NSWNSWIRComm

WorkCover Authority of New South Wales (Inspector Thomas Clark) v Ledonne Constructions Pty Limited

[2001] NSWIRComm 272

Industrial Relations Commission (NSW)|2001-07-31|Before: Boland J, Mr J

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Court

Industrial Relations Commission (NSW)

Decision date

2001-07-31

Before

Boland J, Mr J

Source

Original judgment source is linked above.

Judgment (57 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Thomas Clark) v Ledonne Constructions Pty Limited [2001] NSWIRComm 272 PROSECUTOR: WorkCover Authority of New South Wales PARTIES : DEFENDANT: Ledonne Constructions Pty Limited FILE NUMBER: IRC 3394, 3396, 3398 of 1998 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Offences under s 15 (1) and s 16 (1) of the Occupational Health and Safety Act 1983 - Death by drowning - Pleas of guilty - Objective seriousness of offences - Subjective factors - Parity and consistency - Totality - Fines imposed - Costs LEGISLATION CITED : Occupational Health and Safety Act 1983 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, (2000) 99 IR 29 Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 R v Thomson, R v Houlton (2000) 49 NSWLR 383, 115 A Crim R 104 CASES CITED : R v Winchester (1992) 58 A Crim R 345 WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 WorkCover Authority of NSW v Jabboury [2001] NSWIRComm 78 WorkCover Authority of NSW v Sydney Water Corporation Ltd [2001] NSWIRComm 240 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd [No 2] (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Lyons) v Warman International Limited (2001) 105 IR 236 HEARING DATES: 07/31/2001 DATE OF JUDGMENT: 11/02/2001

WorkCover Authority of New South Wales (Inspector Thomas Clark) v Ledonne Constructions Pty Limited - [2001] NSWIRComm 272 - NSWIRComm 2001 case summary — Zoe

[23]

The Particulars of the charge are: 1. The defendant was at all material times an employer. 2. It is alleged that the defendant has breached Section 16(1) of the Occupational Health and Safety Act 1983 on 25 June 1996 at Mount Keira Reservoir, Mount Keira, New South Wales in that being an employer, it failed to ensure that persons not in its employment, and in particular, Malcolm Dewar and John Watson, 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, and in particular: a. the defendant failed to provide or maintain systems of work to ensure the effective isolation of water at Inspection Pit No. 7 at the said site, whilst persons were carrying out work inside the inspection pit and outlet pipe, so that the work carried out at the said site was safe and without risks to health. b. the defendant failed to provide or maintain systems of work to ensure that a risk assessment was undertaken of the Mount Keira Reservoir Contract Project No. 12239 to identify any confined spaces on the project and the hazards associated with working in those confined spaces. c. the defendant failed to provide or maintain means of access to and egress from Inspection Pit No.7 at the said site, which was safe and without risks to health. d. the defendant failed to adequately supervise or monitor work carried out at the said site so as to ensure that work in confined spaces was being carried out in accordance with the requirements and procedures set out in Australian Standard AS 2865-1986 ('Safe Working in a Confined Space') called up by Clause 5 of the Occupational Health and Safety (Confined Spaces) Regulation, 1990. e. the defendant failed to ensure that persons entering confined spaces, had been provided with appropriate training and had the knowledge and skills necessary to enter confined spaces. f. the defendant failed to ensure that all persons not in it's employment working at the said site, were aware of and had read and understood the contents of 'Sydney Water's Instruction 800' regarding 'Safe Entry and Working in Confined Spaces'. 3. As a result of the defendant's failure, Malcolm Dewar drowned and John Watson was placed at risk of (sic) to his health and safety.

[24]

8 The circumstances surrounding the incident that led to these proceedings are described in the agreed statement of facts: 13. On the afternoon of 24 June, 1996, employees of Ledonne had identified two leaks when they conducted a pressure test of the water line after having constructed the concrete inspection pit (Pit No.7) and laid new pipes. One of the leaks was identified as having come from a straub coupling inside the inspection pit. The second leak, which was of more concern, was a leak coming from an underground pipe approximately five metres from the inspection pit in the location of a 45 degree bend in the watermain. 14. A discussion took place between the employees and project manager of Ledonne, Raymond Jabboury, concerning the method they would use to locate the leak and repair it. It was suggested by Rowling that they gain access into the pipe by removing the straub coupling on the spigot section in the inspection pit and then remove the plain to flange spigot section which was attached to the outlet pipe and gate valve. They could then gain access inside the pipe to establish the location of the leak and develop a method of repair. It was decided to commence the work the next day. 15. Malcolm Dewar was not at work on 24 June 1996, having been ill. On the day of the accident (25 June, 1996) Malcolm Dewar telephoned his employer to inform it that he would be late in attending work that day. About 8.15am that day, Michael Kenney (a mechanical fitter employed by A.W.T. as a leading hand) and John Watson (a fitter employed by Waycon) gained access to the inspection pit by placing their foot on the gate valve and jumping down to the floor of the pit. The men were to remove the straub coupling on the spigot section and then remove the plain to flange spigot section. Realising they had the wrong size spanners, both exited the pit and went to the Pump Station at Mount Keira (Located at Millbrook Estate approximately a 5 minute drive from the reservoir site) to obtain the correct equipment. Whilst at the Pump Station, Kenney informed Watson that Ledonne employees were ready at the reservoir site and requested him to return to the inspection pit with the tools and remove the straub coupling and plain to flange spigot section. 17. At about 9am, Dewar arrived for work at the Mount Keira Pump Station on the Millbrook Estate. Watson approached Dewar at the Pump Station and requested a lift to the reservoir site and asked Dewar to assist him in the inspection pit. 18.When they arrived at the reservoir site, both Dewar and Watson entered the inspection pit by stepping on the top of the gate valve. The bypass elbow (a pressure release valve to enable operation of the main gate valve) had been disconnected from the plain to flange spigot section. Watson removed the straub coupling and then with the assistance of Dewar, both men removed the flange bolts attached to the spigot section and gate valve. They left two bolts in position at ten o'clock and two o'clock on the valve until an excavator could assist in pulling the spigot section out of the pit. 19. Approximately 5 metres from where they were working in the pit, Mark McCarron (a pipe layer machine operator employed by Ledonne) was operating an excavator with a hydraulic hammer attachment, hammering the top of the anchor of the 45-degree bend. Dewar climbed out of the pit by climbing on the gate valve and asked McCarron to remove the spigot section from the pit. A sling was attached to the spigot inside the pit and McCarron lifted the plain to flange spigot out of the pit using the excavator. Watson climbed out of the pit by climbing on the gate valve and removed the D shackle and sling off the spigot. Watson then left the inspection pit area for a short time. 20. After removal of the spigot, Geoff Rowling entered the outlet pipe by climbing through the pipe a distance of about two metres. He was inside the pipe for approximately 2 minutes inspecting a rubber ring between connecting pipes to see if it was causing the leak. During this time, Dewar was standing on the floor of the inspection pit. Rowling exited the pipe and Dewar then entered the outlet pipe whilst Rowling remained on the floor of the inspection pit. Dewar had been inside the pipe for about two minutes, when the water pressure caused the gate valve and flange connector assembly (which weighed approximately 840 Kgs) to break away from the inlet pipe. The inspection pit flooded with water in approximately 10 seconds and Rowling floated to the surface of the pit where he shouted for help. 21.Dewar was not wearing a safety harness or any other safety equipment at the time and was forced further into the pipe by the pressure of the water.

[26]

Immediately after the accident employees of Ledonne and Waycon attempted to isolate the water running into the pit and outlet pipe but lacked instruction on how to do so. An employee of SWC arrived on site some 15 minutes after the accident and was able to stop the flow of water. 2) No means of safely isolating the water prior to commencing work in the confined space of the pit and outlet pipe was utilized. 3) There was no access ladder for persons to enter the pit. 4) The 500mm x 450mm diameter pipe connector was attached to the gate valve by means of bolts and the other end of the connector (although not fitted) is connected by means of a rubber type seal. No seal was located at the time of inspection of the accident scene by Inspector Clark. 5) No system was implemented by SWC, AWT, Ledonne or Raymond Jabboury to ensure that persons having cause to enter the water main had received appropriate training and held the necessary certification to carry out work in confined spaces. The contract for the project provided that it was Ledonne's responsibility to provide equipment, training, personnel and documentation necessary to satisfy the safety requirements set out in the contract. 6) Prior to the events of 25 June 1996 no inquiry was made by Ledonne of its employees or contractor's employees at the reservoir site concerning their training in confined spaces. Investigations revealed that Malcolm Dewar had received such training, Geoffrey Rowling had done "some confined space training" about two years prior to the accident but he did not complete the training and he was not aware of what constituted a confined space, John Watson and Raymond Jabboury had no confined space training. 7) The factors contributing to the accident included: a. Flaws in the procedure to isolate water at the reservoir site and the absence on site of any person with the necessary knowledge to isolate the water. b. The rubber ring joint joining the inlet pipe to the flanged connector was designed to join the pipe work and not to carry a load along the longitudinal axis of the pipeline. c. SWC, AWT, Ledonne and Jabboury failed to comply with the requirements of the Occupational Health and Safety (Confined Spaces) Regulation 1990 and Australian Standard AS 2865-1986 cited by the Regulation. d. The Contract for the project did not identify the areas of the reservoir site that would be classified as a confined space. e. Despite written instructions, no system of audit was in place to ensure that those instructions were carried out. No competent person(s) was nominated by SWC to ensure the procedures were reviewed and approved to ensure the level of safety required. No audit was carried out to ensure that the contractors and their employees had received the relevant training and skills to carry out work in confined spaces. f. There was no proper access to or egress from the inspection pit. g. Adequate supervision was not provided by SWC, AWT or Ledonne to ensure a safe system was in place when employees were required to carry out work in confined spaces. There was no work contracted to Ledonne requiring Ledonne's employees to work within confined spaces. The Verdict 10 After reviewing the agreed facts and in light of the charges and the particulars thereof, I am satisfied that the offences have been proven. The pleas of guilty by the defendant were properly made and I enter verdicts accordingly.

[29]

Ledonne is a family business engaged in pipe laying and sewerage work. 2) Ledonne contracted Mr Jabboury to manage the project of constructing the booster station at Mount Keira and relied on Mr Jabboury to ensure the safety of employees. Mr Ledonne was not on site at the time of the accident. 3) The "safety protocol" relied upon by Ledonne was based on the notion that "if you had good men who are experienced and who are directed properly then they would not injure themselves". 4) Since the accident Ledonne has introduced new safety measures including: work method statements; safety induction programs; an incident management plan; a job safety analysis; pre-start safety meetings; operator safety checklists; safety procedures relating to working in confined space; safety training programs. 5) The death of Mr Dewar came as a great shock and Mr Ledonne was still suffering from that shock. 6) Mr Ledonne agreed in cross-examination that Mr Jabboury should have known what were the safety requirements for working in confined spaces but Mr Ledonne did not know whether Mr Jabboury had that knowledge. 7) Mr Ledonne agreed in cross-examination that Mr Jabboury had not had any confined space training. 8) Mr Ledonne agreed in cross-examination that an inspection pit "could be a confined space if the valve was removed from the pipe but the line was live with water". 9) Mr Ledonne did not expect that his employees would be involved in working in confined spaces on the Mount Keira project. 10) Mr Ledonne could not explain why one of his employees, Mr Rowling, would have proposed that in order to fix the leaking pipe that he crawl inside the pipe. Submissions for the prosecution 13 Mr J J Millar of counsel appeared for the prosecutor. It was Mr Millar's submission that despite the fact that Ledonne had sub-contracted AWT to do certain work on the project, Ledonne could not transfer its responsibilities regarding safety to AWT. It was submitted that it was inevitable that at some point in the project, workers would be required to work in confined spaces. Despite that, the defendant put in charge of the project a person who had no confined space training at all. Mr Millar submitted that it was a serious failure on the defendant's part to appoint a project manager who lacked the necessary training. Moreover, it was submitted, no enquiry was made of Mr Jabboury as to whether he had undertaken confined space training.

[37]

20 It was submitted for the defendant that no attention was given to the safety requirements for working in confined spaces because there was no expectation that employees or other persons would be required to work in confined spaces. That employees and other persons might work in an inspection pit in circumstances where it could be regarded as a confined space, or enter a water main pipe during the course of work on the project and become subject to risks was, in my opinion, entirely foreseeable, not only because of the general nature of the work being carried out by the defendant of laying pipes, constructing pits and connecting valves and fittings but also in the manner described by the Court in WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78, as follows: … A leak had developed in the pipe near the Inspection Pit; it was the defendant's responsibility, as part of his undertaking, to have the leak repaired. The defendant had a concern about ensuring the seal where the leak had occurred was made good. He listened to advice from either Mr McDonald on the defendant's evidence, or Mr Rowling on Mr Rowling's evidence, about how the leak might be repaired and, at least in the defendant's mind, had not discounted the idea of someone going into the outlet pipe to ensure the seal had been made good. Indeed, he thought it was a good idea. The only way to do that would be to enter the outlet pipe through the entrance to it in the Pit, once the straub coupling and spigot valve connector had been removed. The defendant did indicate, in the presence of Mr McDonald and Mr Rowling, that he wanted the concrete cleared from around the leaking pipe but, critically, he did not go on to give instructions that there was to be no attempt to enter the outlet pipe to check on the seal where the leak occurred, or alternatively, did not make it clear to Mr McDonald or Mr Rowling that before entering the Pit and the outlet pipe, there were extensive safety precautions that had to be undertaken. 27 Even if I accept the defendant's evidence that he was not aware that anyone would seek to enter the outlet pipe on 25 June 1996 and that his expectation was that the work to be done involved clearing the concrete from the leaking pipe, the inference I am able to draw from the evidence is that Mr Rowling was left with the reasonable impression that either there was no objection to the proposal, or that there was tacit approval of the proposal, that as part of the procedure for repairing the leak, there should be an internal inspection of the pipe to check on whether the seal had been made good and that he proceeded to embark on that course of action the following day. The alternative inference that may be drawn from the evidence is that the defendant was aware that Mr Rowling intended to do what he proposed, that is, to enter the pipe to apply soap to the rubber ring and either expressly endorsed it or acquiesced in the proposal.

[38]

28 On the basis of either inference the evidence shows, in my opinion, that a risk arose from the conduct of the defendant's undertaking by virtue of the fact that in repairing the leaking pipe, persons not employed by the defendant entered Inspection Pit No. 7 and the outlet pipe leading from it in circumstances where there was a risk of serious injury or death. I find that, on the basis of the first inference I referred to, the relevant detriment to safety was the presence of persons, not employed by the defendant, in the Inspection Pit and outlet pipe in circumstances where there was a risk of serious injury or death caused by inundation. The other risk to safety arose out of the fact that the Inspection Pit was 3 metres deep and that there was no ladder in the Pit to assist in gaining access to or egress from the Pit. In the absence of a ladder there was a risk that persons may fall while getting into or out of the Pit. 29 The fact that the defendant gave instructions on 24 June that the work to be done the following day was to clear the concrete from around the leaking pipe, did not carry with it an unambiguous implication that no attempt should be made to enter the outlet pipe. Mr Rowling obviously saw the removal of the concrete and entry into the pipe as part of the one operation to repair the leak. Absent any instruction not to enter the pipe there was no work-related reason why the straub coupling and spigot valve connector could not have been removed and an internal inspection carried out of the site of the leak while the concrete was being cleared. Of course, what Mr Rowling overlooked, as did the defendant, were the risks associated with doing so. In fact, the defendant candidly admitted in his evidence that, following the discussion with Mr Rowling on 24 June about the prospects of an internal inspection, he gave no further thought to questions of safety; he gave no thought to the prospect of Mr Rowling and others doing what they did in entering the Inspection Pit and outlet pipe and being exposed to the risk of inundation by whatever means that might occur. Given his conversation with Mr Rowling it was reasonably foreseeable on the defendant's part that, in the absence of an express direction to the contrary, Mr Rowling might well do what he proposed and that if he did, he would be at risk unless measures were taken to ensure the safety of Mr Rowling and others.

[40]

22 I note the defendant's previous good record, the hazardous nature of the industry in which the defendant operates and the fact that the defendant has taken measures to improve its occupational health and safety regime. However, both general and specific deterrence should feature in the assessment of penalty in this matter: Capral Aluminium at [73]- [74]. In my opinion, there is a clear need in this case to compel the defendant's attention to "occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388. Moreover, as Walton J, Vice President observed in WorkCover Authority of New South Wales (Inspector Lyons) v Warman International Limited (2001) 105 IR 236 at [80]: 80 In my view, and having regard to the principles of sentencing in Capral , specific deterrence should feature in the assessment of penalty in this matter. The defendant has conceded that it was unaware of, and had taken no steps to, assess the risks to safety of employees engaged in the process giving rise to the incident. It is necessary, in these circumstances, to ensure a sufficient level of diligence in the defendant searching for, identifying and removing risks to safety (even where the work to be undertaken does not form part of the defendant's ordinary work practices). This will be so in a hazardous industry, although regard needs to be paid, as noted in Capral , to the particular circumstances of the offence and the offender. 23 In considering the subjective factors, Ledonne has entered pleas of guilty (although I note, not early pleas) and based on utilitarian considerations is entitled to a discount on the sentence in the range of 10 to 25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104. The defendant is also entitled to have taken into account the measures taken to improve safety after the incident on 25 June 1996 and the good safety record up to the time of the incident.

[48]

62 It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and IRC98/1106, 4 February 2000 at 103): Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen " where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 … 63 When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said, at 371: It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: "The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty." 64 In Channon v The Queen (1978) 20 ALR 1 at 18, Deane J observed: In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances. 65 As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10.