WorkCover Authority of New South Wales (Inspector Mulder) v Roads and Traffic Authority of New South Wales

Industrial Relations Commission (NSW)|2001-02-23|Before: Marks J, Ms P, Wright J

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Mulder) v Roads and Traffic Authority of New South Wales [2001] NSWIRComm 23 PROSECUTOR WorkCover Authority of New South Wales (Inspector Mulder) PARTIES : DEFENDANT Roads and Traffic Authority of New South Wales FILE NUMBER: IRC 1632 of 1998 CORAM: Marks J CATCHWORDS : Plea of guilty - Assessment of penalty - Comparative sentences where another party already sentenced. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 17(1)(a) CASES CITED : Ferguson v Nelmac Pty Ltd (1999) 92 IR HEARING DATES: 03/30/2000; 02/08/2001 DATE OF JUDGMENT: 02/23/2001

LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson of counsel SOLICITORS Roads and Traffic Authority of NSW

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MULDER) v ROADS AND TRAFFIC AUTHORITY OF NSW Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983

1 On 4 April 1996 Nelmac Pty Ltd was engaged in the construction of a bridge under contract from the defendant in these proceedings the Roads and Traffic Authority of NSW. Mark Poi was a carpenter employed by Nelmac Pty Ltd. He was walking across the bridge which had been built over a gully. Timber bearers had been placed between pre-cast girders and plywood had been placed on the bearers to cover the openings. Concrete was to be poured over the total area to form the deck of the bridge. When Mr Poi was walking along the bridge in its then state of construction on 4 April 1996 not all of the plywood had been nailed down. He stepped on one piece of plywood which was not nailed to the bearers and fell through the hole in the bridge a distance of some 18 metres and was killed. Nelmac Pty Ltd was prosecuted by the Secretary of the Construction Forestry Mining & Energy Union (NSW Branch) and in proceedings which are reported as Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Justice Wright, the President of this Court convicted Nelmac Pty Ltd of three offences under s 15 of the Occupational Health and Safety Act 1983 ("the Act"), the defendant having pleaded guilty. The defendant was fined a total of $100,000. 2 In these proceedings the prosecutor Inspector John Mulder of the WorkCover Authority of New South Wales has charged the defendant Roads and Traffic Authority of NSW with a breach of s 17 (1)(a) of the Act. The defendant has pleaded guilty and this judgment is concerned only with the assessment of penalty. 3 Section 17(1)(a) of the Act is in the following terms: Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of: (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom, 4 The charge brought against the defendant is in the following terms:

On the 4 April, 1996 at Myrtle Gully New South Wales, the defendant, being in control, to any extent, of non-domestic premises, to wit, the concrete bridge construction which had been made available to persons (not being the defendant's employees) as a place of work DID FAIL to ensure that the premises were safe and without risks to health contrary to Section 17(1)(a) of the Occupational Health and Safety Act, 1983, in that it did not provide such supervision of the site as may have been necessary to ensure that persons could not fall from areas of the bridge construction site to the ground below. i. At all material times the defendant was the principal party of a contract with Nelmac Pty Ltd. The contract was for the construction of a concrete bridge for vehicular traffic on the Princes Highway 49 kilometres south of Nowra at Myrtle Gully. ii. At all material times Nelmac Pty Ltd conducted a bridge construction business. iii. At all material times Nelmac Pty Ltd employed Mark Poi. iv. On the 4 April, 1996 at approximately 7.15am Mark Poi fell 18 metres to his death, through a piece of unsecured formwork on the form deck. v. There was no effective fencing in place to prevent a person from accessing an area of the form deck from which they might fall pursuant to regulation 73(8) of the Construction Safety Regulations. vi. There were no safety nets in place as required by regulation 74 of the Construction Safety Regulations. vii. The persons working on the bridge were not wearing safety harnesses or attached to any life lines viii. The plywood falsework had not been secured so as to prevent any movement or slipping.

FACTUAL BACKGROUND 5 An agreed statement of facts was tendered in the proceedings, in the following terms: 1. The Prosecutor is and was at all material times an Inspector duly appointed and empowered by Section 48 of the Occupational Health & Safety Act, 1983, to institute the within proceedings. 2. At all material times the defendant ROADS AND TRAFFIC AUTHORITY OF NSW was incorporated under the Traffic Administration Act, 1988 with its head office located at Roden Cutler House, 24-28 Campbell Street Sydney New South Wales. 3. At all material times, Nelmac Pty Ltd conducted a bridge construction business in various parts of New South Wales and Victoria. 4. At all material times, the defendant had contracted with the defendant Nelmac Pty Ltd to construct and was undertaking the construction of a concrete road bridge for vehicular traffic on the Princes Highway 49 kilometres south of Nowra at Myrtle Gully in the State of New South Wales. 5. At all material times, Nelson Douglas McIntosh, was the managing director of Nelmac Pty Ltd. 6. At all material times, Nelmac Pty Ltd employed Mark Poi, 51 years of age, as a labourer on the construction of the above concrete bridge at Myrtle Gully. 7. At all material times Nelmac Pty Ltd employed the following personnel at the above construction site; 1. Noel Alcock as a foreman/carpenter. Mr Alcock was in charge on 4 April 1996. He had been an employee with Nelmac for over 20 years and had a vast amount of experience in bridge construction and the method of formwork used by the Company. 2. Glenn Findley as a carpenter. 3. Mark Scott as a carpenter 4. Michael Hibberd as a labourer 5. Damon Fahey as a steelfixer and concreter

7A. The method of construction that Nelmac used at Myrtle Gully was developed by Nelmac. 8. On the 4 April 1996 at about 7:15am, Mark Poi fell through unsecured formwork on the bridge deck, approximately 18 metres to the ground below. Poi suffered immediate fatal injuries from the impact of the fall. 9. An inspection of the bridge was undertaken on the 4 April 1996. An inspection report was prepared and photographs taken. 10. The investigation revealed that the bridge is constructed by the use of concrete columns from the base of the gully to the underside of the bridge deck in a north south direction. Concrete cross girders are placed on each column in an east west direction. Five pre-cast concrete girders are placed from one cross girder to the next at equal spacing, a distance of approximately 30 metres between each column. Between the pre-cast girders, timber bearers are placed so that formply can be placed to cover the openings between the girders. Concrete is then placed over the area to form the bridge deck. 11. Once the concrete has been poured on top and has cured, the nails in the brackets are removed and a sledge hammer used to knock out the bearers enabling the removal of the sheets of ply. This task is done on a mobile gantry. The bearers fall onto the gantry. The sheets of plywood are then lowered down and passed back up onto the bridge. Most of the time the brackets remain in place because they lay between the top of the girders and the newly laid concrete. A light tap with a hammer usually releases them. 12. These same building principles had been used to construct bridges in the past. The building crew perform a mixture of the many jobs which are required in bridge construction. 13. The vast majority of bearers and formply had been placed between each girder and at almost the full length (30 metres) of the girders of span two. 14. On 3 April 1996 on the southern side of the form deck the last 750mm between each of the five girders had not been completed with formwork. These openings were covered over with sheets of plywood approximately 2.4 by 1.2 metres. (See photograph 3). Findley and Hibberd were engaged in cutting the plywood to size to fit the openings, the opening being approximately 1.4m by 750mm. This task was begun on 3 April 1996. On the morning of 4 April 1996 at approximately 7.00am Findley and Hibberd recommenced this task.

14A.The method for carrying out the work was devised and implemented by Nelmac. Nelmac employees performed the work and were supervised in the performance of the work by other Nelmac personnel. 15. At the time of the inspection the fourth opening from the west had a temporary sheet of ply over it with no timber bearers under the plywood. The first and third openings from the west had two timber bearers in the opening with one bearer under the join in the plywood. The formwork had been completed and the plywood nailed to the bearers to complete the third bay. The centre piece of plywood had been placed in the first opening however it is unclear if the plywood had been nailed to the bearers. 16. At the time of the inspection, the second opening from the west had a temporary sheet of plywood over it. There was one timber bearer in the opening positioned 250mm from the existing formwork deck. Marks on the concrete girders within the opening and 250mm from the southern edge of the opening seems to indicate that another bearer with metal brackets may have been positioned there. (See photographs 7, 10 & 11). 17. A plywood sheet had been cut for this opening and placed onto the bearers. This was confirmed as a sheet of plywood and terrafirma was seen falling from the opening at the time of the accident. (See photographs 12 & 13). During the inspection a plywood sheet was observed at the base of column two under the second opening. This plywood sheet when measured indicates that it was purposely cut to fit the opening. 18. The inspection of the plywood indicates that it had not been recently nailed. The few nail holes in the plywood did not match the placement of the timber bearers nor did the plywood around the holes look to be recently penetrated by a nail. There were no nails in the timber bearer still in the opening and on the ground or in the plywood. 19. At the base of column two, four timber bearers were observed. One was broken into two pieces. The break in the timber appeared to be fresh and a number of stone pieces were observed imbedded into the timber possibly caused by a fall from a height. (See photographs 15, 16 & 17). This bearer was joined together and placed into the opening that Poi fell through by Inspector P Fox and Inspector T Cassel. It fitted the opening. 20. A number of metal brackets were observed near the timber bearers used to hold the bearers in position on the concrete girders. (See photographs 1, 2, 18 & 19). One of the brackets had a 50mm nail protruding through a pre-drilled hole in the bracket. The pointed end of the nail appeared to be as new, whereas the head end appeared rusty indicating it had only recently dislodged from its position. 21. It was revealed that, on the day of the accident, Mark Poi had been requested by Noel Alcock to obtain some 'terrafirma' material to place over recently poured concrete. 22. Mark Poi has obtained the 'terrafirma' carrying it in a bundle in his arms and walked along the completed section of the bridge beside the 27 ton crane situated on the bridge. He has walked onto the formwork deck stepping over steel reinforcement bars, and unsuspectingly stepped upon the unsecured plywood, the plywood and bearers moved within the penetration causing him to fall through the bridge surface. 23. Also, other employees of Nelmac Pty Ltd were working around these openings with the task of closing them up with timber bearers and plywood, none of the employees were wearing any type of fall restraints. This would mean that at some point these persons would have been exposed to an opened penetration in the deck with a fall to the gully below. 24. Alcock was working approximately 4 metres west of the bay where Poi was said to have fallen through, while Findley and Hibberd were working approximately 3 to 4 metres to the east and Scott was located approximately 30 metres to the north of that same area. 25. Fahey was working approximately 60 metres to the north at the base of the bridge structure with a view of the underside of the bridge. 26. It is also clear that there was no fence or barrier around this work area while each and possibly more than one of these openings were exposed at some point. This allowed others who were not directly working on these openings to walk pass or over these openings. 27. An Industry code of practice, (Safety Line Systems) was kept on site in the office, but was not followed. Noel Alcock stated that "at that point in time, work was not life threatening." 28. Nelson McIntosh visited the construction site once a month to once every six weeks or whenever he was needed by the workers. 29. On the site was the representative of the defendant, Steven Budd. Budd was employed by the defendant as site superintendent. Mr Budd commenced work at 7:30 am on 4 April 1996 but he was not told about the particular work involving the penetrations being performed on the 3rd or 4th of April. It was not part of his on-site function to be consulted about how work was to be performed, as this task remained that of Nelmac. 30. Steven Budd was authorised by the defendant to issue site directions regarding safe work practices and release any hold points on the construction of the bridge. The general duties of Steven Budd were the regular surveillance of the contractor's processes and work standards to ensure that the specifications and process requirements were being met. 31. As part of the defendants supervision of the construction site, a site diary was used by the defendant to record the "works in progress" and "discussions with contractor", including "site instructions" given. Attendance at the work site by the defendant's representative (Mr Budd) was sometimes daily or every two to three days. 32. It is alleged that the defendant, Roads and Traffic Authority of NSW has breached section 17(1)(a) of the Occupational Health and Safety Act, in that, on the 4th of April 1996 at Myrtle Gully, the defendant, being in control, to any extent, of non-domestic premises, to wit, the concrete bridge construction which had been made available to persons (not being the defendant's employees) as a place of work DID FAIL to ensure that the premises were safe and without risks to health contrary to Section 17(1)(a) of the Occupational Health and Safety Act, 1983, in that it did not provide such supervision of the site as may have been necessary to ensure that persons could not fall from areas of the bridge construction site to the ground below.

6 In addition to the agreed statement of facts, other documentary evidence including statements and photographs was tendered and evidence was given by the prosecutor. The defendant tendered extensive documentation dealing with the contractual relationship between it and contractors with particular emphasis on the defendant's commitment to ensuring that occupational health and safety matters achieved great significance as a contractual matter. The documentation tendered is voluminous and impressive and I am satisfied that the defendant has a substantial commitment to occupational health and safety matters not only as it extends to its own employees but also to work sites created by contracts which it issues to third party contractors. 7 The general conditions of contract which applied to the contractual arrangements covering the construction of this bridge were tendered into evidence. The defendant was empowered to appoint a superintendent who in turn was entitled to issue directions to the contractor as provided for in the general conditions of contract. By clause 26 the contractor was required to employ and ensure that only persons who are "careful, skilled and experienced in their respective trades and callings" are utilised in connection with the contract works. The superintendent was given the right to object to and direct the contractor "to remove or have removed from the site or from any activity connected with the work under the contract" any person who in the opinion of the superintendent was guilty of misconduct, incompetence or negligence in the performance of duties. Special conditions of contract which applied to this particular work stated that the superintendent would be the defendant's "Quality Assurance Representative" with respect to the contract works. 8 In addition, a written specification applied specifically to occupational health and safety requirements concerning the contract between Nelmac Pty Ltd and the defendant. This specification set out a number of requirements to be observed by Nelmac Pty Ltd as the contractor. For example, "only competent and safety minded employees are permitted on site", "safety protective clothing and equipment shall be provided and worn when necessary for reasons of safety and occupational health", and, importantly, for the purpose of these proceedings "hand rails on scaffolding, open sides of work areas, formwork, floor openings, pits or excavations where persons can fall more than 1.8 metres shall have hand rails provided at a height of one metre above the working platform or level. They shall comply to size and method of fixing as prescribed by regulations." In addition, "safety belts or safety nets are to be provided and used when no other form of prevention is available to guard against falls from heights." 9 As referred to in para 29 of the agreed statement of facts Stephen Budd was the defendant's superintendent on site. He had issued a number of written directives to Nelmac Pty Ltd. The dates on which these were issued are not clear on the copies which were tendered into evidence. On 9 October 1995 Nelmac Pty Ltd was instructed to stop all unsafe work and comply with the specifications to which I have referred. This noted problems with safety helmets, scaffolding trestles and ladders and safety belts or safety nets. There is also a reference to hand rails and safety belts or safety nets on a direction issued on 2 August 1995. The evidence suggests that directions issued by Mr Budd were complied with by Nelmac Pty Ltd. 10 A statement given by Mr Budd to the prosecutor on 30 May 1996 indicates that he was not present at the site on 4 April 1996 prior to the accident to Mr Poi. This is somewhat inconsistent with the material contained in para 29 of the agreed statement of facts. 11 When asked by the prosecutor whether he had seen the system used by Nelmac Pty Ltd employees in the placing of formwork between the pre-cast girders Mr Budd said that he could only recollect seeing them filling in the end part of the span. "Because there was plywood around the area I don't remember them wearing safety harnesses." He said that he had seen openings or penetrations in the formwork deck which were not effectively fenced or covered over but these had been placed there for access onto another platform. He had not issued any written instructions concerning openings in the formwork deck nor the fact that they were not effectively fenced or covered over.

ASSESSMENT OF PENALTY 12 Both Ms McDonald of counsel who appeared for the prosecutor and Mr Hodgkinson of counsel who appeared for the defendant agreed that s 51A of the Act applied and that the maximum relevant penalty was $750,000. The prosecutor conceded that the defendant had pleaded guilty at the earliest possible opportunity. 13 Consistent with well-established authority in this Court the most significant factor in assessing penalty is a consideration of the nature and quality of the offence. Whilst there can be no doubt that the defendant was subject to the absolute obligation imposed upon it by s 17 of the Act, a breach to which it pleaded guilty, there are, in my opinion, a number of factors which should be taken into account in considering the nature and quality of this particular offence. 14 The bridge was being constructed under contract by a builder which had undoubted experience and professed expertise in bridge building and in particular the building of bridges of the kind under construction when this accident occurred. I refer to the judgment of Wright J in Ferguson v Nelmac previously referred to especially at pp 197-198. The real and effective cause of the accident was the failure of personnel employed by Nelmac Pty Ltd to nail down the piece or formwork which covered the area on which Mr Poi stepped. A secondary cause was a failure to fence or otherwise isolate that part of the work until the nailing down operation had been completed. There is a suggestion that safety harnesses should have been worn, particularly by Mr Poi but there was no evidence tendered in these proceedings which would allow me to assess the practicality of issuing a safety harness to a person who was walking from one end of the bridge to the other. As a matter of practicality, and, I hope, commonsense it would be inappropriate to expect the defendant in these proceedings through its representative Mr Budd to have inspected every piece of formwork to have ensured that it was nailed down before any person could walk on it or to ensure that it was fenced or isolated in some way. On the other hand, there is evidence that Mr Budd had detected a number of what I regard as serious breaches by Nelmac Pty Ltd personnel in terms of the failure to use safety harnesses and the like previously and he should, in my opinion, have been alert at the least to safety issues. He should also have been alert to enforce the safety requirements in the contract specifications. However, as I have said I do not regard it as necessary to assess the nature and quality of the offence in terms of a detailed examination as to whether every piece of formwork had been nailed down and was therefore safes to be walked upon. 15 It is obvious, in my opinion, that the greater culpability must attach to Nelmac Pty Ltd because it as the principal contractor, was in all practical terms, in control of the operation and had a direct and substantial obligation in connection with the health, safety and welfare of all of its employees including Mr Poi. 16 I have already referred to the penalty which was imposed upon Nelmac Pty Ltd by the President. The aggregate penalty imposed was $100,000. The maximum penalty for each offence was $500,000. 17 His Honour took into account that Nelmac Pty Ltd had had one prior conviction involving a small monetary penalty and had a number of infringement notices issued against it. 18 As against this, the defendant in these proceedings has eleven prior convictions, the details of which I set out below:

22/9/94 OH & S s 15(1) IRC 30,000 IRC93/1092 4/10/94 OH & S s 16(1) IC 20,000 CT94/1028 23/12/94 OH & S s 15(1) IC 40,000 CT94/1119 29/8/96 OH & S s 16(1) IC 150,000 CT95/1127 10/2/97 OH & S S 15(1) CIM 3,000 CIM96/1367 10/2/97 OH & S s 15(1) CIM 4,500 CIM96/1448 22/5/98 OH & S ss 15(1) & 16(1) IRC 190,000 IRC97/6334-5 GLOBAL

19/11/98 OH & S s 15(1) IRC 50,000 IRC97/6022 31/8/99 OH & S s 15(1) IRC 200,000 IRC98/1284 14/3/00 OH & S s 15(1) Wagga 35,000 Wagga Wagga 11/7/00 OH & S s 16(1) CIM 10,000

19 The more extensive record of this defendant must be balanced as against that of Nelmac Pty Ltd because the operations of this defendant are far more extensive than those of Nelmac Pty Ltd and, I shall assume, this defendant has many more employees than Nelmac Pty Ltd. 20 In all the circumstances I propose to approach the assessment of penalty in these proceedings as maintaining some comparative consistency with the penalty imposed by the President on Nelmac Pty Ltd. I have already referred to the comparative culpability and the disparity in the appropriate maximum penalty in each set of proceedings. 21 For completeness I mention that I take into account the purpose of the punishment including its deterrent effect. 22 In all the circumstances I assess an appropriate penalty at $100,000 which I reduce by reference to an early plea of guilty by 25 percent. The resultant penalty is $75,000. 23 The prosecution sought an order for the payment of a moiety and costs, neither of which was opposed by the defendant.

ORDERS 24 I make the following orders: 1. The defendant is found guilty of the offence stated in the summons and convicted accordingly. 2. The defendant is to pay a penalty of $75,000 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant is to pay the costs of the prosecutor. 4. I grant liberty to apply in the event that agreement as to the quantum of costs cannot be reached. ____________________

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