WorkCover Authority of New South Wales (Inspector Henson) v Kingstone Constructions Pty Limited and Brian Willis - [2006] NSWIRComm 130 - NSWIRComm 2005 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector Henson) v Kingstone Constructions Pty Limited and Brian Willis

[2006] NSWIRComm 130

Industrial Relations Commission (NSW)|2005-05-18|Before: Staunton J, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2005-05-18

Before

Staunton J, Mr J

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

Background [3] As at Saturday, 6 September 2003 (date of incident), Kingstone was in the process of building and constructing residential premises (house) on the site. In the weeks preceding the date of the incident, the construction stage of the house had proceeded to the 'close up' stage, that is, where all brick work on the house had been completed, roof tiles had been laid on the house and completed, the front door of the house had been hinged, a frame had been made ready for placement of gyprock lining and the yard of the site had been cleaned. [4] As at the date of the incident, it was estimated that the house would be completed in a 6 week period. The site was not enclosed by a perimeter fence and had never been enclosed during the period of construction.

[2]

[5] At approximately 11:30am on the date of the incident Jack Coulter and his friend of approximately seven years of age, Hayden Vitols were playing at the site with a straw hat that Jack Coulter had brought to the site. [6] Jack Coulter threw the hat into the air and it landed on the fibre cement sheeting (sheeting) placed above the entry door alcove of the house. Jack Coulter attempted to retrieve the hat by climbing onto the timber frame of the house next to the door. He then crawled onto the sheeting to reach the straw hat. As Jack Coulter climbed on the fibre cement sheeting, the fibre cement sheeting collapsed and Jack Coulter fell approximately 2.73 metres onto the ground below, striking a sandstone boulder protruding from the ground. [7] As a result of the incident, Jack Coulter sustained a laceration to his right little finger and a fractured right talus bone in his right foot as well as ongoing trauma. Jack Coulter required the use of a wheelchair for approximately 8 weeks. [8] On Monday, 8 September 2003, Siedlecki telephoned Mr Willis to report damage to materials at the site by children. [9] On Monday, 8 September 2003, Mr Willis attended the site with Mr Siedlecki. He found some broken Hardie Flex Sheeting near the front entry and what appeared to be blood on the ant capping and the ground. [10] At that stage, Mr Willis did not realise what had occurred, or have any further details regarding the accident.

[5]

[15] Kingstone did not report the accident to WorkCover. WorkCover first learned about the incident on or about 9 September 2003 when contacted by Mrs Coulter. [16] On 11 September 2003, Inspector Page issued Kingstone with Improvement Notice 7-36576 concerning the erection of a perimeter fence and site signage. Fencing work was underway during the inspector's visit. Perimeter fencing of the site was completed by 1pm on 12 September 2003. Investigation [17] At approximately 10:20 am on 1 December 2003 the prosecutor attended the site in response to a verbal notification of the incident. The Prosecutor observed the following: [17.1] A two storey brick residential house with no signage, a letterbox at the front of the adjoining property had the number 21 on it and the adjacent property had a letterbox with the number 17 on it. [17.2] The Prosecutor walked up the concrete driveway and turned onto the adjoining path, to the south western/rear entry door and alcove of Lot 21. no 19. [17.3] The entry to the rear alcove consisted of three concrete steps up to a concrete veranda, surrounded on two sides by a black aluminium handrail 1,030 mm high (1.03 metres). [17.4] The entry alcove walls were sheeted with textured fibre cement sheeting with various timber beadings. [17.5] The entry door was white with a frosted decorative triangular glass panel. [17.6] The ceiling of the alcove was lined with flat cement fibre sheeting approximately 1,300 x 950 mm (1.3 m x 0.95 m). [17.7] The distance from the ceiling sheeting to the ground was approximately 2,730mm (2.73 metres). [18] As at the date of the incident, Kingstone employed Siedlecki as site supervisor. Siedlecki commenced employment with Kingstone in the position of site supervisor in June 2003. Siedlecki had prior occupational health and safety training from previous employers. Siedlecki, in the course of his ordinary employment, attended the site approximately every second day between Monday and Friday. Siedlecki was also the nominated site supervisor for approximately 15 other Kingstone building and construction sites located between Rouse Hill and Nelson Bay. Mr Willis supervised Siedlecki and occasionally visited the site. General tool box talks with Siedlecki and the work crew took place at Kingstone's office once a month, on Friday, being pay day. [19] As at the date of the incident, Kingstone had not used fencing on any of its sites, but was in the process of introducing this requirement. There was no perimeter fencing erected at the site. Kingstone did not have in place a policy in relation to site security and the erection of site fencing. However, at the time of the incident, Siedlecki and Mr Willis had commenced investigations into the erection of site fencing, including obtaining quotes for site fencing from three fencing companies. Clause 235 of the Occupational Health and Safety Regulation 2001 has the effect that perimeter fencing must be provided for construction of a single dwelling house if a risk assessment identifies the need to isolate particular hazards at the site that cannot be controlled by means other than perimeter fencing. [20] In May 2003, Kingstone had made inquiries with Garrisons General Insurance Broking in relation to implementing an occupational health and safety management plan for Kingstone. [21] Prior to the date of the incident, Siedlecki had performed a visual risk assessment of the site. Siedlecki assessed the front veranda of the house to be a risk and accordingly shut off those doors and locked them with a dedicated key. No other measures had been taken to prevent members of the public from accessing the house or the site. Siedlecki had not received instructions from Kingstone in relation to site security. [22] Prior to incident, Siedlecki was aware that persons, other than employees of Kingstone, and being persons known to be under the age of 18 years, had entered the site without invitation from Kingstone or the owners of the site and removed material from inside the partly constructed house for the construction of ramping on the site. Siedlecki's record of interview dated 6 May 2005 included the following response: 'We didn't really know that the accident had occurred until WorkCover contacted us and I met [the inspector] on site. We had heard that something had happened but had no information. Kids were on site every day, stealing material or removing things from the building, mainly for a skateboard ramp on the driveway, they were removing the Stucco sheets from the garage and taking bricks etc to build the ramp every day especially on weekends. ' Following the incident [23] Following the incident Kingstone introduced a site fencing policy whereby all construction sites are required to have perimeter fencing installed from the commencement of site works until the week prior to the handover of the site to the client. The perimeter fencing is to be chained and padlocked upon departure from worksites. [24] This incident alerted Mr Willis to the need for protective fencing at all times. The Company have since instituted a policy of protective fencing at all sites at the instigation of Mr Willis.

[6]

6 In addition to the agreed statement of facts, the prosecution has tendered a bundle of documents including a factual report of Inspector Henson, dated 3 December 2003 and tax invoices addressed to Kingstone Homes from Protective Temporary Fences Pty Ltd, dated 22 September 2003 and 10 September 2003. 7 Also tendered by the prosecution, without objection, were a number of photos of the site which have assisted me in understanding the layout and nature of the premises where the incident occurred. 8 On behalf of the second defendant, the following material was tendered without objection: · A letter of reference from Mr Steve Jackman, dated 7 November 2005. Mr Jackman is the New South Wales Building Manager of Masterton Homes Pty Limited. In his letter, Mr Masterton details Mr Willis' career history in the building industry, particularly his time with Masterton Construction and Homes. He also details Mr Willis' knowledge and commitment to occupational health and safety. He also describes the corrective steps Mr Willis has taken since the incident involving Jack Coulter. · A letter of reference from Mr Jim Masterton, dated 7 November 2005. Mr Masterton is the Managing Director of Masterton Homes Pty Limited. In his letter, Mr Masterton details Mr Willis' career history with Masterton Homes. He also attests to Mr Willis' good character and rectifying actions taken by Mr Willis since the incident involving Jack Coulter. He also affirms Mr Willis' unblemished safety record on building and construction sites. · A copy of the corporate defendant's occupational health and safety policy documents as well as associated safety procedure documents including the corporate defendant's Preliminary Site Risk Assessment and Site Fencing policy. All of that material and the procedures flowing from it has been developed by the defendants since the accident giving rise to these offences. 9 No oral evidence was received in the course of the proceedings. Relevant principles 10 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 11 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 12 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 13 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 14 On the issue of foreseeability, the Full Bench in Capral also stated:

[7]

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 15 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 16 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

[11]

24 Given all of the above and the nature of work being undertaken on the site as well as the state of the site generally, the potential for serious injury to a member of the public who entered on the site was foreseeable. Both Mr Willis and Kingstone were under a duty to ensure that, inter alia, the worksite did not pose a risk to employees as well as people other than employees arising from the conduct of their undertaking. Children such as Master Coulter and his friend were very much part of such considerations given the irresistible attraction that building sites represent to children, attested to by Mr Siedlecki above. 25 It should be noted at this point that, prior to the accident involving Master Coulter, Mr Willis had given consideration to the erection of perimeter fencing. As well, he had also taken steps to implement a formal occupational health and safety management plan for Kingstone. That process had not been completed at the time of Master Coulter's accident. There is no doubt that the accident provided the impetus for Mr Willis to take immediate steps to have perimeter fencing erected on the site and to accelerate implementation of an appropriate framework of occupational health and safety policies and procedures including a site fencing policy. 26 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 27 In the present case, Kingstone's undertaking was the construction of the house and the place of work was the entire work site, extending to the perimeter of the property. In the matters before me, the risk to safety stemmed predominantly from the fact that the site was not sufficiently secured to prevent access to the worksite after hours. 28 It was entirely foreseeable, in my view, that a failure to better secure the site with perimeter fencing exacerbated the risk to safety that such a site represented as well as the risk of injury. 29 The need to erect perimeter fencing to guard against risks presented by construction sites is addressed in cl 235 of the Occupational Health and Safety Regulation 2001 (the Regulation) that provides: (1) Subject to subclause (2), an employer must ensure that perimeter fencing is provided for all construction sites.

[14]

34 Mr Willis supervised Mr Siedlecki directly and was on the site occasionally. Although Mr Siedlecki was responsible as site supervisor for ensuring that the work site was safe, he was only present on site every second day of the week as he was also responsible for supervising some fifteen other Kingstone construction sites located between Rouse Hill and Nelson Bay. As the hands-on managing director of the corporate defendant, Mr Willis was ultimately responsible to ensure that the workplace was adequately risk assessed and to give clear directions as to site management and safety to employees by ensuring an occupational health and safety framework was in place. As an experienced operator in the building industry, Mr Willis should have been aware of the need to have in place such requirements. 35 Mr Masterton, in his letter dated 7 November 2005, attested to Mr Willis' experience and occupational health and safety awareness: I confirm that I have known Brian Willis of Kingstone Constructions Pty Limited for over 23 years …To my knowledge and because of my long experience with Brian Willis, I can confirm that Brian has always had a serious regard for Occupational Health and Safety issues. Through out the years that Brian worked for Masterton Homes whether as Supervisor or Construction Manager, his sites were meticulously kept and there was never an incident raised in respect to the manner in which he controlled and managed sites and construction of works. 36 Experience does not obviate the requirement of an employer to ensure that risks to safety are minimised at a workplace, regardless of whether the risk to safety extends to a person who is an employee or otherwise. As stated by Walton J in WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 at [61]: The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'.

[15]

37 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 38 It is not disputed that the particulars of the defendants' failures are all matters that Mr Willis, as the driving force of the corporate defendant, would have been able to implement prior to the accident involving Master Coulter. Indeed, the evidence is that Mr Willis had taken some preliminary steps to properly formalise the corporate defendant's approach to occupational health and safety. 39 After being informed of the accident, Mr Willis issued an immediate site fencing policy to the members of each Kingstone construction crew. A perimeter fence was erected immediately on site where the accident occurred and that fencing work was completed on 12 September 2003. 40 The defendant also introduced a site fencing policy whereby all construction sites were required to have perimeter fencing installed from the commencement of site works until the week prior to the handover of the site to the client. Further, the defendant took steps to ensure that the perimeter fencing was to be padlocked and chained upon departure from the worksites. These remedial steps were promptly adopted and implemented. 41 Overall, I do not consider the circumstances of the offences involving the defendants to evince an irresponsible or indifferent approach to occupational health and safety. The evidence points more to the circumstances of the offence being a lapse in an otherwise responsible approach to workplace safety. 42 In all the circumstances, I consider the offence to be in the mid range of seriousness and proceed to determine penalty on that basis.

[19]

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 46 Given the steps taken since the accident, I do accept that the defendants are unlikely to commit a similar offence in the future. Accordingly, considerations of specific deterrence should be properly tempered. 47 In the determination of penalty, the defendant is entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the decision of R v Thomspon; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I assess that discount at twenty five per cent. 48 There are also additional subjective features which the defendant is entitled to have taken into account. 49 Although no submissions were made as to the respective defendants incapacity to pay, I do acknowledge that the corporate defendant is a small company with less than ten employees overall, including as I understand it, Mr Willis and his wife. Mr Willis, by all accounts, is the driving force and controlling mind of the corporate defendant. 50 After working for over twenty years in the building and construction industry, predominantly with Masterton Homes, Mr Willis purchased the corporate defendant in 1992. His prior associates at Masterton comment very positively on his personal and professional attributes. Mr Masterton, the Managing Director of Masterton Homes Pty Limited stated: Brian Willis commenced working as a Construction Supervisor for Masterton Homes Central Coast in 1982. In 1988 he was promoted to the role of Senior Supervisor for Masterton Homes Central Coast in 1982.

[23]

51 In a similar vein, Mr Steven Jackman, the New South Wales Building Manager for Masterton said as follows: I have known Brian for over 20 years. Throughout that time I have always found Brian to be very conscientious, hardworking and reliable. At Masterton Homes he earned the respect of all his colleagues in Senior Management, the employees, suppliers and tradespeople. His work ethic, honesty and integrity are beyond reproach. Throughout the years that Brian Willis worked with me at Masterton Homes, whether in a supervisory role or as Construction Manager, he had a clear understanding and appreciation for maintaining site conditions and the requirements of Occupational Health and Safety. I am aware of the WorkCover prosecution of both Brian Willis and his construction company, Kingstone Constructions Pty Limited in breach of the Occupational Health & Safety Act 2000. I note that Brian has taken steps to rectify the circumstances that have lead to the WorkCover prosecution and prevent the chances of their reoccurrence. I am also aware that he has engaged the services of an external consultant for auditing of practices and procedures in that regard. 52 The above comments were not challenged by the prosecutor. As such, they are comments that reflect positively on Mr Willis in my sentencing considerations. To the extent that the corporate defendant is a small company and very much a reflection of Mr Willis, I believe those positive attributes spoken of by Mr Masterton and Mr Jackman can be said to reflect on Kingstone as well. 53 As attested to by Mr Masterton in his letter, Mr Willis 'deeply regrets the incident which has resulted in the WorkCover prosecution'. Mr Willis also cooperated with the WorkCover investigations into the incident. 54 As earlier indicated, since the accident, the corporate defendant, at Mr Willis' direction, has implemented a number of occupational health and safety initiatives at it's worksites. The defendant's new fencing policy requires perimeter fencing to be in place from the time work commences on a site until the week prior to the property being handed over to a client. The policy also requires that the perimeter fence is chained and padlocked once it is vacated for the working day. The defendant has developed occupational health and safety policy and procedure documents including a site risk assessment that is undertaken prior to tendering for any client. 55 Considering the additional subjective elements I have identified, the defendant is entitled to a further discount in my penalty considerations. 56 Taking into account all the matters I have referred to, I determine a penalty in these matters, reflected in the orders I now make, as follows: (1) Matter No IRC 4615 of 2005: WorkCover Authority of New South Wales (Inspector Henson) v Kingstone Constructions Pty Limited : Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty of $35,000. (ii) I allocate a moiety in the usual terms to the prosecutor. (2) Matter No IRC 4616 of 2005: WorkCover Authority of New South Wales (Inspector Henson) v Brian Willis : Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty of $5,200. (ii) I allocate a moiety in the usual terms to the prosecutor. (3) Between them, I order the defendants to pay the sum of $15,500 in costs to the prosecutor.

WorkCover Authority of New South Wales (Inspector Henson) v Kingstone Constructions Pty Limited and Brian Willis

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