more in the case of Mr Marshall than that of the defendant. Each entered a plea of guilty, although in somewhat different circumstances. The discounts in each case are also different.

27 I have concluded, applying the parity principle and having regard to all of the relevant factors, that the penalty for the two defendants should be different, with the penalty for Mr Marshall being somewhat lower than that of the defendant, having in mind the significant differences in their respective financial means. The penalty imposed remains however, a substantial one in the circumstances of this defendant, reflective of the seriousness of the offence. But for those circumstances, it would have been higher.

28 In light of all of these factors, I have concluded that a penalty of $18,000 must be imposed in the case of this offence, reduced by a total of 25%. This results in a final penalty of $13,500.

Orders 29 For all of the reasons given, I find the defendant guilty of the charge and enter a conviction accordingly. The defendant is ordered to pay a penalty of $13,500 with a moiety to the prosecutor. The defendant is also ordered to pay the prosecutor's costs as agreed, or as assessed in accordance with the Court's Rules.

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