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

PROSECUTOR Mr J J Millar of counsel Solicitor: Ms M Lagana WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr J P Phillips of counsel Solicitor: Mr P Rutter Gadens Lawyers

JUDGMENT: - 48 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Friday, 26 October 2001 Matter No IRC 2637 of 1999

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MARTIN CARMODY) v CONSOLIDATED CONSTRUCTIONS PTY LIMITED

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2001] NSWIRComm 263

1 This is a prosecution by Martin Carmody, as an inspector of the WorkCover Authority of New South Wales, of Consolidated Constructions Pty Limited for a breach of s 16(1) of the Occupational Health and Safety Act 1983. The sub-section imposes the duty on an employer to "ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work". The prosecution arose in relation to an incident which occurred on a construction site at Kent Road, Mascot at about 3.00 pm on 15 December 1997 when a free-standing brick wall collapsed and caused fatal crush injuries to two persons, Darragh Whelan and Matthew Twomey, who were performing excavation and filling work on the site adjacent to the brick wall. Mr Whelan and Mr Twomey were each employed by a labour hire company which had supplied their labour to Byrne Civil Engineering Constructions Pty Limited for it to perform excavation work on the Mascot site under a sub-contract to the defendant as the principal contractor.

2 The charge against the defendant was specified in the summons in the following way : The defendant, being an employer, between 16 June 1997 and 15 December 1997 inclusive at 10-12 Kent Road, Mascot in the State of New South Wales DID FAIL to ensure that persons not in its employment and in particular, Darragh Whelan and Matthew Twomey, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to Section 16(1) of the Occupational Health and Safety Act 1983 in that it failed to make arrangements for ensuring safety and absence of risks to health in connection with excavation work carried out adjacent to a freestanding wall at the south west corner of the said site.

3 The particulars of the charge were set out in the summons in the following terms : The defendant failed to : a) Assess the stability of the said wall and the effect excavation work adjacent to the said wall would have on its foundations.

b) Develop a site safety plan in accordance with its corporate safety system that encompassed the said wall.

c) Commission a dilapidation survey that encompassed the said wall.

d) Appraise van der Meer Bonser Pty Ltd of the existence of the said wall during earthworks and building works at the said site.

e) Ensure that excavation of the footings of the new retaining wall did not extend below the base of the existing footing of the said wall.

f) Ensure that its programmed weekly inspections of the said site included assessing the stability of the said wall's foundations and the effect excavation work adjacent to the said wall would have on its foundations.

g) Prop, underpin or otherwise implement adequate control measures to prevent or minimise the risk of collapse of the said wall.

h) Require Byrne Civil Engineering Constructions Pty Ltd to submit a Safety Plan prior to commencing excavation work on the said site.

i) Require Byrne Civil Engineering Constructions Pty Ltd to submit a safe work method statement for excavation work carried out adjacent to the said wall.

j) Provide such training to and supervision of, Benjamen New and Rodney Taylor, as may be necessary to ensure that they adequately carried out responsibilities assigned to them in its Health and Safety Policy.

As a result of the said failures, Darragh Whelan and Matthew Twomey sustained fatal injuries.

4 The summons was filed on 28 May 1999 and, after some preliminary proceedings, the defendant entered a plea of not guilty on 16 December 1999. Similar charges under s 16(1) of the Occupational Health and Safety Act in relation to the same incident occurring on 15 December 1997 were made against Develco Project Pty Limited as the developer of the Mascot site and against Byrne Civil Engineering Constructions as the sub-contractor engaged to perform the excavation work on the site. Arrangements were made for the three matters to be heard together, by consent, as defended proceedings over a period of 21 days commencing on 9 October 2000. However, on 3 October 2000, after so advising the prosecutor by letter dated 29 September 2000, the present defendant changed its plea to one of guilty; the hearing against it was adjourned to permit the defended proceedings against the remaining two defendants to begin on 9 October 2000. As it happened, on that date the prosecutor offered no evidence against Develco Project and the charge against it was dismissed; further proceedings were held as to costs but those issues have no present relevance. As to Byrne Civil Engineering Constructions, it maintained its plea of not guilty and, after a four-day hearing, on 9 March 2001 I found the offence proven: see WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) (2001) 103 IR 80; a decision on penalty was given by me today in which it was fined an amount of $125,000: see WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264. In the matter against the present defendant, I heard its plea in mitigation of penalty on 10 May and 13 June 2001. This decision provides my reasons on the issue of penalty against the defendant.

5 The defendant had a prior conviction under s 16(1) of the Occupational Health and Safety Act being an offence committed on 12 September 1996 arising out of the partial collapse of a masonry block wall on a construction site at Pittwater Road, Brookvale where it was engaged in the construction of an industrial warehouse. The defendant pleaded guilty to that charge and on 2 February 2000 the Chief Industrial Magistrate entered a conviction and imposed a fine of $7,000; the maximum penalty was a fine of $50,000: see Bultitude v Consolidated Constructions Pty Ltd (unreported, CIM, 98/1833, 2 February 2000). It seemed that a section of the wall fell against perimeter fencing and onto an adjoining car yard but, fortunately, there were no injuries as a result of the occurrence. Relevantly, the Chief Industrial Magistrate said in his decision (at pp 4-5) : It is essential that the employers approach to ensure safety in the workplace should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace: WorkCover Authority of NSW v ATCO Controls Pty Limited (Unreported, Hill J, 22 April 1998). Unfortunately, wall collapses are not uncommon on construction sites and such collapses create potential risk of serious injury to those nearby.

As a result of this incident the defendant reinforced its own stringent guidelines. Delegation of work is now done with greater caution and scrutiny. Work method statements are insisted upon.

The defendant has been operating in the construction industry for 38 years. It has no prior convictions. This is an excellent record for a company of its size operating in a hazardous industry for many years.

Consolidated has not sought to defend the matter and has entered in a plea, albeit at a late stage. The delay in entering a plea was occasioned by the total turnover of Consolidated's New South Wales staff and the inability of Consolidated to obtain meaningful evidence from the other defendants in the proceedings. As a consequence, Consolidated was forced to await the hearing of the pleas by the other defendants and then put matters raised in those hearings to persons no longer within its control.

There is no contention by the prosecution that Consolidated failed to co-operate with the WorkCover Authority during the investigation. Consolidated does not resile from the seriousness of the accident. Whilst it is indeed fortunate that the accident did not result in an injury, Consolidated accepts that the absence of injury is not a mitigating factor and regrets that it failed to exercise appropriate diligence in following its own prescribed guidelines. It accepts that, had those guidelines been followed, the failings of its sub-contractors may have been detected and the accident may not have occurred.

6 In light of the prior conviction, it was agreed between the parties, correctly I think, that the maximum penalty for the present offence at the time it was committed was $825,000.

7 A statement of agreed facts was admitted into evidence. From that statement it appeared that Develco Project was the developer of an office/factory complex at the subject Mascot site and it made a contract with the defendant as the principal builder to complete the construction. The defendant, in turn, contracted with Byrne Civil Engineering Constructions to dig strip footings, excavate pads and trim existing footings for retaining walls at the said site. Develco Project engaged engineering consultants, van der Meer Bonser Pty Limited, to undertake structural design and documentation for buildings and earthworks at the said site. In carrying out its contracted work for the defendant, Byrne Civil Engineering Constructions utilised the labour of Mr Whelan (a 25-year old graduate civil engineer with approximately 12 months' field experience) and Mr Twomey (a 20-year old labourer with approximately 12 months' experience in civil construction) who were employed by labour hire companies, being respectively J D Services (Australia) Pty Limited and Subcrete Constructions Pty Limited; that former company employed also Mr Mark Byrne (a licensed excavator operator) to work on the said site under the direction and control of Byrne Civil Engineering Constructions. The statement further recorded that about 3.00 pm on 15 December 1997 the foundations supporting a 4.1 metre high free-standing brick wall located on the boundary at the south west corner of the site gave way and the wall collapsed onto Mr Whelan and Mr Twomey.

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.

22. The defendant relied exclusively on a dilapidation survey commissioned by Develco from Northrop Holmes Engineers ("Northrop"). The purpose of the dilapidation survey was to document any pre-existing damage to adjoining properties. Develco nominated the addresses of the adjoining buildings to be surveyed. No inspection or photographs were taken of the said wall. On 15 August 1997, the bulk earthworks on the site were suspended when negotiations commenced for Cutler Hammer Pty Limited to purchase the site from Develco Project for a purpose-built development; the sale was effected on 21 October 1997 and the defendant thereupon entered into the subject contract with Develco Project for it as the principal builder to complete it. To facilitate that process, Mr Mark Davies, who was van der Meer Bonser's project engineer on the site, was transferred to work with the defendant to establish a definite structural design for the site.

9 On the defendant's appointment as principal contractor, what then occurred was stated in the agreed facts in the following way : 25. On 29 October 1997, Byrne Civil Engineering Construction Pty commenced earthworks under the supervision of the defendant's site engineer, Mr Rod Taylor. For the first 2-3 weeks, Taylor was seconded to Develco on a weekly charge basis. He was responsible for checking the reduced levels of the bulk earthworks to the buildings and to ensure that no new fill was brought onto the said site. At the expiration of this period he returned to work for the defendant. Taylor, a 24 year old graduate engineer, had no experience in excavation work prior to the said project.

26. On 24 November 1997, the defendant commenced building works on the said site. Bonser attended the said site and examined existing footings then encroached on the north-western boundary.

27. The defendant did not make Bonser aware of the existence of the said wall. Accordingly, no allowances were made for it when designing the footings for the retaining walls in that area.

28. The defendant instructed Byrne Civil Engineering to carry out detailed footing excavations along the northern and western boundaries. This excavation work entailed the removal of sub-soil foundations to approximately 600 to 1000 mm below the top of the existing footing.

10 The events of 15 December 1997 prior to and including the fatal incident were set out in the statement in this way : 29. On the said date, Mr Benjamin New, site manager and general foreman for the defendant, instructed Seamus Byrne, the director of the Byrne Civil Engineering, to commence detailed excavations in the south west corner of the said site. Those excavations included work on a footing for a reinforced masonry retaining wall in the vicinity of the said wall.

30. At approximately 1.00 pm, Mathew Twomey, Darragh Whelan and Mark Byrne proceeded to excavate along the southwestern boundary, including the area adjacent to the said wall. Mark Byrne, on instruction from Whelan, excavated approximately 300 mm of soil using Byrne Civil Engineering's 21 tonne Hyundai Excavator. In the process of undertaking this work, Mark Byrne accidentally hit and fractured an old sewerage main in the extreme south west corner of the site causing some seepage from the mains into the excavation. Twomey requested Mark Byrne to remove soil away from the mains to create a drainage point.

31. After complying with Twomey's request, Mark Byrne continued excavating in a northerly direction removing soil from the perimeter footing. As he approached the said wall, he assessed that the area adjacent to it was already close to the level prescribed by Whelan, so he only excavated approximately 150 millimetres. A further level reading from Twomey and Whelan confirmed that he had excavated to the predetermined depth. Mark Byrne continued excavating approximately 3 metres past the said wall and stopped to check the reading. As Twomey was occupied exposing the sewer, he alighted from the excavator and assisted Whelan with the reading. After getting the "thumbs up" from Whelan he returned to the excavator and continued to excavate to the north of the said wall. Approximately 20 minutes later, Mark Byrne turned around to observe the said wall collapsed with both Whelan and Twomey trapped beneath its bricks. Despite the efforts of Byrne and others to assist them, both Whelan and Twomey died as a result of injuries sustained in the accident.

32. Prior to the collapse Mark Byrne had last observed Whelan standing at the base of the said wall and Twomey digging at the toe of its footing with a shovel.

11 It was agreed between the parties, as the statement recorded, that prior to the incident on 15 December 1997 the defendant did not : a) develop a site safety plan in accordance with its corporate safety system that encompassed the said wall;

b) ensure that its programmed weekly inspections of the said site included assessing the stability of the said wall's foundations and the effect excavation work adjacent to the said wall would have on its foundations;

c) prop, underpin or otherwise implement any control measures to prevent or minimise the risk of collapse of the said wall;

d) require Byrne Civil Engineering to submit a Safety Plan prior to commencing excavation work on the said site;

e) require Byrne Civil Engineering to submit a safe work method statement for excavation work carried out adjacent to the said wall;

f) provide training to and supervision of, Benjamin New and Rodney Taylor that ensured that they carried out responsibilities assigned to them in its Health and Safety Policy. The statement of agreed facts acknowledged that the defendant's site manager and general foreman, Mr New, had no concerns in relation to the wall which collapsed because : a) it was not on the said site;

c) when visually inspected he did not assess it as hazardous. Further, it was agreed that neither Mr Baker (Develco Project's on-site representative working with the defendant) nor Mr Taylor (the defendant's site engineer): a) evaluated the stability of the said wall prior to or during the excavation adjacent to it;

c) examined the concrete slab on the Blue Mountain property adjacent to the said wall;

d) were aware of the saw cuts in the concrete slab of the said driveway.

12 After the subject incident on 15 December 1997, inspectors from the WorkCover Authority conducted an investigation which revealed certain defects creating a hazard concerning the brick wall and the statement recorded those matters in the following way : 42. WorkCover's Senior Engineer Leavy concluded that : a) The excavation of soil from one side of the foundation greatly reduced the stability of the foundation.

b) The additional mechanical and hand excavations carried out on the day of the accident were sufficient to weaken the foundation to the extent that the soil could no longer sustain the weight of the said wall and its footing.

c) A gust of wind may have precipitated the collapse.

e) The principal effect of the saw cut was to change the type of foundation from an edge beam section of slab-on-ground to a strip footing with an adjacent ground slab.

f) The modification of the foundation contributed to the said wall's collapse in that, the original foundation, where the edge beam was connected to the ground slab, may have supported the beam and the said wall once the soil beneath the edge beam failed.

g) The strip footing was a valid method of supporting the said wall, and it would have remained stable if the excavations had not taken place adjacent to the footing.

h) The fractured sewer did not cause any change in the make up of the soil supporting the strip footing. The fracture was located at the lowest point of the extreme south west corner of the said site and any resultant water from the fracture would have settled there.

43. Following WorkCover's initial inspections the Prosecutor issued to the defendant Prohibition Notice No 100683 requiring geotechnical and engineering reports to be obtained to ascertain whether the soil foundations at the excavations were safe and suitable to support adjacent buildings and other structures.

13 The remedial action taken by the defendant after the incident was recorded in the statement in the following way : 44. On or about 17 December 1997, the defendant on advice from Bonser, mass concrete filled all retaining wall footings 150 millimetres above the underside of existing boundary footings. The introduction of this concrete eliminated any risk of wall or footing instability.

45. Following the accident, the defendant indicated that it would implement the following remedial action: a) prior to the commencement of work on a new site it would engage a qualified engineer to prepare a site specific safety report, that incorporated adjoining properties, for the purpose of identifying any hazards; and

b) if a hazard was identified it would commission a second report to determine what course of action should be employed to remove the hazard.

14 Specifically, the defendant admitted the respective failures alleged against it as set out in the particulars of the charge in the summons so that the breach of s 16(1) alleged against it was made out. Having in mind the circumstances of this case as contained in the statement of agreed facts, together with the admissions made by the defendant, I am satisfied that the plea of guilty was properly made and it is accepted. It remains, then, to determine an appropriate penalty.

15 Apart from the statement of agreed facts, the prosecutor called evidence from two witnesses. The first was Brett Craig Jurmann, an inspector with the WorkCover Authority, who visited the Mascot site on 7 November 1997 in relation to a demolition problem occurring about six months earlier. Although that problem did not concern the present defendant, it seemed that Mr Jurmann took a number of photographs of the site during his visit, including one which showed the subject brick wall from a distance of about 100 m across the road. The value of the photograph for present purposes was that it clearly depicted the location and free-standing nature of the wall but without any attention to the detailed excavation work then being done on the site. Mr Jurmann agreed during cross-examination that if he had seen, which he did not, excavations along the length of the brick wall which posed a risk to its stability he would have done something about it. He made the point that even though the wall appeared in the photograph it was not his intention to specifically focus on the wall but rather to photograph various aspects of the site from outside its boundaries - the wall happened to appear in one of the photographs.

16 The second witness for the prosecutor was Daniel Joseph Leavy, currently the State Co-ordinator for Plant with the WorkCover Authority, who investigated the circumstances of the collapse of the brick wall. Mr Leavy was an experienced professional engineer with qualifications in structural engineering. In his report, he traced the on-site activities in the demolition phase from September 1996 to June 1997 followed by the bulk earthworks which were completed in late-November 1997 when the defendant commenced on the site as the principal contractor. After considering the available facts, Mr Leavy commented in his report on the mechanism of failure of the brick wall in the following way : 6.1 General The arrangement of the wall and its strip footing foundation at the commencement of the development was sufficient to support the weight of the footing and the wall. Removing the soil from one side of the foundation greatly reduced the stability of the foundation. Additional excavation in the area further weakened the system to such an extent that the soil beneath the strip footing could no longer support the weight of the wall and footing. This resulted in the collapse of the footing, which in turn caused the wall to fall over.

There are a number of possible explanations why the foundation finally collapsed:

(a) Bearing pressure When a structure bears on a soil, stress is induced in the soil that radiates from the point of application of the load. The stress is dissipated through the soil, which absorbs it. By excavating the soil from in front of the supporting strip footing, there was nothing to absorb the forces induced in the soil.

(b) Earth pressure While there was soil on both sides of the strip footing, the foundation was in equilibrium. By excavating one side of the foundation, an imbalance in the earth pressure on either side of the footing was caused and there was nothing on the excavated side of the footing to resist the active earth pressure from the non-excavated side.

(c) Overturning To ensure an even distribution of the bearing pressure beneath a foundation, it should be constructed in such a way that the resultant force (ie the sum of the vertical and horizontal loads) acts within the middle third of the width of the base. Excavating beneath the strip footing caused an increase in the horizontal load from the undisturbed side of the footing which in turn may have caused the resultant force to shift away from this middle third area and therefore reduced its stability. Further instability would have been caused by the eccentric position of the wall on the footing.

All of the above are possible failure mechanisms, although the actual failure mechanism was probably a combination of all three. It is likely that the failure sequence was initiated by -

(i) the additional excavations carried out on the day of the accident, including the hand excavations, were sufficient to weaken the foundation to the extent that the soil could no long sustain the stresses in it; or

(ii) a gust of wind increased the horizontal force at the base of the wall being transmitted into the foundation and shifted the point of application of the vertical load from the wall and thereby increased the stresses in the weakened soil; or

17 In the result, Mr Leavy concluded : The excavations on the site in the vicinity of the wall weakened its foundations and left it unstable. This process began with the excavations that were carried out in the second phase of the development whereby the soil adjacent to the wall was reduced to a level below the underside of the foundation. Other factors subsequent to the initial excavation - including the vibrations that were generated in compacting the fill on site to the correct level and which were plainly felt by the people in the adjacent property, the movement of vehicles along the driveway to the Blue Mountain Water Company, heavy traffic along Ricketty Street, and wind and rain - further adversely affected the foundations to the extent that the additional mechanical and hand excavations being carried out on the day of the accident were sufficient to weaken the support from the soil and cause it to fail. The mechanism of failure may have been exasperated ( sic -exacerbated) by a gust of wind that initiated the collapse.

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.

19 Although Mr Leavy was unable to determine the age of the brick wall and its original purpose, his investigation disclosed, as he said, that "the foundation was originally constructed as an integral edge beam to the driveway slab" and "the beam was reinforced with nominal steel mesh". However, in 1995, the Blue Mountains Water Company, on whose property the wall stood, installed a water main beneath the driveway slab adjacent to the wall and that work involved inserting two parallel saw cuts along the length of the slab and "one of which was made at the juncture of the edge beam supporting the freestanding wall". As to the effect of that saw cut on the stability of the brick wall, Mr Leavy expressed the view that "the principal effect of the saw cut was to change the type of foundation from an edge beam section of a slab-on-ground to a strip footing with an adjacent ground slab"; he then added in his report : The modification to the foundation contributed to the collapse of the wall in that the original foundation, where the edge beam was connected to the ground slab, may have supported the beam and the wall once the soil beneath the edge beam failed. However, a strip footing is a valid method of supporting a wall such as the one that collapsed, and in this case, the foundation and wall would have remained stable if no excavations had taken place adjacent to the footing.

It is worth noting that the contractor who installed the water main in the driveway propped the freestanding wall when it was necessary to excavate along its length. ...

It must be stressed that a survey should have been carried out prior to detail design of structures and civil works to identify any potential factors that may impinge on the design. Such a survey should have revealed the saw cut, which was plainly visible from both the site at 10-12 Kent Road and from the footpath adjacent to the driveway to the Blue Mountains Water Company.

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.

21 With those provisions in mind, the cross-examination of Mr Davies as to the design work of van der Meer Bonser on the site as it may have been affected by the free-standing brick wall disclosed : Q. Now, of course, the work you were performing at this site was the work of a designer? A. That's correct.

Q. Was any physical examination done by anyone at van der Meer Bonser in relation to the design of the earth works for this project prior to their - ? A. No.

Q. What examination if any was done by van der Meer Bonser in relation to the earth works design for this site, prior to that designing? A. We had site surveys which gave us details of levels and we used those - used that survey as we referred to earlier geotechnical reports and the like to give us the information we needed to prepare the earth works for us.

Q. Did any of that information include information to you in relation to the free-standing wall in the adjacent property the wall being the one which had collapsed? A. No.

Q. Did you ask for any information regarding such hazards from Develco? A. No.

Q. Did you ask for any information regarding such hazards from Consolidated Constructions? A. No. Can I just make a point on the reference to this code and using it or not using it? What we did in the process of detailing the earth works we filled the site and battered - do you know what I mean by the word battered?

Q. Yes? A. We battered down to the boundary around the perimeter so there was no impact whatsoever during the earth works phase on any adjacent property or any adjacent allotment because as I said the fill level was struck, compacted and it was battered down all the way around those, the north and the western boundary.

Q. But, of course, your work extended beyond merely that as you described. Your work also included the design of excavations which were going to go close to the boundary where that wall was, that is so wasn't it? A. Well it's detailed excavation that's not the excavation that is referred to in this code.

Q. Well, there has been - there is a difference between excavation and detailed excavation, is there not? A. Yes.

Q. And what is the difference? A. Well excavation is a general broad term which is like a cut to fill on the site where we cut and fill so that is a major excavation, detailed excavation is the forming up of footings and the like.

Q. Your design work included both? A. Yes it did.

Q. The trench near the boundary near where the wall fell. Are you aware of that? A. No, I wasn't aware of that.

Q. Were you on site at any stage after July to see such a trench having been built? A. No, I wasn't.

Q. When was the first time you were aware that a trench on that boundary had in fact been dug? A. As I said in the previous proceedings, I wasn't aware of any work being done in that south western corner up against that wall.

Q. Well, if you had been there before December 1997 I take it you would have seen such a trench it being about a metre deep? A. No, I was confining - the visits I made was confined to the northern boundary. The progress of the work started in the north eastern corner.

Q. So would it be the case that the work done on the western boundary near where that wall had fallen that at no stage prior to the wall falling in December 1997 you had visited that part of the site? Well had anyone from van der Meer Bonser visited that part of the site?

Q. Answer the question? A. The answer is no.

Q. Were there any investigations done of the site next door to 10/12 Kent Rd Mascot being the site on which that wall which fell on 15 December 1997.

Q. Well, answer the question? A. No.

Q. You were not aware of anything in relation to the adjacent sites, were you? A. I was aware that the building next door had footings and we issued details to allow concrete work from where, around the boundary.

Q. Were you aware of the footings of the wall on the western side? A. The wall that collapsed?

22 Relevant to the question of penalty, the defendant relied upon the evidence of three witnesses. Each of them provided an affidavit and was subject to oral examination. Consistent with the cross-examination of the prosecution's witnesses, in particular that of Mr Leavy and of Mr Davies, much of this evidence was directed to minimising the role of the defendant, and hence its culpability for what occurred, in contributing to the collapse of the brick wall by referring to the failures of others on the site. The most prominent evidence in that respect was that of Andrew Peppercorn. However, and before dealing with his evidence, it is convenient to consider the evidence of Alfred John Bell who was, and had been since 1990, the defendant's Construction Manager at the time of the subject incident.

23 Mr Bell said he had been engaged in the construction industry for 42 years, both in England and in Australia, and in July 2000 he was appointed to manage the defendant's operations in this State on transfer from Western Australia which was its principal operating location. He commenced employment with the defendant in 1985 and had been its Construction Director since 1998. The defendant was established in Western Australia in 1961 and Mr Bell claimed it to be "one of Australia's leading building and civil engineering contractors"; it commenced operations in New South Wales in 1989 and had since been engaged in a number of large construction projects in this State to the extent that over the last four years the defendant's turnover in New South Wales reached approximately $70 million. However, Mr Bell frankly conceded that "due to this growth, and several changes of senior management, there have been some growing pains" so that "prior to the accident on 15 December 1997, long established practices such as Safety and Training were not given the same high level of importance and diligence as had been the practice in Western Australia". In indicating that that was no longer the case, Mr Bell specified changes made to the defendant's safety management system in the following way : 30. Since the accident, a number of significant changes have been made to the Company's safety management system. Our safety systems and procedures have been completely revised and re-written. The changes are set out in detail in the Affidavits of Andrew Peppercorn and Wayne Game and filed in these proceedings.

It is important to stress that those systems and procedures have been implemented and they are working. Site specific safety plans, safety inspections, safety audits, safe work method statements, safety inductions and training are now part of the strong culture of safety and risk management. This process is on-going.

As part of this on-going process, we are currently pursuing an application for Best Practice from NSW Department of Public Works and have received acceptance of our Safety plans by Construction Policy Steering Committee (CPSC).

We have introduced a system of external audits by both MBA and TRG Consultants & Auditor Specialists. Our own OH&S Training and Auditing is clearly showing a large improvement, and one expects the external audit to confirm this.

We have also put in place a Company/Staff Safety Committee to help continued improvement.

We are currently in the process of putting in place "Subbie Packs" with all sub-contractors that work with us. We also assist with the preparation of their safe work method statements, as well as offering further training both in-house and external to them. In February 2000, the Company held a seminar for our major sub-contractors. We invited a number of external consultants to address the sub-contractors on all aspects of the Company's safety management systems and their responsibilities as well as offering assistance with safety auditing, training and establishing their own safety plans and procedures.

Our own training concerning Safety and General Site Management continues and with regular refresher courses for all staff. Regular Project Manager and Staff Meetings are helping to highlight areas of improvement with feed back from all levels of staff.

Prior to the accident in December 1997, the Company had undertaken significant construction projects without a significant safety incident. The Company had in place safety policies and procedures but clearly these were inadequate as they failed to identify the hazard that caused this accident.

I believe the Company now has in place the necessary expert personnel, safety systems, procedures (and implementation) and on-going monitoring to ensure that there is never a repeat of the safety failures that lead to the tragic deaths of Darragh Whelan and Matthew Twomey in December 1997.

24 In expressing on behalf of the directors and management of the defendant sincere regret for the accident which occurred on 15 December 1997, Mr Bell indicated that since the incident the defendant had expended approximately $300,000 on safety training and other safety precautions. Nevertheless, Mr Bell emphasised in relation to the subject incident that "there was a problem in terms of senior management at managing director level ... not enforcing our normal work method statements and systems" and the director of the defendant's New South Wales operations so concerned "left the Company and he left it in somewhat of a dispute with ourselves and one of the matters in dispute related to this particular subject".

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.)

26 And so it was, in this respect, that Mr Peppercorn frankly acknowledged in his affidavit the contribution of the defendant to the present incident in the following way : 64. Sub paragraph 7.2.4 on page 14 of the Judgment identifies a number of failures on the part of the Company.

65. Notwithstanding the contributing factors set out above, the Company, as Principal Contractor, had overall responsibility for the safety of the Site. It did not, as it should have, identify the hazard posed by the free-standing wall and take immediate steps to neutralise that hazard.

66. The Company relied too heavily on its previous dealings with Byrne Civil and the fact it knew Mr Whelan was a qualified engineer. Clearly, however, Mr Taylor (Company Site Engineer) was too inexperienced for the role he was undertaking.

67. Moreover, the Company failed to follow its own safety procedures as outlined in the: · Site Safety Plan dated 10 December 1997 and subsequently amended on 5 January 1998. Annexed and marked "F" is a true copy of the original Site Safety Plan. · Health and Safety policy dated 3 October 1996, a true copy which is annexed and marked "G". · Safety Induction Handbook dated 27 May 1994, a true copy which is annexed and marked "H". · Company's project manual and tendered in the proceedings as part of the prosecution brief ("Project Manual"). (Although the said annexures have not been reproduced in this judgment, a review of their terms disclosed that indeed the safety procedures outlined were not followed by the defendant at the Mascot site thereby supporting the existence of the alleged risks to safety as set out in the summons here.)

27 During his visit to the site on 16 December 1997, Mr Peppercorn met representatives of various unions concerned in the construction industry and said it became clear to him that Byrne Civil Engineering Constructions had sub-contracted its labour hiring arrangements to Subcrete Constructions and J D Services to provide labour but it also became apparent that neither of those companies had adequate workers' compensation insurance in place to cover the deceased. Accordingly, Mr Peppercorn recommended to the defendant it make ex gratia payments to the families of each of the deceased workers and thereupon a payment of $64,500 was made to Mr Whelan's family and $67,500 to Mr Twomey's family with a further $3,000 paid for funeral expenses for Mr Whelan; the defendant also paid for the erection of a plaque on the Mascot site in memory of the deceased.

28 Although I do not particularise it because other evidence to which I shall refer does so, Mr Peppercorn outlined in his affidavit the changes made by the defendant to its management system as affecting workplace safety following the December 1997 incident and, in expressing the belief that such positive steps will minimise the chance of such an incident ever occurring again, concluded in his affidavit as follows : 82. Both the Company and Consolidated WA had an extremely good safety record before this accident and we are at a loss to explain why well established Company procedures were not followed on this project. We are committed to strive for best practice in our business and safety and health are at the tope of our agenda. We have been in business for 40 years with the last 12 of those in NSW, and to my knowledge nothing of this nature has ever occurred before this accident.

83. Whilst not in any way walking away from our own responsibilities, Consolidated Constructions would ask that the Court also take into account the large number of contributing causes to the accident.

84. The Company sincerely regrets the accident and asks that the Court take into consideration the significant steps the Company has taken to ensure that an accident of this nature will not occur again.

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.

30 In reviewing the defendant's safety systems, Ms Harris assessed them against criteria applicable to the construction industry in accordance with the requirements of relevant legislation and Australian Standards; the audit process covered five broad categories, namely, occupational health and safety management, occupational health and safety work practices and control, hazard management, fire safety and emergency management and workplace inspection. Ms Harris concluded that the defendant's then current safety management system was "unplanned and uncoordinated and lacks direction and focus" so that "a more cohesive planned and coordinated approach is now required ... to enable the Occupational Health and Safety management system to move to the next stage". In making 53 discrete recommendations to direct and strengthen safety management within the defendant's operations, Ms Harris summarised the then position as she saw it in the following way : Management, OH&S Committee and employees are to be commended, not only for their efforts to date, in managing OH&S within their working environment, but also their commitment to improve these management systems towards 2000 and beyond.

There appears to be a lot of activity taking place within Consolidated Constructions Pty Ltd to improve the working environment not only for employees but also contractors, sub-contractors and the public. This was evident by completed Site Entry Permits, Site Safety Plans, completed Work Place Inspections and audits with follow up action taken, completed Infringement Notices and other documentation on the sites.

The observations noted in the body of this report are a reflection of the current status of the Occupational Health and Safety Management System within Consolidated Constructions Pty Ltd (NSW).

The observations made and the conclusions drawn were mainly as a result of verbal feedback from management and employees, reviewing documentation, as well as visual workplace inspections of the various sites located at Chatswood, Milsons Point, Carlingford and Botany.

The OH&S Management System Audit identified that certain OH&S systems lacked specific documented processes and procedures relating in a non standard approach to managing OH&S issues and include:- · OH&S policy does not include contractors, visitors and the public. It is not dated and outdated versions are still in circulation; · no OH&S Strategic Plan with clearly defined objectives, strategies and outcomes; · current documented OH&S Management System is incomplete; · the Project Management Manual, Section 6 relating to Safety lacks detail; · no documented OH&S Program; · clearly defined OH&S objectives and outcomes not established for 1998; · no documented OH&S Action Plans; · progress reports on OHS&R Action Plan not developed and disseminated; · OH&S Achievement reports not established and disseminated; · no documented procedure to deal with OH&S issues; · no documented professional development plans that include Occupational Health and Safety for managers and supervisors; · training strategy not established; · no documented system to regularly assess the effectiveness of OH&S Training; · no documented Risk Assessments; · no documented system in place to prevent the purchase of an order with OH&S specifications; · formal accident/incident investigation not conducted for all accidents/incidents; · Action plans are not developed when monthly accident analysis conducted; · no formalised procedure for the purchase of chemicals; · recent noise survey not conducted; · no formalised system for reviewing risk controls annually; · Fire/explosion hazard assessment not completed; · no documented Rehabilitation Policy, Program and Procedures; · no documented Hearing Conservation Program; · no documented Manual Handling Program; · no documented Infection Control Program; · no documented program for outdoor workers; and · site safety plans do not cover all OH&S requirements specific to each site.

To date, the thrust of the OH&S Program has lacked visionary ideals and strategies, and has been complicated by an uncoordinated approach to OH&S management, resulting in the inefficient use of available resources, and development of confusion.

The above items, once rectified, would provide a suitable standard for managing OH&S and allow for continuous improvement within Consolidated Constructions Pty Ltd through managers leading by example, a positive culture, empowerment of employees, and OH&S Committee, competent staff, systems, processes and outcomes well documented and visible. This overall improvement process would ultimately achieve excellence in OH&S with sustained continuous improvement.

31 Following the audit report by Ms Harris, the defendant commissioned SafeAid Services Pty Limited, Occupational Health and Safety Consultants, to review its policies and procedures for safety management and, in July 2000, a new manual entitled "Company Policy and Procedures Manual for Systems Safety and Risk Management" was produced. The manual was plainly most detailed and comprehensive in its coverage of the subject from management responsibility to process control to inspection and testing to corrective action to training to internal audit and to review; of present importance, the manual dealt with sub-contracting procedures, generic site safety instructions and site specific procedures.

32 As part of his responsibilities, Mr Game said he had made a number of improvements to the defendant's safety management system with respect to site safety plans, safe work method statements for sub-contractors, best practice management system, safety documentation and administration, weekly site inspections of each site, project safety audits, internal safety consultative committees and regular safety training programmes.

33 Like some of the other witnesses for the defendant, Mr Game had read the transcript and judgment in the matter concerning Byrne Civil Engineering Constructions. After acknowledging the defendant's failure to identify the dangers posed by the free-standing brick wall and to make it safe, including a failure by the defendant to properly ensure that Byrne Civil Engineering Constructions, as a sub-contractor to the defendant, complied with its statutory obligations and with the safety procedures set out in its tender, Mr Game expressed the following opinion : 46. I believe the Company's current safety procedures are now sufficient to identify the hazard(s) that lead to the collapse of the wall. Most importantly, the strict requirement for more extensive engineering and dilapidation reports extends to identification of hazards on adjoining properties.

47. This requirement is now in place irrespective of whether the Company has been advised that the Project Manager has obtained their own reports.

48. Based on these new procedures, it is my opinion that the failure to identify the hazard(s) which lead to the Mascot Accident, are most unlikely to reoccur.

34 The remaining evidence relied upon by the defendant was contained in an affidavit of Trevor Grant, a Quality Society of Australasia Certified Senior OHS Auditor in the category of occupational and safety management systems. Mr Grant, who was not required by the prosecution for cross-examination, held various certificates in safety inspection and auditing, together with a Graduate Diploma in Occupational Health and Safety from the Ballarat Institute of Technology and a Graduate Diploma in Industrial Relations from Monash University. His function was to conduct audits of safety management systems in New South Wales and Victoria and, for that purpose, had accreditation from the Quality Accreditation Society of New South Wales and Lloyd's Register as a Senior Occupational Health and Safety Auditor for New South Wales, both obtained in 1996. At the defendant's request, Mr Grant conducted a desktop audit of the defendant's safety management system in April 2001 to determine its then status assessed against the criteria laid down by the Construction Policy Steering Committee of the New South Wales Government as applicable to the construction industry in terms of relevant occupational health and safety legislation, codes of practice and Australian Standards. In his review, Mr Grant considered various safety reports from the Master Builders' Association and the audit report of Ms Harris referred to above. The effectiveness of the defendant's safety management system was assessed by him in the following way : The current occupational Health and Safety Management system is planned and co-ordinated, with a strategic approach driven by a commitment from the most senior management of the company, the efforts of the OHS&R Manager to improve and implement the current system within the company to its current high level of 2 is an outstanding achievement by a dedicated professional.

The tremendous amount of work and commitment from management, Health and safety committees, contractors and employees is evident on the projects and sites visited. Strategies in place to maintain and improve the company's OHS&R Management System, need to be continuously reviewed and updated to achieve continuous improvement. In summary, Mr Grant said : It is obvious from the audit findings that great deal of time, work, and commitment has and is taking place within Consolidated Constructions P/L since the audits carried out by Sirrah Consulting and the Master Builders Association audit department highlighted the deficiencies within the previous OHS&R System.

Consolidated Constructions are to be commended for the actions that they have taken to improve the OHS&R Management system within the company since those audits. The appointments of a new Construction Director, an OHS&R Manager and the recent appointment of general manager to the company further empathises ( sic - emphasises) the commitment being shown by Consolidated Constructions P/L in their efforts to obtain best practice in OHS&R.

The OHS&R Management System audit identified that there has been a considerable amount of work carried out on all elements of the OHS&R System that is in operation within Consolidated Constructions P/L whilst some elements need further expansion and development and, these areas are highlighted in the auditors recommendations ...

The thrust of Consolidated Constructions P/L OHS&R program is one of vision and strategies to enable the company to use the available resources efficiently to further develop the companies OHS&R Management System and standing within the industry.

The attached recommendations when implemented would continue the overall improvement process ultimately achieving excellence in OHS&R by sustained and continuous improvement. In the result, Mr Grant referred to the circumstances of the present incident which occurred at the Mascot site on 15 December 1997 and, based upon the audit conducted by him, expressed the view that such an incident was "most unlikely to re-occur".

35 Finally on the evidentiary material, it was made plain in relation to the subject incident that, and although the present defendant and Byrne Civil Engineering Constructions were charged with breaches of s 16(1) of the Occupational Health and Safety Act, none of the other entities involved (apart from Develco Project which successfully obtained the withdrawal by the prosecutor of the charge against it) were similarly prosecuted; those entities were van der Meer Bonser, Northrop Holmes Engineers, Davis Earthmoving and Quarrying, J D Services and Subcrete Constructions.

36 The prosecutor, through his counsel Mr J J Millar, helpfully provided a written outline of submissions and supplemented it orally at the hearing. Counsel accepted, correctly in my view, that the true measure of penalty lay in the nature and quality of the offence and not merely in its result, here the death of two workers on the site. The objective seriousness in qualitative terms was put by Mr Millar as "serious ... given that relatively simple and inexpensive steps could have been taken to avoid the risk" and where the incident "occurred in circumstances where one, not too dissimilar, event occurred (on another site) shortly before this did". It was emphasised by counsel in this respect that the defendant as the principal contractor, by comparison with Byrne Civil Engineering Constructions as a sub-contractor, "had the ultimate responsibility and the level of supervision ... which might have led to the failures not occurring". Counsel described what I understood to be the essence of the objective seriousness of the defendant's failures in this way : 6. Despite the fact that the excavation being performed by Twomey, Whelan and Byrne was always part of the work required by the defendant's contract with Develco Projects Pty Ltd, and that the defendant's site manager and general foreman directed that the work be carried out, no assessment was made by the defendant of the stability of the wall and the effect that excavation work adjacent to the wall would have on the foundations of the wall. Despite the fact that excavation was to take place immediately adjacent to the wall, it appears that no attention was paid by anyone on behalf of the defendant to the wall at all and the possible consequences of excavation beside the wall.

7. Since the defendants did not identify the hazard posed by the wall, particularly having regard to the work to be undertaken beside the wall, it appears that it did not notice the absence of any reference to the wall in the dilapidation survey and did not alert Van der Meer Bonser Pty Ltd to the presence of the wall adjacent to the site. It ought to have been obvious to the defendant that assessment of the stability of the wall was required, particularly having regard to the work to be undertaken and, following a visual inspection of the area, the existence of the saw cuts on the adjacent property parallel to the wall. Clearly the defendant was not on the offensive to search for, detect and eliminate so far as was reasonably practicable the risks to safety, health and welfare which existed in that part of the site which was in the vicinity of the wall.

37 As to the features subjective to the defendant to take into account in determining an appropriate penalty, Mr Millar made the following points - (1) The defendant pleaded guilty thereby expressing contrition for its failures and enabling the proceedings to be dealt with in a timely and cost effective way. (2) The earlier a plea was made the greater the weight to be attached to it. (3) The case here "would have been a long and expensive hearing if the defendant had put the prosecutor to proof of all matters." (4) Although the defendant's frank admission of its failures was consistent with the guilty plea, a thread running through the defendant's evidence, particularly that of Mr Peppercorn, was that other persons were involved - that approach can be taken too far so as to detract from the level of contrition otherwise resulting from the plea of guilty. (5) In assessing the value of the defendant's actions in improving its safety management system after the occurrence of the incident, care should be taken not to place too high a value because there was a system in place at the time of the incident but it was not followed. (6) Further, the steps taken by the defendant after December 1997 did not really come into effect until about mid-2000; although "not a hasty response ... the fact remains that they have done something and they have to get credit for what has been done, albeit lately". (7) The ex gratia payments to the families of the deceased workers had to be taken into account in the defendant's favour.

38 Mr J P Phillips, counsel for the defendant, offered its plea in mitigation of penalty on the proposition that the objective seriousness of the admitted offence was to be assessed in light of the facts supporting the charge and the level of culpability the defendant had in relation to the total criminality involved of all of those persons present and responsible for the events which occurred on 15 December 1997 at the Mascot site. In the result, Mr Phillips submitted that having regard to "the full circumstances of the accident ... one can determine that the defendant in the overall scheme of things was not as culpable as other defendants or potential defendants who either caused or contributed to the breach of the Act". In other words, as counsel said, "when one compares the actions of others involved in this case the actions and/or failures of the defendant, without detracting from their seriousness, are of lesser magnitude compared to the actions and/or failures of others". Indeed, counsel proceeded to submit that the evidence clearly revealed "the involvement of other parties all of whom either caused or contributed to the accident on 15 December 1997".

39 In developing that line of argument, Mr Phillips specified those other parties involved and the nature of their involvement in the following way - Blue Mountains Water Company : The occupier of the adjacent site on which the brick wall stood before its collapse. The wall served no real purpose, yet the Blue Mountains Water Company left it in place even though it permitted the slab on which the wall stood to be cut thereby impairing the stability of the wall. Develco Project : The original developer and principal contractor on the site. van der Meer Bonser : The design engineers for the site who did not inspect it before doing the design work. Northrop Holmes Engineers : The engineers who provided the dilapidation report for the site but without identifying the hazard of the brick wall on the perimeter of the site near the Blue Mountains Water Company. Davis Earthmoving and Quarrying : The original excavators of the site, including excavating the trench along the length of the wall which collapsed. J D Services and Subcrete Constructions : The respective employers of the two deceased workers, who supplied their labour to Byrne Civil Engineering Constructions and who must bear the original liability in relation to the statutory duty to their employees. Byrne Civil Engineering Constructions : The sub-contractor for the excavation work, including along the length of the brick wall which collapsed.

40 Next in line, as Mr Phillips reasoned, was Consolidated Constructions as the present defendant whose culpability had to be seen in the overall circumstances which led to the accident. In essence, counsel identified its error as being "a failure to recognise the hazard already created by others and which existed at the time when it came on site. Its error was a failure to look for and indeed a failure to find the relevant hazard". It was emphasised in this respect that the stability of the wall was severely compromised in about July 1997 when the earlier excavations were made as part of the earthworks programme on the site and it was not until late-November 1997 that the defendant commenced, although it was involved with the site a little earlier. Emphasis was further placed by counsel on the fact that the presence of the brick wall was obvious to an inspector of the WorkCover Authority in early-November 1997 when he took photographs of the site but without any further enquiry being made about it.

41 As to the subjective factors favouring the defendant, Mr Phillips pointed to the plea of guilty, remedial action taken by the defendant, its contrition, co-operation with the WorkCover Authority and the ex gratia payments made to the estates of the deceased workers. Counsel submitted that the defendant was clearly shown to be "a good corporate citizen".

42 I agree with both counsel that the proper approach in the sentencing process is well established to the effect that the determination of penalty must reflect the nature and quality of the particular offence so as to compel attention to occupational health and safety risks in order to ensure persons are not exposed to such risks at their workplaces but not at a level which would be oppressively high: see Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 and cases cited therein in par [69]. I would only add, however, the observation of the Full Bench in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at p 475 that, although the primary factor to look at in fixing penalty is the objective seriousness of the offence, subjective factors peculiar to the defendant should properly be taken into account in mitigation; such factors (a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety), in the order of things, must play a subsidiary role to the gravity of the offence itself and should not produce a sentence which fails to adequately reflect the seriousness thereof: see also Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at p 77; Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at p 636; (2000) 99 IR 29 at p 51; and WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at p 712, (2000) 100 IR 64 at p 75.

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.

44 In WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at p 257, Bauer J helpfully, with respect, put the matter in this way : Whilst ... it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in the passage from C I & D Engineering previously quoted. The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that failure gave rise to a risk to health, safety or welfare.

45 In the present case, then, the collapse of the brick wall causing the death of two workers manifested the existence of a detriment to safety and provided a measure of the degree of its severity.

46 As to the contribution of other persons for what occurred, so much relied upon by Mr Phillips here to reduce the culpability of the present defendant, I have to say I think counsel overstated the position and in such a way as to invite error in the sentencing process. There can be no doubt, in my view, that in determining the culpability of a defendant the role played by other parties is necessary to be considered as part of a review of the total circumstances of the case. However, it cannot, I think, be used to itself reduce the culpability of a defendant in any sharing or proportionate way of an overall penalty but only as a factor assisting in the determination of the real culpability of the defendant for the offence charged. Mr Phillips put it this way : You do need to look at the circumstances of the events to identify what was the proportionality or what is the portion rather of the criminality of a particular co-accused, because if as I said, if we had had the whole range of possible defendants in these proceedings in the one hearing, one perhaps then has that proportionality of perhaps relief, one could perhaps feel it by way of the evidence that in the circumstances here one would have thought the starting point, as I have said in my submissions, is firstly the wall, the wall should not have been in that state at all. It was clearly not meant to be like that. ... it was perhaps a carport attached to the building where the Blue Mountains Water Company was to be found. The fact of the cutting slab compromised the wall. Then of course you then go to the beginning of the work on that site. We were not the principal contractor, Develco was. Develco had certain responsibilities. That then flows on to van der Meer Bonser Pty Ltd. ... the dilapidation [report] was commissioned by Develco ...

47 Although Mr Phillips said he was not suggesting that the proper process involved apportioning the total culpability between all of those persons responsible and fixing a penalty as a share thereof for a particular defendant, I think his submission came very close to that and, for that reason, I would wish to state my understanding that that is not what the sentencing process involves in assessing the objective seriousness or the nature and quality of an offence. I think the vice in the approach by Mr Phillips, who clearly used it to support a penalty lower than what it might otherwise be, may be seen from his following submission : One has to look at the total circumstances in assessing the nature and the quality of the offence to identify how much of the whole incident really was the responsibility of the relevant accused which is before the Court now. ... In doing that one might say there are players in this whole incident who are more blameworthy than the accused who is before the court and that does require assessment of the total circumstances of the events and in making that assessment one then could form a proper view of the nature and the quality of the offence. To do otherwise might, I think as the cases say, suggest some form of justifiable grievance in the accused who says: Well, just because I was there and I am the only one left, or I am the only one that WorkCover Authority, for whatever reason, decides to prosecute. One has to still look at the whole circumstances and say, "What part of the whole circumstances did I play?" True it is, if we had done what we should have done, this accident may not have happened, and I say it may not. If the proper work had been done before in a safe way before we got there, this wall equally may never have fallen.

48 It will be therefore apparent, I think, that Mr Phillips' submission was dangerously close to what I have referred to as apportioning a total penalty as between persons said to be responsible for the occurrence of the accident. I am unaware of any such approach in the sentencing process and, I think, it should be stated as plainly as may be that it is an approach leading to error. To the extent that Mr Phillips relied upon the parity principle in sentencing to support such a submission, I am of the view that that principle does not require a sharing or apportionment of culpability (and hence of sentence) but rather is designed to ensure that there should not be a marked disparity between sentences given to co-offenders for the offence for which they have been respectively found guilty. As Mason J, as his Honour then was, commented in Lowe v R (1984) 154 CLR 606 at pp 610-611 : 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.

49 Brennan J added in that same case (154 CLR at p 617) : The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences in unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case.

50 In Postiglione v R (1997) 189 CLR 295 at p 301, Dawson and Gaudron JJ cited the above comments from Lowe with approval and emphasised that the parity principle was concerned with treating like with like to do equal justice but, "in the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances". I see no support in the parity principle, or in sentencing principles generally, which would support the notion suggested here that a sentence should be fixed at a level lower than what it otherwise would have been for the offence because other persons may also have committed an offence in relation to the particular incident.

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.

52 It is true, as I have indicated, that other persons should have been aware of the presence of the brick wall and of its potential to do harm but, as the principal contractor, the defendant itself had that responsibility as it brought sub-contractors onto the site to perform various phases of the work. Once the defendant became the principal contractor the Mascot site became its concern and, although others (such as Byrne Civil Engineering Constructions as a sub-contractor) should also have been conscious of the brick wall, it was, in my view, the principal contractor who had primary and direct responsibility for safety on the site as construction work proceeded under its management.

53 As part of its failure to acknowledge the presence of the brick wall, the defendant did not have a site safety plan after it commenced on the site until 10 December 1997 and, even then, such plan was not observed by those of its employees responsible for management of the site. Thus, the failure to acknowledge the existence of the brick wall and the lack of an early site safety plan combined, in my view, to create the relevant detriment to safety which culminated in the collapse of the brick wall on the detailed excavation and trimming work by the sub-contractor, Byrne Civil Engineering Constructions. Notwithstanding the reduced levels on the western boundary following the bulk earthworks, the defendant instructed Byrne Civil Engineering Constructions to carry out the detailed excavation work along that boundary of the site, including adjacent to the brick wall, and such work entailed the removal of sub-soil foundations to a depth of approximately 600 to 1,000 mm below the existing footings of the wall thereby further increasing its instability. Such instructions by the defendant, in my view, to a sub-contractor new to the site and perhaps not completely familiar with its features represented a greater degree of culpability on the defendant's part for what occurred.

54 In the result, I would assess the nature of the subject offence as being extremely serious and as falling within the middle portion of the available range of seriousness compared to a worst case. In that respect, the essential particulars of the charge in pars (a), (b), (c) and (f) represent the real culpability of the defendant; the remaining particulars, whilst important, are secondary to the principal failures. However, I think the prior offence of the defendant committed on 12 September 1996 on the construction site at Brookvale when a masonry block wall collapsed, albeit not resulting in any injuries, exacerbated the seriousness of what occurred on 15 December 1997 on the Mascot site. There, the Chief Industrial Magistrate in the sentencing process observed (at p 5) that the defendant "failed to exercise appropriate diligence in following its own prescribed guidelines" and his Worship added that "had those guidelines been followed, the failings of its sub-contractors may have been detected and the accident may not have occurred". In the present case, of course and as the facts disclosed, a not dissimilar situation arose on the Mascot site but where the defendant's safety plan was not finalised until about five days before the incident occurred and again where a sub-contractor was directed to perform excavation work regardless of the presence of an unstable brick wall. As his Worship observed in that earlier case (at p 4) : Unfortunately, wall collapses are not uncommon on construction sites and such collapses create potential risk of serious injury to those nearby.

As a result of this incident the defendant reinforced its own stringent guidelines. Delegation of work is now done with greater caution and scrutiny. Work method statements are insisted upon.

55 I have to say, notwithstanding that experience some 15 months beforehand, the defendant was again involved in an incident concerning the collapse of a wall where, as here, a sub-contractor had been engaged to perform associated works. It is, therefore, timely to repeat what I said in Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at p 49, namely : I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; ... Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment.

56 In reduction of the penalty otherwise considered appropriate, the defendant is entitled to a significant discount for its plea of guilty. It is true the plea was made relatively late in the proceedings, about 10 days before the defended hearing was due to commence, but as Mr Millar conceded the plea thereby obviated "a long and expensive hearing if the defendant had put the prosecutor to proof of all matters". In addition, it was clear from the way in which the hearing on sentence proceeded before me that the defendant had provided full assistance to the WorkCover Authority and to its inspector in the investigation of the incident so that I place considerable weight on the utilitarian value of the guilty plea in assessing an appropriate sentence. I propose to quantify the effect of the plea of guilty as calling for a discount of 20 per cent.

57 Other circumstances of this case subjective to the defendant operate in mitigation of a penalty otherwise considered appropriate. I have earlier in these reasons detailed at some length the evidence called for the defendant from Mr Bell, Mr Peppercorn and Mr Game as to its safety policy, management difficulties experienced by it at the time of the incident, immediate steps taken of a remedial nature, an extensive and wide-ranging review of its safety policies, practices and procedures, an up-grading to board level of responsibility for occupational health and safety and a sophisticated, on-going system for auditing its safety management systems. That evidence earlier cited needs no repetition, but I would emphasise the importance, as I view it for present purposes, of the site specific safety management plan as dealt with in the evidence of Mr Game and of the results of the independent survey of safety measures conducted by Ms Harris and of the audit by Mr Grant.

58 The commitment of the defendant to workplace safety was manifest from the evidence of Mr Bell and Mr Peppercorn, supported by the evidence of Mr Game as to the implementation of appropriate measures at a cost to the defendant of approximately $300,000. That commitment was confirmed by the evidence of Mr Grant whose separate audit of the measures introduced by the defendant was most favourable and for which the defendant should receive due recognition.

59 The defendant's response in terms of its obvious concern for what occurred with the fatal injuries to Mr Whelan and Mr Twomey by the ex gratia payments to their families in the total amount of $135,000 should be acknowledged as a practical and worthwhile demonstration of contrition. I propose to so recognise it.

60 It will be apparent from my comments I have been much and favourably impressed with the reaction of the defendant in subjective terms to the tragic incident which occurred at the Mascot site on 15 December 1997. It is clear that it is unnecessary in the present case to include in the penalty determined any component for particular deterrence of the defendant. However, and having in mind the inherent risks which exist on sites from brick walls, I think it important to include a component for general deterrence to make it plain to those operating in the construction industry the need to be alert against such risks on the pain of incurring severe penalties.

61 I propose to allow for the subjective factors I have identified a further discount of 10 per cent. Thus, my assessment of an appropriate discount for the subjective considerations as including all relevant matters, including the plea of guilty, is a total of 30 per cent. In the result, I would fix an appropriate fine to impose upon the defendant as being an amount of $265,000, with the prosecutor to have a moiety of the fine; the defendant is to pay the prosecutor's costs of the proceedings on a party-party basis.

62 I make the following orders - 1. The defendant is found guilty of the subject offence and a conviction against it is entered accordingly. 2. The defendant is fined an amount of $265,000, with a moiety to the prosecutor. 3. The defendant shall pay the prosecutor's costs on a party-party basis; leave is granted to the parties to apply to the Court to fix the quantum of costs if agreement cannot be reached, provided that such leave is exercised within 21 days of today. ________________________

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