WorkCover Authority of New South Wales (Inspector Dall) v Litchfield Roofing Pty Ltd; Joseph Andrew Litchfield; J & T Michilis Pty Ltd

WorkCover Authority of New South Wales (Inspector Dall) v Litchfield Roofing Pty Ltd; Joseph Andrew Litchfield; J & T Michilis Pty Ltd - [2003] NSWIRComm 240 - NSWIRComm 1994 case summary — Zoe

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IRC Matter No 7014/1999 The offence alleged under s15(1) of the Occupational Health and Safety Act 1983 states that: On 15 December 1997, at a building construction site at 6 Heron Road, Kooragang Island, in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Gavin Shearer, William Grist, Damien Mowle and Todd Gibson, in undertaking wall cladding work upon the said building under construction. The particulars of the charge are: a) The defendant employed a number of personnel at the said construction site. b) The defendant had been sub-contracted by Michilis Pty Ltd to undertake wall-cladding with metal sheeting of the said building under construction. c) The defendant failed to provide systems of work for the cladding on the said walls that were safe and without risk to health. d) The defendant failed to make arrangements for the use of plant, to wit, mobile scaffolding to ensure that such mobile scaffolding could not contact the live 33,000 volt electrical cables. e) The defendant failed to provide plant, to wit, fixed scaffolding to allow for the safe application of metal sheeting to the external wall of the said building under construction. f) The defendant failed to provide such training and instruction as may be necessary for employees undertaking the application of metal sheeting to the external wall of the said building under construction, adjacent to live electrical power lines. g) As a result of the said failures, Gavin Shearer suffered fatal injuries and Damien Mowle, Todd Gibson and William Grist suffered injuries. IRC Matter No 7016/1999 The offence alleged under s50(1) of the Occupational Health and Safety Act 1983 states that: On 15 December 1997, at a building construction site, at 6 Heron Road, Kooragang Island, in the State of New South Wales, the defendant, being a director of a corporation, to wit, Litchfield Roofing Pty Ltd, which contravened whether by act or omission, s15(1) of the Occupational Health and Safety Act 1983 , at that place and date, in that it being an employer, it failed to ensure the health, safety and welfare at work of all its employees and in particular, Gavin Shearer, William Grist, Damien Mowle and Todd Gibson, whilst undertaking wall-cladding work upon the said building under construction, is deemed to have contravened the same section pursuant to s50(1) of the Occupational Health and Safety Act 1983, in that: a) Litchfield Roofing Pty Ltd was a corporation, duly incorporated. b) Joseph Andrew Litchfield, the defendant, was a director of a corporation, to wit, Litchfield Roofing Pty Ltd. c) Litchfield Roofing Pty Ltd employed a number of personnel at the said construction site. d) Litchfield Roofing Pty Ltd had contracted to Michilis Pty Ltd to undertake the wall-cladding with metal sheeting of the said building under construction. e) Litchfield Roofing Pty Ltd failed to provide systems of work for the cladding on the said walls that were safe and without risk to health. f) Litchfield Roofing Pty Ltd failed to make arrangements for the use of plant, to wit, mobile scaffolding to ensure that such mobile scaffolding could not contact the live 33,000 volt electrical cables. g) Litchfield Roofing Pty Ltd failed to provide plant, to wit, fixed scaffolding to allow for the safe application of metal sheeting to the external wall of the said building under construction. h) Litchfield Roofing Pty Ltd failed to provide such training and instruction as may be necessary for employees undertaking the application of metal sheeting to the external wall of the said building under construction, adjacent to live electrical power lines. i) As a result of the said failures, Gavin Shearer suffered fatal injuries and Damien Mowle, Todd Gibson and William Grist suffered injuries. IRC Matter No 7015/1999 The offence alleged under s16(1) of the Occupational Health and Safety Act 1983 states that: On 15 December 1997, at a building construction site at 6 Heron Road, Kooragang Island, in the State of New South Wales, the defendant, being an employer, failed to ensure that persons not in its employment, 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. The particulars of the charge are: a) The defendant sub-contracted Litchfield Roofing Pty Ltd to undertake the cladding of the external walls of the said building with metal sheeting. b) The defendant employed personnel at the said construction site. c) The defendant failed to supervise the activities of sub-contractors undertaking the cladding of external walls with metal sheeting at the said site. d) The defendant failed to identify the dangers of persons working with mobile scaffolding in close proximity to overhead power lines energised to 33,000 volts. e) The defendant failed to ensure that adequate plant, in particular scaffolding, was utilised by men undertaking the cladding work of the external wall on the said building under construction to ensure scaffolding could not topple and contact the live electrical cables. f) As a result of the said failures, Gavin Shearer suffered fatal injuries and Damien Mowle, Todd Gibson and William Grist suffered injuries.

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At all material times J & T Michilis Pty Ltd had contracted with Toll Holdings Ltd to undertake the construction of a steel-framed, pre-cast, concrete building at No.6 Heron Road, Kooragang Island, near Newcastle ('the site') 6. At all material times, Litchfield Roofing Pty Ltd had been sub-contracted by Michilis Pty Ltd to undertake the cladding of the external wall sections of the building with metal sheeting at the site. 7. At all material times, Litchfield Roofing Pty Ltd employed a number of personnel at the said construction site, including: a) Gavin Shearer, 19 years of age, third year apprentice roof plumber. b) Damien Mowle, 25 years of age, an apprentice roof plumber. c) Todd Gibson, 26 years of age, an apprentice roof plumber. d) William Grist, 44 years of age, a foreman. 8. On the 15 December 1997, at about 12.30pm, William Grist, Damien Mowle, Todd Gibson and Gavin Shearer were pushing a mobile scaffolding on the south western corner of the building when it has fallen away from the building and came close to or contacted with the live 33,000 volt electrical cables attached to power poles on the street adjacent to the building construction. As a result, Gavin Shearer received fatal electrical shock injuries and William Grist, Damien Mowle and Todd Gibson received burns and other electric shock injuries. 9. In company with his supervisor, Mr William Grist, and co-workers, Mr Damien Mowle and Mr Todd Gibson, Mr Shearer began work for the first time at the site at approximately 6.30am on the morning of the accident. Work was being conducted with the aid of a mobile aluminium scaffold with wheels. The scaffold was supplied by a local hire company to allow access to the top wall section and fixing of wall sheeting. The scaffold was approximately 8.900 metres in height with base dimensions of approximately 3.190 m x 1.300m and was progressively being moved along the southern side of the building in an easterly direction as cladding work progressed. The scaffold was erected by Mr Shearer and co-workers on the morning of the accident. Mr Gibson was the only certified scaffolder involved in this process. (Certificate number 68541). His certificate was in advanced scaffolding and was the highest grade of qualification available for scaffolding at the time. Mr Gibson had held such certificate since at least June 1996 and he had been working with the erection of scaffolding at least since that time. 10. After successfully cladding a length of approximately 12 metres from the south-western corner, the scaffold was being moved past one of a number of concrete columns on the same side of the building. This column had an abutment, which extended 900mm out from the base of the external wall. As the scaffold was moved past the concrete column, the base section of scaffold which was supported on caster type wheels, began to sink into loose sandy type fill which was between ground level concrete pads and the perimeter fencing. This fence consisted of chain wire mesh, topped with barbed wire and pipe construction approximately 2.200 metres in height. The sinking of the base of the scaffold caused the top of the scaffolding to lean away from the building wall in a southerly direction towards adjacent overhead electrical power lines, which were energised at a potential of 33,000 volts. 11. As Mr Shearer and co-workers attempted unsuccessfully to stabilise the falling scaffold, they received severe electrical shock injuries and subsequent burns as electrical current passed from the overhead power line through the scaffold and their bodies to the earth. 12. A report provided by Energy Australia indicated that contact or near approach occurred between the top of the scaffold and the adjacent overhead power lines. 13. Following the accident, attempts were made to administer first aid treatment to the injured persons. Ambulance officers and paramedics attended the scene a short time later, and subsequently administered further treatment to Mr Shearer without success. His life was pronounced extinct by Dr Brian Masters from Royal Newcastle Hospital at 5.25pm on the day. Mr Mowle, Mr Gibson and Mr Grist were initially transported to the Mater Hospital, then transferred to the burns unit at John Hunter Hospital where they remained for further treatment. Mr Gibson had two toes on his right foot amputated as a result of the accident. 14. Mr William Grist spent approximately three months in hospital, then further recovery at home for a period of approximately ten weeks. Mr Grist returned to work three hours a day on a rehabilitation program for one month then eight hours on selected duties. 15. Mr Gibson spent three weeks in hospital and a further four months off work. Mr Gibson returned to work on a rehabilitation program for four hours a day on selected duties. 16. Mr Mowle spent one night in hospital and was off work for three and a half months. Mr Mowle returned to work for four hours a day on a rehabilitation program for approximately six weeks. 17. The building under construction at the site was approximately 73 metres in length, 28 metres in width with a wall height of 8.4 metres. The roof gable extended above this at an angle of approximately 35 degrees. The scaffolding being used by the workmen at the time of the accident was approximately 8.9 metres in height with base dimensions of approximately 3.190 metres by 1.3 metres. A factual inspection report was prepared by Inspector Dall on 12 July 1999, a copy of which is annexed and marked with the letter "A". Fourteen colour photographs were also taken by Inspector Dall, copies of which are annexed and marked with the letter "B". 18. The system employed to undertake the work required manually moving the scaffold along the side of the building as cladding work progressed, but did not include any means of securing the scaffold as to prevent it from toppling over during this process. When work was conducted from the scaffold the system of work utilised included the following to prevent it from falling: · Outriggers attached to the scaffold on the southern side. · Brakes on. · Scaffold tied to the top of the building by rope. · Sections of 18 millimetre plywood under the wheels.

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The supporting ground surface consisted of sandy type fill to a depth of approximately 600mm which was in the path of the intended scaffold movement, as were the sections of a number of concrete pads also at ground level and concrete columns which formed an integral part of the building. The distance between the top perimeter of the scaffold and the nearest overhead power line was approximately 3.220m when the task of moving the scaffold around the concrete column was undertaken. 20. The falling scaffold came to rest on top of the adjacent perimeter fence and two vehicles parked on the roadway nearby. Reports provided by Energy Australia indicate the incident initiated a trip out of the electrical power lines, which isolated electrical energy to them from a remote location as per the design intention of the installed electrical protection equipment. The electrical power lines also sustained damage as a result of the incident, as did other electrical equipment in use at the site. 21. Mr Grist, the supervisor, had no formal supervisory training, no formal scaffolding qualifications or training in risk management and in particular the danger of working in close proximity to energised overhead power lines. Mr Grist was the only supervisor of Litchfield Roofing Pty Ltd on site at the time of the accident. 22. Mr Joseph Litchfield, a director of Litchfield Roofing Pty Ltd, was made aware of concerns regarding the erection of aluminium scaffolding in close proximity to energised overhead power lines by Mr Gibson. Mr Litchfield failed to act on concerns presented to him prior to work commencing at the site. 23. The work practice had been discussed by Mr Joseph Litchfield with Mr Grist and Mr Gibson on 8 December 1997. On 9 December 1997 following that discussion Mr Joseph Litchfield prepared a safe work method statement ('method statement'). The method statement was given to each of Mr Gibson, Mr Grist, Mr Mowle and Mr Shearer to read and to sign (which each of them did) on 15 December 1997.

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14 Mr Litchfield makes no mention of any conversation involving Mr Michilis. Mr Litchfield deposes that the purpose of discussions between him and Mr Angelozzi on behalf of Michilis was to raise with Mr Angelozzi certain aspects of the work to be undertaken. In Mr Litchfield's affidavit he details discussions with his employees about the work to be done and the need to be mindful of the power lines on the southern elevation if the cladding they were intending to put in place became difficult to handle if there was any high wind. Mr Litchfield details the conversation with his employees as follows: On 8 December 1997 Bill Grist, Todd Gibson and I, met at the site and had a conversation in which we formulated the work method for the job. The conversation was to the following effect: Grist: I think the roof will need to be sheeted in two sheet lengths and lapped half way down. One length of 16 metres would be too difficult to handle considering the wind, and the road and power lines adjacent. Litchfield: But the client would normally expect the sheeting to be one sheet. However, I think you're right on this point. I'll see if I can get Michilis to agree. What about installation? I was thinking the best way would be to use a roof ladder and have the two men on the roof wearing harnesses, one man on a scaffold tower at the edge of the building and one man on the ground to tie on the sheeting. This can then be manually hoisted up to the roof by rope one at a time. The scaffold can be moved along and that way the scaffold provides access to the roof ladder and both can be moved along as work progresses. The ground on the side we operate from will need to be flat to provide easy use of the scaffold. The scaffold also provides a work platform to install wall cladding to the north and south elevations. The east and west elevations can be clad from a boom lift. That sounds like the best approach to me. But I'm wondering about those power lines on the southern elevation. The sheeting could come in contact with that if high wind forces it out of your hands. I think the distance from the lines to the edge of the building would be about five metres.

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63 The need for a rigorous approach and the proper application of the provisions of s10 to the offences under the Act is reinforced in Profab as follows: [24] Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to 'any other matter which the court considers it proper to consider.' [25] The extent of reasons for decision that a judge is required to give varies. For example as observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 464 at 478: The extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided ( see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-273 per Mahoney JA and at 280-281 per McHugh JA and Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). In sentencing, the purpose of reasons is to make clear why the particular offence warrants the sentence imposed and it is not necessary to give detailed reasons as to all of the factors and circumstances which led to a particular conclusion: see J Robins & Sons Pty Ltd v WorkCover Authority (NSW) (1998) 83 IR 338 at 340. [26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s556A (cf s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission.

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73 In relation to the need for a firm level ground surface for the purposes of the mobile scaffold Mr Litchfield deposes to a conversation that he had with Mr Vince Angelozzi, the site foreman for Michilis on or about 8 December 1997 as follows: Litchfield: Vince, we've worked out our approach to the roofing, but we will only be able to use 8.5 metre lengths with a join in the middle because of the difficulty in handling. We will also need to make sure that the ground along the edge of the building is level and firm so as to enable us to move the scaffolding along. Angelozzi: Check with John Ryan (Michilis manager) about the sheets. I will get the ground fixed up for you. The meeting then finished. This was the first time that I had met Vince Angelozzi. When I inspected the site on 8 December 1997 the ground adjacent to the walls which were to be clad was very uneven and it would have been impossible to erect scaffolding on it let alone move mobile scaffolding. This is not unusual on a building site and it was to that condition that I directed Vince Angelozzi's attention. 74 I have already detailed the Safe Work Method Statement prepared by the corporate defendant Litchfield Roofing Pty Ltd in relation to the work to be undertaken at the Kooragang Island construction site in December 1997. In relation to that Safe Work Method Statement which identified the risk in relation to the mobile scaffolding and the need for a firm level surface, that Safe Work Method Statement was discussed and agreed to by the four employees undertaking the work on behalf of Litchfield Roofing Pty Ltd on 15 December 1997. Annexed to Mr Litchfield's affidavit and identified as Section C of the Safe Work Method Statement is a training schedule checklist document. That is a page that says: I hereby agree that I have read and understand this Safe Work Method Plan document and that I will comply with the requirements contained within and by instruction given by my supervisor in order to fulfil my obligations under statutory occupational health and safety regulations. Project: TNT Bulk storage facility, Kooragang Island: Job number 3241.

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76 On the facts before me, it was clear that Mr Joseph Litchfield was never intended to be part of the workforce of Litchfield employees actually working on the site at Kooragang Island erecting the cladding to the building in question. That was to be undertaken by the four employees named, supervised on a direct basis by Mr Grist. Mr Grist had the ability to contact Mr Joseph Litchfield in the event of any problems arising on site. True it is that Mr Litchfield was able to drop into the site should he need to or should he wish to at any time. In relation to that aspect of his responsibilities Mr Litchfield deposes as follows: On 15 December 1997 I had a meeting at Incitec Fertilizers Ltd in Greenleaf Road Kooragang Island at about 7:00am. As I was driving past the site I saw Bill Grist crossing the road adjacent to the TNT site. I stopped my vehicle and said 'Hello, Bill. I can't stop. I've got a meeting to go to. I'll call in on my way back from Incitec.' At approximately 9:30am on the same morning I returned to the site and I had a conversation in words to the following effect with Bill Grist: Litchfield: Gidday, Bill. How's it going? Grist: Okay, Joe. Can you check for me to see if those two brackets I need have been delivered to the depot yet? Litchfield: They haven't yet Bill. You should call Speedway Sheetmetal to see if they have finalised them yet. Grist: I will do that. What about the Alsynite for the wall? When should that be delivered? Litchfield: I'm not sure. I will check for you. Grist: I've had to call Aluminium Scaffolds for some additional scaffolding and that hasn't arrived yet. Once that's here we will be able to complete it and commence the cladding. I could see from my position that at this time no cladding had been installed to either the roof or the sides of the building. I saw that the workers were still in the process of erecting the scaffolding. I then left the site. This visit to the site was not routine and indeed only occurred because I happened to be in the neighbourhood at the time and felt like I should just say hello to the crew on my way past. I did not conduct an inspection of the site. When I asked Bill Grist if everything was going alright I fully expected that if there had been any difficulties with the equipment or the site that Bill would have notified me of it at the time. Bill Grist had been supplied by me with a mobile telephone for use in contacting either me or suppliers or for that matter making any other communication which he needed to facilitate the job. I regarded Bill as an experienced leading hand/foreman and expected that if there had been any difficulties encountered in the carrying out of the work or in the site conditions, particularly in the areas that we had discussed in our meeting on 8 December 1997, that he would have contacted me or at the very least contacted the head contractor on site.

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82 In that matter, somewhat on all fours with the matter before me, his Honour exercised the discretion available to him and applied the provisions of s10 of the Crimes (Sentencing Procedure) Act by dismissing the charge against the personal defendant in that matter, Mr Green. In that matter, which also involved a worksite accident in relation to scaffolding, Mr Green was the director of a relatively small to modest company engaged in the business of scaffolding. He had been actually engaged in working on the site on the day the accident occurred but, in circumstances as detailed by his Honour in his judgment, had been called away for a brief period to deal with another problem on site when the accident giving rise to the prosecution arose. In coming to the view that he did in relation to the application of s10 in that matter before him, his Honour had this to say in para [19]: …I have to say I have reached that conclusion with some hesitation but, on balance, and consistent with the terms of that section, I consider in the circumstances it would be inexpedient to convict him and to impose a fine. I regard the fine against the corporate defendant as sufficient to meet the ends of justice for the identified risks to safety in the incident here concerning Mr Sales on 13 August 1998. In R v Rushby (1977) 1 NSWLR 594 at 598, the balancing process involved in sentencing was dealt with by Street CJ by reference to what the Court of Appeal in New Zealand said in R v Radich (1954) NZLR 86 at 87 as follows: On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. Mr Green has had no prior convictions of any nature and during evidence he presented as a sincere, hardworking tradesman who was endeavouring to build and maintain a small business in difficult commercial circumstances. In a sense, his brief departure from the scene of the incident at the time it occurred to attend a pressing problem elsewhere on the site was no excuse for the safety detriment which thereby arose but, I am prepared to accept, it was a causal omission which should not result in a criminal record being created against Mr Green. I think to do so, in the circumstances where the corporate defendant is to be convicted and fined accordingly, would be neither suitable nor judicious.

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85 On any view, this accident has affected Mr Litchfield profoundly. There is nothing to suggest that, as he expressed in his affidavit, that he has been anything other than profoundly affected by the accident, particularly the death of Mr Shearer. As he deposes: I remember vividly seeing Gavin laying there where he was. I had never experienced death at close quarters like this before. I have never forgotten the feeling that I had on that day and there is seldom a day goes by that I do not think of the accident, of Gavin and the feelings which I experienced of overwhelming sorrow and regret that such an accident had occurred. Some days after the accident my father David Litchfield, my brother Tim Litchfield and I travelled to Raymond Terrace north of Newcastle where Gavin's parents lived and met and spoke with them at their family home. They were of course most distraught but were courteous to my brother, my father and to me and appreciated our visit on the day at which time we paid our respects to them and attempted to comfort them in respect of their tragic loss. Both myself, my father David and my brother Tim attended the funeral service for Gavin and the company closed its office and shut down all jobs so that the entire workforce of the company could attend the funeral service. I have not maintained any contact with Gavin's family since that time. I was distressed at the time by the effect of his loss on the family and thought that it was important to reserve their privacy and allow them to grieve without providing any further reminders of Gavin's death. I dwelt heavily on the accident. I had always taken great pride in my work and in the company's and my own safety record and I was devastated by the loss to Gavin's family and aggrieved that the accident had occurred when myself and the company were so safety conscious. In the weeks following the accident I experienced interrupted sleep patterns as I constantly revisited the events of the accident. Additionally I recall that I was particularly affected at family celebrations on a wedding anniversary and at Christmas both of which occurred shortly after the accident. Much of the sadness and anguish that I felt at the time was internalised and I was deeply affected by the accident. I had met Gavin's father for the first time only after his death and I had felt terrible shaking his hand in such circumstances thinking how I would feel if it was my son who had died. Since the accident I now have a young son and I am constantly reminded when watching him grow up of the loss to Gavin's family. I recall Gavin's mother making some critical comments in the local press at the time of the accident and even though I considered there were some mitigating circumstances surrounding the tragic accident I viewed her comments as quite reasonable having regard to the great personal loss suffered by her.

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