WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd - [2001] NSWIRComm 263 - NSWIRComm 2000 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd

[2001] NSWIRComm 263

Industrial Relations Commission (NSW)|2000-02-02|Before: Hungerford J, Mr J, Mr P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2000-02-02

Before

Hungerford J, Mr J, Mr P

Catchwords

06/13/2001 DATE OF JUDGMENT: 10/26/2001

Source

Original judgment source is linked above.

Catchwords

06/13/2001 DATE OF JUDGMENT: 10/26/2001

Judgment (165 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263 PROSECUTOR WorkCover Authority of New South Wales (Inspector Martin Carmody) PARTIES : DEFENDANT Consolidated Constructions Pty Limited FILE NUMBER: IRC 2637 of 1999 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Plea of guilty - Assessment of appropriate penalty - Principles to follow in the sentencing process - Nature and quality of offence - Subjective factors - Responsibility of other persons for what occurred - Parity in sentencing - Deterrence - Contrition - One prior conviction of similar nature - Conviction entered - Fine imposed, with moiety to prosecutor - Defendant to pay prosecutor's costs. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 16(1) Bultitude v Consolidated Constructions Pty Ltd (unreported, CIM, 98/1833, 2 February 2000) Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 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 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED : Lowe v R (1984) 154 CLR 606 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 Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700, (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 HEARING DATES: 05/10/2001; 06/13/2001 DATE OF JUDGMENT: 10/26/2001

[29]

8 The statement indicated that on 21 October 1997 the defendant entered into a contract with Develco Project to assume the task as the principal contractor on the Mascot site for the construction of the office/factory complex. The agreed facts detailed the location, nature and size of the brick wall concerned and then traced events on the site from 1 August 1996 when Develco Project agreed to purchase the site, subject to completion of certain demolition work and redevelopment, until it actually made the purchase on 16 June 1997. Those events included the engagement in October 1996 by Develco Project of van der Meer Bonser as engineering consultants to undertake structural design and documentation of building and earthworks on the site; it was noted that van der Meer Bonser did not undertake a site survey or visual inspection of the site prior to commencing the design work as it relied upon a geotechnical report and survey earlier carried out by others. Between November 1996 and January 1997, a contractor to the site's former owner demolished the buildings on the site and shortly after June 1997 Develco Project commissioned that contractor, Davis Earthmoving and Quarrying Pty Limited, for a "forward earthworks contract" which, relevantly for present purposes, included excavating as required to a predetermined level along the western boundary to allow for the construction of footings for new retaining walls and excavating to a few hundred millimetres below the footing of a driveway along the western boundary on the property of The Blue Mountains Water Company adjacent to the subject free-standing brick wall. It appeared from the statement that between 16 June 1997 and 15 August 1997 the defendant was concerned to ensure the continuity of the project prior to it formally assuming the role of principal contractor and, therefore, contracted with Mr Peter Baker of Bluecon Pty Limited to supervise bulk earthworks as Develco Project's on-site representative. Specifically as to the brick wall concerned, the statement recorded : 21. Baker gave no consideration as to the stability of the said wall following the excavation work. Bonser was not aware of the said wall and accordingly did not make any allowance for it when designing the footings for the retaining wall in that area. Develco did not appraise Bonser of: a. the existence of the said wall prior to it designing the structures and civil works for the said site; b. the excavation work carried out in close proximity to the said wall.

[70]

18 Mr Leavy then considered the contributing factors to the collapse of the wall and specifically referred to "the failure to identify the risk associated with the wall on the adjoining property at the south west corner of the site". As part of those contributing factors, Mr Leavy detailed the involvement of Develco Project, van der Meer Bonser and Byrne Civil Engineering Constructions. As a general proposition, he expressed the view that each of those persons were responsible to some extent for what occurred. In particular as to the present defendant, Mr Leavy expressed the following view: 7.2.4 Consolidated Constructions Pty Ltd Consolidated Constructions Pty Ltd contributed to the accident in the following ways: (a) General Notwithstanding others' responsibilities, the Principal Contractor should carry out an assessment of properties adjoining the site and the effect that excavations or other work to be carried out may have on the stability of their foundations. In this case, Consolidated Constructions Pty Ltd did not carry out such an assessment and failed to recognise the dangerous working environment adjacent to the freestanding wall on the adjoining property in the south west corner of the site. (b) Provision of information As part of their contract, Consolidated Constructions Pty Ltd was to provide the Design Engineer with all the relevant details to enable the Design Engineer design structures and civil works for the development. However, Consolidated Constructions Pty Ltd did not supply the Design Engineer with any information pertaining to structures adjacent to the site and therefore no allowance was made of them in the structural and civil design. (c) Project Management Overall project supervision appeared to be poor and not in compliance with the requirements specified in Consolidated Constructions Pty Ltd's own Project Management Manual. (d) Site Engineer The Site Engineer was inexperienced in excavations and groundworks in general and therefore was not competent to fulfil the criteria for the position outlined in the Consolidated Constructions Pty Ltd's Project Management Manual. (e) Site supervision Consolidated Constructions Pty Ltd had supervision on site during the second phase of the project and therefore should have been aware of the excavations which had taken place during that phase. In addition, the overall level of supervision on the site during the third phase appeared to be poor: there was much evidence of Subcontractors carrying out work unsupervised for periods of time or carrying out work without Consolidated Constructions Pty Ltd's authorisation. A cursory site inspection after the accident revealed a number of other hazards on site, including no stabilisation work to properties adjoining the site where excavations were being carried out ..., a hazardous electrical connection to a site hut, excavations not adequately protected against people falling into them and reinforcing bars without safety caps in low excavations.

[74]

20 At the request of counsel for the defendant, the prosecutor's counsel called as a witness Mark Thomas Davies who was a consultant structural engineer employed by van der Meer Bonser and the person involved in the co-ordination of the design for the site, including the documentation of all stages from the earthworks through to the main building work; he first became involved with the site in late-1996 or early-1997. The cross-examination of Mr Davies was by reference to the duties of the designer of a project as laid down in the Australian Standard - Guidelines on earthworks for commercial and residential developments (AS 3798-1996). Specifically as to adjoining properties, that Standard provided in Section 2 - Investigation, Planning and Design that "The investigation, planning and design for projects involving earthworks require the designer to give consideration to those factors which may affect the works," including the following : (c) Adjoining property Examination to assess whether there is a potential for damage due to vibration, excavation, filling, noise, run-off, dust or other effects of the earthworks, and liaison with the adjoining owners. In Section 3 - Documentation, the Standard "includes details of the documentation for the design and construction of an earthworks project" and par 3.2 - Investigation and Planning thereof, states : Investigations for the planning of earthworks for use by the designer, the constructor and other interested parties should include ... (b) Site investigation of the project and any associated sites ... (c) where applicable, an outline of other plans which have been considered in the investigation. This should include the points discussed in Section 2 ... In par 3.3 - Design and Specification, the Standard states : The functional requirements of the design should be documented in the specification and drawings for the earthworks project. This documentation should be sufficiently complete to allow the constructor to unambiguously carry out the works, and for the superintendent (and the geotechnical testing authority, as necessary) to be able to interpret the design and administer the contract.

[107]

25 Mr Peppercorn's affidavit showed he commenced employment with the defendant in Western Australia in 1989 as a site manager, in 1990 he was promoted to the position of Project Manager and as the Construction Manager in 1994; in October 1998 he was appointed a director. His current primary responsibilities covered construction management and industrial relations for the defendant in its Western Australian operations. Significantly, however, he had national responsibility for occupational health and safety issues concerning the defendant, including an active role in such issues in the construction industry generally. Mr Peppercorn's basic qualifications were as a builder, but with extensive supervisory and management experience in the construction industry over a period of 31 years, together with industry-wide activities in employment, skills formation and training programmes. Pursuant to his responsibility for safety, on the occurrence of the present incident on 15 December 1997 Mr Peppercorn travelled from Perth to Sydney that evening and visited the Mascot site early the next day. In his affidavit, he dealt with the background to the defendant's involvement on the site, by reference to the transcript of the proceedings in the matter before me concerning Byrne Civil Engineering Constructions and my judgment thereon (103 IR 80), and the events that occurred prior to the December 1997 fatal incident. Then, again by reference to the transcript and the judgment, Mr Peppercorn dealt with Mr Leavy's evidence in the Byrne Civil Engineering Constructions matter and expressed the defendant's view of the "contributing factors to the accident" in terms of the respective roles played by Develco Project, Davis Earthmoving and Quarrying, Northrop Holmes Engineers, van der Meer Bonser, Byrne Civil Engineering Constructions and itself. The effects on the brick wall's stability of the saw cuts, wind and collisions/interference were also examined. Nevertheless, and appropriately if I may say so, Mr Peppercorn acknowledged in his affidavit the following passage from my judgment in Byrne Civil Engineering Constructions (No 1) (103 IR 80 at p 88 in par [19]) : [19] Although Mr Leavy identified apparent contributing causes by persons other than the defendant, it should immediately be stated, for reasons which will later follow, that that does not necessarily exculpate any liability of the defendant for what occurred in terms of a failure to ensure the health or safety of persons arising from the conduct of its undertaking while they were at its place of work. In other words, and even though persons other than the defendant may have been at fault, so too may the defendant in failing to comply with s 16(1) of the Occupational Health and Safety Act . In any event, and as Mr Leavy observed, the defendant "did not identify the dangerous working environment adjacent to the freestanding wall and allowed its employees to work there". (The reference in the above passage to "the defendant" there may be applied equally to the defendant here.)

[116]

29 The changes and improvements to the defendant's safety policies and practices foreshadowed by Mr Peppercorn were detailed in the evidence given by Wayne Game who was, and had been since November 2000, the defendant's Occupational, Health, Safety and Environmental Manager. Mr Game had responsibility for managing all aspects of occupational health and safety for the defendant in this State. He had had 32 years' experience in the construction industry, including in trade and supervisory positions on domestic and commercial construction sites, and, in addition to trade qualifications and certificates to operate various pieces of construction equipment, holds an Associate Diploma in Occupational Health and Safety from the University of Newcastle. From 1987 to 1995, Mr Game held positions with the Occupational Health and Safety Division of the Department of Industrial Relations (later the WorkCover Authority) as a construction inspector, assistant district manager, district manager and principal inspector; in 1995 he was appointed as the WorkCover Construction Manager (Metro West) and in 1997 was seconded to the WorkCover Systems Safety Unit as a regional inspector. In 1999, he joined Abigroup Contractors Pty Limited as its Occupational Health and Safety Co-ordinator until November 2000 when he commenced with the defendant in his present position. His immediate task on commencement was to conduct a full audit of the defendant's safety procedures and systems, with particular reference to the changes made to them in response to a report prepared by Margaret Harris on 20 December 1998. Ms Harris, Occupational Health and Safety Senior Auditor of Sirrah Consulting and Training Services Pty Limited, extensively reviewed the defendant's safety management system following the subject incident in December 1997 over a four-day period in November 1998 for the purpose of determining the content and status of the occupational health and safety management system and whether it adequately met the requirements of relevant legislation. As to the recommendations contained in Ms Harris' report, to which I will shortly turn, Mr Game deposed his audit revealed that many of the recommendations had been implemented.

[144]

43 What I think flows from those settled principles as to the sentencing process is that the penalty is to be determined by reference to the offence. It is necessary to make this point because I detected a continuing thread running through the submissions of Mr Phillips that in viewing the total circumstances in assessing criminality one had to consider in a relative or proportionate sense the conduct of the other parties involved. As Mr Phillips said - "The evidence clearly reveals the involvement of other parties all of whom either caused or contributed to the accident on 15 December 1997". I am concerned in that that approach focussed more on the occurrence of the collapse of the brick wall causing fatal injuries rather than with the offence as charged, and as set out in the particulars thereof, which may be distractive in the sentencing process as to the defendant's failures. There can be no doubt on the admitted evidence that the brick wall was in an unstable state at all relevant times of the defendant's occupancy of the site as the principal contractor. What it was charged with was a failure to ensure persons not in its employment were not exposed to risks to their health and safety; and that, essentially, concerned a failure by it to properly assess the risk posed by the free-standing, but unstable, brick wall. The wall collapsed, it may be said for whatever reason, but that was not the occurrence with which the defendant was charged. This aspect of the immediate reasons for the occurrence of an accident, as distinct from the steps enabling it to occur and with which a defendant stands charged, was considered by a Full Court of the former Industrial Court in Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 158-159 in the following way : ... The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. ... In making those comments, the Full Court was dealing with the liability of a defendant for a breach of the Occupational Health and Safety Act but, in my view, the same approach needs to be had in mind in considering penalty because, after all, the penalty is fixed for the offence found to have been proven. It is, therefore, to the offence itself to which attention is to be directed and not, but as Mr Phillips suggested, the occurrence of the accident and the contribution of other persons for what occurred.

[152]

51 The essential nature of the present offence was, as I view the agreed circumstances, the failure of the defendant to recognise the potential risk to the safety of workers on the site of the free-standing brick wall in the south west corner thereof; as excavation work proceeded on the site, the defendant continued its failure to recognise the dangers posed by the brick wall to the point where it permitted the sub-contractor, Byrne Civil Engineering Constructions, to perform detailed excavation work from 29 October 1997 adjacent to the wall until the wall became so unstable that it collapsed on 15 December 1997. It is plain, as the agreed facts showed, that the defendant did not become the principal contractor until 21 October 1997 when it assumed that role from Develco Project on the purchase of the site by Cutler Hammer, but it had a continuing supervisory involvement with the site from as early as mid-June 1997 when Davis Earthmoving and Quarrying commenced the bulk earthworks - this was apparently the case so that when, as it knew would occur, the defendant was to become the principal contractor it would have a familiarity with the site to facilitate the construction work. Regrettably, it appears, the earthworks along the western boundary resulted in the depth of the excavations going lower than the depth of the slab along the driveway of the Blue Mountains Water Company and the footings of the said brick wall; from that point, the wall became unstable. Nevertheless, from as early as mid-August 1997 the stability of the brick wall was compromised but neither the defendant nor any of the other persons concerned in the development (Develco Project, van der Meer Bonser or Davis Earthmoving and Quarrying) acknowledged the state of the brick wall; and, it must be added, the dilapidation survey earlier prepared by Northrop Holmes Engineers made no mention of the wall or of its potential for affecting safety on the site. It is this aspect of the defendant's failure to recognise the presence of the brick wall and of its continuing status in terms of stability, which, in my view, goes to the core of the present offence.

WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd

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