WorkCover Authority of New South Wales (Inspector Campell) v Nelmac Pty Ltd

Industrial Relations Commission (NSW)|1998-05-14|Before: Marks J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Campell) v Nelmac Pty Ltd [2000] NSWIRComm 228 PROSECUTOR PARTIES : WorkCover Authority of New South Wales (Inspector Campbell) DEFENDANT Nelmac Pty Ltd FILE NUMBER: IRC602 - 603 of 1998 CORAM: Marks J CATCHWORDS : Occupational health and safety - Plea of guilty - Non application of s 51A to prior conviction for a later offence - Consideration of penalty LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) s 16(1) s 51A CASES CITED : Ferguson v Nelmac Pty Ltd (1999) 92IR 188 WorkCover Authority of NSW (Insp Piggott) v Capral Aluminiun Ltd (unrep. 14 May 1998 IRC 2265 of 1997) HEARING DATES: 10/22/1999; 10/12/2000 DATE OF JUDGMENT: 12/15/2000

DEFENDANT Mr I M Neil of counsel SOLICITORS Allen Allen & Hemsley

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matters Nos. IRC 602 and 603 of 1998 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR STEVEN CAMPBELL) v NELMAC PTY LTD Prosecutions under ss 15(1) and 16(1) of the Occupational Health & Safety Act 1983

1 By summonses Inspector Campbell of the WorkCover Authority of New South Wales has charged the defendant Nelmac Pty Ltd with two breaches of ss15(1) and 16(1) of the Occupational Health and Safety Act 1983 ("the Act"). The defendant has pleaded guilty to each of the charges and this judgment deals only with the question of penalty.

THE FACTUAL BACKGROUND 2 The parties tendered an Agreed Statement of Facts which I set out verbatim:

At all material times the Prosecutor was an Inspector duly appointed and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in the within matter.
At all material times the defendant, NELMAC PTY LTD (ACN: 004 957 724) was a company duly incorporated with registered office Twist Creek Road, Yackandandah, in the State of Victoria.
At all material times, the defendant conducted a bridge construction business in various parts of Victoria and New South Wales, operating from its premises at Twist Creek Road, Yackandandah, in the State of Victoria.
At all material times, the Roads and Traffic Authority of NSW engaged a number of companies to undertake the construction of a concrete road bridge over the Bellingen River, Pacific Highway, at Raleigh. The location was known as the Raleigh Deviation, and the bridge under construction was known as the Raleigh Bridge.
At all material times: a) The Snowy Mountains Engineering Corporation (SMEC) was engaged by the RTA under a Professional Services Contract (PSC) to undertake project design and documentation and provide site surveillance. b) The design included the Raleigh Bridge. c) A contract was awarded Baulderstone Hornibrook Engineering Pty Ltd (BHE) to undertake construction of the new bridge and the immediate approach roadworks. d) BHE offered an alternate superstructure design at the time of tender consisting of Super 'T' girders and modified headstocks and deck. The offer involved a saving in contract price of $250,000. This alternative was accepted by the RTA. e) BHE subcontracted the construction of the bridge to Nelmac Pty Ltd (Principal Nelson McIntosh). f) On the advice of BHE, Nelmac engaged Mausell Pty Ltd (Melbourne) to provide the design for the alternative Super "T" structure. g) Nelmac subcontracted the manufacture of the Super 'T' girders to CSR Humes Pty Ltd. The work is being undertaken at the Koolkan (Grafton) plant using a mould apparently purchased by CSR Humes from an associated company of Nelmac.
At all material times, the defendant, employed a number of personnel at the said bridge construction site, including, Gerard McIntosh, 23 years of age as site foreman, and Jason French, 23 years of age, as a labourer.
On the 13 February 1996, at about 5:00pm, Gerard McIntosh and Jason French had attempted to realign a span of fire bridge girders during construction of the Raleigh bridge, when the five girders fell to their sides, causing the two outer girders to fall seven metres to the ground below.
An inspection of the scene of the incident was undertaken on 19 February 1996. An inspection report was prepared and photographs taken. The inspection revealed the Raleigh Bridge would be, on completion 264 metres in length, consisting of eight spans of pre-cast girders resting on seven single column piers and two abutments.
At the time of inspection, there was one complete set of five girders erected between piers 4 and 5, and two girders erected between piers 2 and 3. Five broken and damaged girders were laying on the ground between piers 3 and 4.
The bridge construction involved the use of "Super T" girders which are constructed from pre-cast concrete and reinforcing steel bar. Each vee shaped girder consists of an open top central trough with a wide top flange. They measure approximately 33 metres long by 1405 mm high by 2030 mm wide, across the top flange and a 660 mm wide base. Each girder weighs approximately 44 tonne.
The girders either side of the middle girder are designed to allow a 3% cross fall to allow for a road camber. The middle girder is supported on a guided sliding bearing, allowing only transverse (north-south) movement, while the remaining girders are supported on free floating "pot bearing" of polished stainless steel on teflon.
The bearings are held together with transit clamps to prevent movement and each bearing is mounted upon a mortar pad. The bearings and mortar pads were crumbled and damaged.
The investigation revealed that on the day of the accident Gerard McIntosh and Jason French were attempting to realign the top of the bridge girders on span 4 of the partly built bridge.
Further, two employees of the Snowy Mountains Engineering Corporation Ltd, John Croger and Michael Mowbe, had been working on span 4, checking the concrete cover on the beams. They moved to the next span and minutes later the beams toppled.
The investigation revealed that the girders were adjusted by cutting a length of steel reinforcing bar welded to each girder at the top and using a hand winch (Telpher) and chains. Acrow props were placed underneath the girder as support. At approximately 4.50pm the five girders on span 4 fell over sideways, the two outer girders fell about seven metres to the ground, another two subsequently broke in half as they could not support their weight and the remaining girder was removed by a crane.
Precast concrete girders, called "super tee's" are made by Humes Concrete in Grafton and transported by road to the site. Cranes were then used to lift them into position between headstocks. A top and bottom "pot" bearing is located at each end of the girder, allowing free movement in all directions except the central girder which is limited to only lateral (north/south) movement. The bearings are located on approximately 20mm thick mortar pads on the headstock, leaving room to pour grout into each pedestal blockout to secure the bearing after erection. The system of work called for the beams to be grouted within 24 hours after the beam had been put in place. The next step in the construction would have been to form concrete shear keys between each girder. The five girders form a camber across their top surface.
There was a delay in grouting the girders because of concerns with inadequate concrete thickness in some of the early precast girders which had been rejected by SMEC. Several girders had been delivered to the site awaiting approval from SMEC and this approval process was delaying bridge construction. Fault has been found with some of the girders due to problems in construction of the girders by CSR Humes Pty Limited. Nelmac was allowed by BHE to erect these girders into place, which was permitted on the condition they would have to be removed if they failed later testing. The work to lift the girders into position commenced in December 1995, however the necessary final grouting and shear keys could not proceed until the girders were approved by SMEC. Nelmac was instructed by BHE in a "Hold Point" on 15 December 1995, to stop work on the girders on spans 4 & 5 entirely.
Erection of span 5 girders commenced on 15 December 1995 and span 4 girders on 21 January 1996 along with some of the girders on span 3. All the girders were temporarily braced, in accordance with BHE's specifications, issued by BHE and approved by SMEC.
Gary Girvan, Technical Manager, Baulderstone Hornibrook Pty Ltd made several observations after the incident which included, that the girders should only be erected if it is intended to grout the blockouts within 24 hours and shear keys poured within two days of girder erection together with comments concerning bracing and propping.
Chris Peacock, Resident Engineer, Snowy Mountains Engineering, reported, the primary cause of the collapse appears to him to be due to the fact that adjustments were being made to beams which were inadequately restrained to prevent lateral movement.
Following the incident, further propping of the remaining beams was undertaken. This was completed by midday on the 14 February 1996.
It is alleged that the defendant, breached section 15(1) of the Occupational Health and Safety Act on 13 February 1996, at the Raleigh Bridge construction site, Raleigh, in the State of New South Wales, being an employer did fail to provide systems of work, to wit, systems in concrete bridge construction that were safe and without risk to health, in that: a) The defendant at all material times, employed Gerard McIntosh and Jason French; b) The defendant failed to provide systems of adjusting concrete girders on the bridge, that were safe and without risk to health; c) As a result of the said failure, Gerard McIntosh and Jason French were placed at risk of injury.
It is alleged that the defendant has breached Section 16(1) of the Occupational Health and Safety Act on 13 February 1996, at the Raleigh Bridge construction site, Raleigh in the State of New South Wales, being an employer, did fail to ensure that persons not in its employment, to wit, John Croger and Michael Mowbe were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work, in that: a) The defendant at all material times, employed Gerard McIntosh and Jason French; b) The defendant failed to provide adequate bracing for concrete girders on the bridge under construction whilst undertaking realignment work upon the said concrete girders; c) as a result of the said failure, John Croger and Michael Mowbe were placed at risk of injury.
The defendant, Nelmac Pty Ltd has recorded no prior convictions since 1 January 1992.

3 On 24 May 1999 the defendant was convicted of three offences involving a breach of s15(1) of the Act and fined a total of $100,000 by the President of this Court. However, the offences with which the defendant was charged in those proceedings each occurred on 4 April 1996, which date is subsequent to the date of the offences with which I am dealing in these proceedings. 4 The prosecution and the defendant took different positions as to the precise cause of the incident which gave rise to these proceedings. It was said by the parties that the resolution of this issue would impact upon the culpability of the defendant and ultimately on the quantum of penalty. 5 The judgment of the President contains much useful background material about the defendant (Andrew James Ferguson v Nelmac Pty Ltd (1999) 92IR 188). The defendant is a family-owned company of which Nelson Douglas McIntosh is the Managing Director. Both of his sons who are qualified tradesmen work actively for the company. The defendant was incorporated in 1972 and it carried on the same family business which has operated for at least four generations. The defendant has built bridges either as a principal contractor or a sub-contractor for the Roads and Traffic Authorities in New South Wales and Victoria and for other statutory organisations in South Australia as well as carrying out work in the private sector. 6 Since 1972 the defendant has built more than 260 bridges, many of which were major projects. The defendant employs 30 permanent staff and additional contractors as needed. It owns and operates 14 cranes and other heavy plant and machinery. The work of building bridges is dangerous and there have been minimal injuries sustained by persons working on the defendant's projects over many years. One employee lost his life in the accident which was the subject of the proceedings heard by the President. 7 The defendant had previously been engaged on a number of bridge building projects using the same system of construction namely the "T" girders. 8 It was the evidence of Mr Nelson McIntosh that the defendant had, while using "T" girders, always fixed them into place at the time that they were deposited by crane on the headstock or shortly thereafter. This was the first occasion when that work was not attended to because of the direction issued by Baulderstone Hornibrook Engineering Pty Ltd (described as "BHE" in the Agreed Statement of Facts). Mr Nelson McIntosh described the process by which the beams were positioned as part of the construction of the bridge as follows: A "T" beam is lifted from its transport using a suitable crane at each end of the beam.

Once lifted from its transport, the beam hangs in an upright position so that the top of the beam is level with the bracing.

Survey marks are used to identify the correct location for placement of the beam. The beam is then lowered into its correct position on a mortar pad. This is the beam's final position as once a beam of such dimensions has been placed, there is no way in which it can be conveniently moved.

Once in position, the weight is then removed from the crane but the beam is not unhooked until cross fall at the top of the beam reaches 3% or else in accordance with the survey.

The outside beam is placed first to sit against the support. Once in position, the crane is then unhooked.

This process is repeated for each beam. Once all the beams are in place, each beam in the same span is fixed at the top flange by progressively welding a 20mm bar to a protruding reinforcement ligature from each beam and at each end.

Any necessary design camber is achieved by manoeuvring the beam on an epoxy pad between the base of the beam and the bearing top plate. The central beams usually have no camber. However, the remaining beams slant at a grade of 3% to provide a double camber on the top cross section of the deck. Pre-surveyed control points on the pedestal's headstock are used to determine the beam's correct positioning.

Mortar pads are constructed on the headstock pedestal prior to the beam being positioned but not completed, leaving room to pour grout into each of the pedestal block out to secure the bearing imbedment studs after the girders have been erected. 9 Mr Nelson McIntosh described as the effect of the directive of BHE that "….the bearings on span 4 girders were not grouted in their final position but were left sitting on partly completed mortar pads. These mortar pads had been designed on the assumption that the bearings would be grouted into final position within 24 hours after the erection of the beams. This is necessary to ensure that the beams hold them in position. The usual practice is that this grouting is carried out no more than one day after the beams are placed onto the mortar pads." 10 Mr Nelson McIntosh had been first involved in the supervision of the work on that site until 30 June 1995 when BHE required that he cease such activity as a result of a complaint made by the Construction, Forestry, Mining & Energy Union ("CFMEU"). Thereafter and relevantly for the purpose of these proceedings the foreman duty on site was taken over by Gerard McIntosh, the son of Nelson McIntosh. Gerard McIntosh is a carpenter by trade and also holds additional trade qualifications. He has worked as a foreman on bridge building projects for eight years. 11 Mr Gerard McIntosh took over as foreman in July 1995 and his brother Brian McIntosh worked with him, as did several experienced employees. 12 In an affidavit tendered in the proceedings Mr Gerard McIntosh related how the realignment process was undertaken on 13 February 1996. The general process is described in the Agreed Statement of Facts the contents of which I have previously set out. Mr Gerard McIntosh said that about an hour after the realignment process had been carried out he noticed that the beams had again moved out of alignment, rolling inwards. He then decided to grout them into place. It was at this stage that another employee warned him that the first beams had begun to collapse and he was forced to run off the deck and onto an adjacent span to avoid being struck. He said that the incident commenced because the first beam rolled inwards before falling to the ground. Its collapse triggered the collapse of the other beams because they had been braced to each other. 13 In his affidavit Mr Gerard McIntosh referred to the fact that personnel from Snowy Mountains Engineering Corporation Ltd ("SMEC") had discovered at least by 9 February 1996 that the gap between the erected girders had decreased to the point where the concrete flanges were rubbing together and that this may have suggested some defect in the bearings. On 12 February 1996 a "corrective action request" form was issued by SMEC which named the contractor as Baulderstone Hornibrook Engineering Pty Ltd. That form stated that corrective action was required to rectify a "condition adverse to quality" namely "Gap between erected girders has decreased to the point where minor spalling is occurring. This may also have implications for the bearings." The concerns of SMEC were not raised with the defendant prior to the realignment process on 13 February. Mr McIntosh said that if he had been aware that the bearings were damaged this would have influenced "greatly the decision about the process that would be implemented to realign the beams. Without doubt the fact that the bearings were unstable would have influenced the procedure adopted by us in correcting their alignment. We may have chosen to take no action at all, or at least consult with BHE engineers before attempting any realignment." 14 Mr Nelson McIntosh inspected the site on 16 February 1996. He formed the view that "the collapse had occurred because the upstream mortar pads under the bearings had collapsed due to a change in the weather and the length of time which the mortar pads had been in place and not grouted. This expansion, due to the heat and prevailing wind conditions, caused the most outer beam to move upstream which caused it to come off its position and to slip off the cross head. The beam then rolled inwards as a result of the crumbling of the mortar pad where it dropped and dragged the inside beams with it. Because each beam is braced to another by reinforcement metal tie bars, they were also pulled off their bearing. All of this occurred independently of Gerard's attempt to realign the beams. The position of the first beam on its side and not on the flange, in my view, confirms this theory." 15 In dealing with theories put forward by SMEC and BHE as to how the incident occurred Mr Nelson McIntosh said: "I disagree with the theory of the collapse put forward by SMEC and BHE. They each blame inadequate or insufficient external bracing for the attempt to realign beams of this size and length. However, the collapse occurred shortly after the realignment had been completed, and in circumstances in which it is difficult to contemplate the extent of bracing that would have been necessary to support all beams on the span. The instability of the mortar pads, which was not known to Nelmac, would have undermined any system of bracing put in place prior to the realignment." 16 It is clear on the evidence that the defendant had not previously encountered a situation where it had been compelled to defer the precise alignment of the girders after they had been put into place for such a considerable time. Accordingly, when work had previously been carried out by it, there was no question about the integrity of the bearing or the pedestal, especially if they had been mortared into place. As Mr Nelson McIntosh said, they had no established procedures for dealing with such a situation, and do not appear to have received any guidance either from BHE or SMEC. 17 A report submitted by SMEC and prepared by a Mr Bill So, an engineer queried the explanation given on behalf of the defendant. Mr So questioned whether the girders could have in fact rolled over after they had been secured in the manner described by defendant personnel. He was of the opinion that the method in which the defendant's personnel had endeavoured to stabilise the girders during the realignment process was incorrect and in fact had exerted pressure on a girder other than the one which was being realigned by reason of the tension created by the use of the chain. This created a domino effect causing all of the girders to move. He also said that "it was possible that the strong wind played a part at the critical time in this process." 18 A report prepared by Mr C Peacock, the resident SMEC engineer on site also queried the work system used by the defendant's personnel in the realignment process. He said that the use of the chain subjected the bearings to "lateral movement which they are not designed to withstand." Accordingly they had been inadequately restrained. He thought that Mr Gerard McIntosh was not sufficiently experienced for this process but commented also that "Baulderstone do not appear to have the expertise to determine whether the work system underway at the time was safe or not, having no-one on site at the time experienced in the erection of precast concrete girders." 19 A report compiled by Mr Gary Girvan, Technical Services Manager, Civil Infrastructure of Baulderstone Hornibrook Engineering said that "it appears obvious that the overriding factor contributing to the over-turning of the girders is the absence of grout in the pedestal block outs which would have locked the girders into position and ensured that bearings were completely supported in completing the mortar pads as part of the grouting process. The girders were left in this state for about four weeks, during which time girder movements due to temperature and hog as well as vibration during construction and access, would have undoubtedly resulted in some movement of the girder in relation to the bottom bearing plate and possibly the bottom bearing plate in relation to the pedestal." Mr Girvan also noted some defects in the mortar pads and the fact that some "block outs" in the headstock pedestals were out of position by up to 70mm. "This means that if the girder weight was transferred to the west, it was all being resisted by about 90mm of mortar strip on the northern edge and the reinforcement tie to girder 4 at the flange. I believe that this was a major contributor to the incident." 20 Mr Girvan also criticised the sequence and method of adjusting the girder cambers during the realignment process undertaken by the defendant. This sequence and method would have "progressively created an inbuilt turning movement in every girder - wanting to return to their previous natural state." In addition, the girders were not restrained at the bearing level following adjustment which allowed sliding to occur and movement of the girders was exacerbated by the low friction bearings which were used. 21 A report prepared by Mr Colyn Jones, Manager, Bridge Designer Projects and Mr Thomas Stewart, a concrete inspector of the Roads and Traffic Authority noted that the mortar pads on the relevant piers consisted of non-shrink grout. It probably had a high strength but would have been relatively brittle. The bearers had been attached to the girders before the girders were put in place. There was conflict as to whether the girders were correctly aligned at the time that they were originally positioned. In any event they appear to have moved further out of position after erection because they had not been sufficiently braced. They also noted that the centre of gravity of each girder was not directly over the centre of the bearing and if the girders were not braced at erection any stability may be reduced. "If the bearing top plate moves laterally relative to the bearing the girder can become unstable ie. will fall over sideways. Lateral movements in the order of 50mm would cause instability." 22 Accordingly, the girders as erected "were not very stable" because of these factors. 23 Messrs Jones and Stewart also criticised the realignment process undertaken by the defendant. They said "moving the top of the girders would tend to have distorted or broken the bearing transit clamps and then caused the bearing sliding surfaces to move and for the pot to rotate. Also, the bearing mortar pad would tend to crumble due to their relative small area and shape." That is, the movement of the girders at the top caused damage to the bearings and the bearing transit clamps which would have then allowed movement and could have caused either the mortar pad or a bearing to have crumbled particularly under one of the girders. This would have brought about a collapse of all of them. 24 Messrs Jones and Stewart criticised the lack of reference to erection procedures on the drawings and suggested a form of revised procedure. This appears to have been the responsibility of the bridge designer, named as Maunsell Pty Ltd.

CONCLUSION AS TO THE CAUSE OF THE INCIDENT 25 It seems to me that there are a number of possible causes of the incident in terms of conduct or omission of a variety of parties. I was not afforded any documentation or other evidence as to the respective areas of responsibility of the defendant, BHE, SMEC the bridge designer or any other entity having an interest of any kind in the construction process. It seems that the method by which the girders were placed in position originally and then ultimately to have been braced and effectively fixed into position was approved of by SMEC, as is clear from the report of Mr Peacock. However evidence given by both Mr Jones and Mr So was critical of this methodology. The position becomes even more clouded by an observation made by Mr Peacock about the state of the girders themselves. He said in a written report: "In a process of erecting the beams it was found that the beams had been constructed without an allowance having been made for elastic shrinkage during stress transfer. As a result of this the bearings on the beam were closer together than the pads on the headstocks." 26 Once the defendant was restrained from carrying out further work by BHE pending clarification with Humes, the manufacturer of the girders as to whether they were structurally sound, there does not appear to have been sufficient consideration given to the integrity of the girders and the bearings whilst final fixing was delayed. There is some reference in the evidence to the fact that the bearings should have been grouted in and shear keys cast at that stage pending clarification of the integrity of the girders. Furthermore, BHE and perhaps also SMEC were aware that there may have been some problems with the bearings, but this information was not seemingly conveyed to the defendant. In any event, no-one appears to have notified the bridge designer or anyone else about the method proposed by the defendant for the realignment process. Neither the defendant nor any of the other personnel from the other organisations involved in the construction project inspected the bearings. All of this may have been compounded to some extent by the fact that Mr Gerard McIntosh was in charge of the defendant's operations in place of Mr Nelson McIntosh who was undoubtedly much more experienced. Despite a number of requests by Mr Nelson McIntosh to be allowed back on the site, BHE was adamant that he had to be excluded. No attempt appears to have been made to resolve this issue with the CFMEU. It is to be sincerely hoped that industrial action of any kind would never compromise safety on a work site. 27 Some of the evidence to which I have referred has pointed to questions being raised by BHE about the integrity of the pre-stressed concrete girders manufactured by CSR Humes Pty Ltd. I should add that although not of significant relevance to these proceedings, Mr Nelson McIntosh, a bridge builder of considerable experience asserted during the course of his evidence that the girders used on the construction of the Bellingen River, Pacific Highway bridge at Raleigh, New South Wales were suspect and this has impacted upon the safety and integrity of that bridge. Although this is not a consideration material to the determination of these proceedings I shall ask the Registrar of this Court to forward a copy of this judgment and page 45 of the transcript of the proceedings to the Roads and Traffic Authority so that it may make such inquiries as it deems appropriate regarding the integrity of that bridge and its safe use by motorists. 28 Having reviewed all of the material, I am unable to come to the conclusion that the incident was solely the fault of the defendant. I am satisfied beyond a reasonable doubt that there were a number of factors at play which contributed ultimately to the incident. Whilst there is clearly an element of fault on the part of the defendant in terms of a breach of ss15 and 16 of the Act, as evidenced by its plea of guilty, the circumstances which led up to the incident and created the relevant breaches of the Act were multi-factorial including acts and omissions by and on behalf of other entities.

THE MAXIMUM PENALTY 29 It was common ground between the parties that the maximum penalty which then applied under ss 15 and 16 of the Act for each offence was $500,000. 30 Both Mr Neil and Mr Skinner submitted that s 51A of the Act applied. This is because the defendant was convicted on 24 May 1999 of three offences involving a breach of s 15(1) of the Act which occurred on 4 April 1996. 31 Section 51A is in the following terms: 51A Additional penalty for further offence against the Act (1) A Court that convicts a person of an offence (the current offence ) against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties: (a) if the current offence is an offence against section 15, 16, 17 or 18 of this Act - 2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or (b) if the current offence is any other offence against this Act - 50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section). (2) For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section. (3) This section applies even if the previous offence concerned was committed before the commencement of this section.

32 If one reads s 51A(1) of the Act it appears that what a court looks at in applying that section is whether the defendant had previously been convicted of an offence That is, it is the prior conviction rather than the prior occurrence of the offence giving rise to the conviction which triggers the application of the section. 33 However, s 51A(3) refers to "the previous offence" and as to when that was committed, albeit by reference to the commencement of operation of the section. 34 One manner of construing subs (3) is to read it as applying to a previous conviction with respect to a previous offence committed before the commencement of the section. However this interpretation appears to me to strain the language used in subs (3). If the legislature had intended such an approach to construction, it seems to me that it would have used language appropriate to such a meaning. It seems to me that it is more likely than not that subs (3) is intended to reflect a general approach that the section was intended to apply to previous offences rather than to previous convictions. Because the section contains references to both a prior conviction and a prior offence which, in my opinion, creates some obscurity in the overall meaning of the section and some ambiguity, I have had recourse to the Second Reading Speech of the Honourable J W Shaw, then Attorney-General and Minister for Industrial Relations when the WorkCover Legislation Amendment Bill was debated before the Legislature. That speech is reported in Hansard of 13 December 1995 commencing at p 4775. At 4778 the Attorney said: "In the case of second or further offences, the amendments will provide that the maximum penalty increases by half as much again, bringing the possible maximum fine for a corporation in serious cases to $750,000." 35 It seems clear that the intention as expressed by the Attorney-General was that s 51A would apply in the case of a second or further offence. It is the offence which triggers the application of the section and not the date of the conviction for that offence. 36 Accordingly, it seems to me that it is more appropriate to construe s 51A(1) as creating a trigger for a prior conviction of an offence which has occurred at a time prior to the current offence as referred to in that subsection. In adopting this approach I take into account that s 51A is contained within legislation which creates penalties punishable by the imposition of a fine and, in certain case, by imprisonment. In that s 51A has the effect of enlarging a maximum penalty otherwise applicable by a further 50%, its provisions ought in my opinion be construed strictly and any ambiguity should be resolved in favour of a defendant. 37 I am conscious that the approach to construction of s 51A which I favour is contrary to the submissions made by counsel for both the prosecution and the defendant. However neither counsel addressed the issue in any depth in written submissions and certainly neither counsel undertook any detailed analysis of the provisions of s 51A. Ordinarily I would have sought further submissions from counsel. However these proceedings have been grossly delayed. They were originally heard on 22 October 1999. At the conclusion of the hearing that day proceedings were stood over to allow the prosecution to consider calling additional evidence. The matter was left to the parties to confer as to a further hearing date which I then anticipated would either be late in 1999 or in February 2000. 38 When nothing further had been heard from the parties the matter was restored to the list on my own motion on 5 June 2000 when I was advised that the prosecution intended calling further evidence. A further hearing date was fixed for August which was subsequently vacated and the hearing concluded on 12 October 2000 when further evidence was taken. Arrangements were then made for written submissions to be prepared by counsel with a timetable concluding four weeks after availability of the transcript. 39 Having received no submissions I arranged for the matter to be relisted of my own motion on 30 November 2000 for oral submissions. Representations were made by counsel to the effect that written submissions would be made promptly and on this basis I acceded to a request that that hearing date be vacated. 40 Ultimately I received written submissions from Mr Neil on 1 December 2000 and from Mr Skinner on 10 December 2000. I should add that neither counsel addressed a particular issue which I raised specifically with them on 12 October 2000 namely whether in approaching antecedents I should take into account the defendant's prior conviction for an offence committed subsequently. 41 In view of what I regard as an inordinate delay in the completion of these proceedings, I do not intend to further delay them, by seeking any additional submissions from counsel on this or any other matter. 42 Accordingly I propose to proceed on the basis that s 51A does not apply and the maximum relevant penalty is $500,000.

THE OBJECTIVE SERIOUSNESS OF THE OFFENCES 43 Whilst it is clear that the nature and the circumstances of the work being undertaken by the defendant at the time that this incident occurred had potentially disastrous consequences for any breach of safe working conditions, I accept submissions made by both parties to the effect that the cause was multi-factorial. I have already described in some detail my conclusions as to the cause of the incident. On this basis, although the offences are serious, the quantum of the penalty should reflect the fact that there was a substantial degree of contribution by other parties.

OTHER FACTORS IN THE ASSESSMENT OF PENALTY 44 There are a number of other factors which are particular to the defendant and the circumstances of these proceedings which I propose to take into account in addition to the nature and quality of the offences and the deterrent value of any penalty fixed. These are as follows:

The defendant pleaded guilty at an early stage of the proceedings.
As found by Wright J, President in Ferguson v Nelmac Pty Ltd to which I have earlier referred, the defendant had a "good, although not perfect industrial safety record ….(including its "safety consciousness") particularly significant in the light of the nature of the industry it which it operates and the length of time in which it, and its predecessors, have been active in the industry …" (at 211). These remarks need to be qualified by the events which gave rise to these proceedings.
The environment in which the defendant carried out the work which gave rise to these proceeding was such that control over a number of the aspects of the work rested in other parties, in the manner in which I have previously described. This is especially so in connection with the design of the bracing system, and the delay in the carrying out of the work which was enforced on the defendant. In making these comments I am conscious that I have taken these factors amongst others into consideration in assessing the objective seriousness of the offences.
The defendant appears to have cooperated with those responsible for the investigation of the incident. The defendant through Mr Nelson Macintosh expressed contrition for the events surrounding the incident. 45 During the course of the proceedings on 12 October 2000 I asked counsel to address submissions specifically as to whether I should take into consideration, and if so to what extent, the fact of the offences which occurred on 4 April 1996 for which the defendant was convicted on 24 May 1999. Those offences post-dated these occurrences. Neither counsel addressed this issue in the written submissions furnished in December 2000. I shall assume that the prosecution does not wish me to take these matters into account in assessing penalty. However, the matter has been dealt with by Schmidt J in WorkCover Authority of NSW (Insp Piggott) v Capral Aluminium Ltd (unrep 14 May 1998 IRC 2265 of 1997) 14 May 1998). The authorities gathered in the judgment of Schmidt J in this Court in WorkCover Authority v Capral make it clear that offences which occur subsequent to an offence under consideration in terms of penalty for which a defendant has been convicted prior to the time of fixing a penalty for an earlier offence may only be taken into account in determining whether to mitigate any appropriate penalty, but cannot be taken into account so as to enlarge the penalty. I propose to adopt this course. The subsequent offence for which the defendant was convicted and with respect to which Wright J, President fixed a penalty was a serious one and therefore impacts upon the aggregation of the mitigating factors available to the defendant in these proceedings.

TOTALITY 46 Both parties are in agreement that the principal of totality should apply to both offences and I propose to adopt this course.

MONETARY PENALTY 47 Having regard to the nature of the offences and the milieu surrounding their occurrence, I would propose that the defendant be subjected to a total penalty for both offences of $110,000. After taking into account the mitigating factors to which I have referred I propose to reduce the total penalty by $30,000 leaving a net total penalty of $80,000 which should be split between the two offences. 48 Costs would normally follow the event. The prosecution has not sought any order for costs so I shall make no order as to costs. In many cases the WorkCover Authority of New South Wales seeks a moiety of any penalty. No such moiety has been sought in these proceedings and in the circumstances I shall not grant a moiety to the prosecutor.

ORDERS 49 I make the following orders:

The defendant is found guilty of each of the offences in each of the summonses the subject of these proceedings.
I impose a monetary penalty of $40,000 for each offence.
Liberty to apply with respect to costs.

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