WorkCover Authority of New South Wales (Inspector Tucknott) v Walders Goodtime Pty Limited

PROSECUTOR: Mr M P Cahill of counsel Solicitor: Ms K Parsons WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr B K B Cross of counsel Solicitor: Mr K Bagley Thurlow Fisher

JUDGMENT: - 19 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 10 May, 2001 Matter No IRC 4819 of 1999 WorkCover Authority of New South Wales (Inspector Tucknott) v WALDERS GOODTIME PTY LIMITED Prosecution under s 18(2)(a) of the Occupational Health and Safety Act 1983 JUDGMENT 1 Walders Goodtime Pty Limited, a company incorporated in New South Wales and the defendant in these proceedings, was engaged in the business of supplying and erecting temporary seating at public venues. In September 1997 the defendant was contracted by Company B Ltd, a theatrical production company, to build and supply a temporary public seating stand for the performance of a play 'Black Mary' at Wilson Street Carriage Works in Newtown, New South Wales. 2 The defendant was unable to supply the requisite seating and subcontracted this work to Stephen James Corrish, t/as AKA Showtime Staging ("Showtime"), who supplied the components for the stand and also installed and erected the stand. 3 On the evening of 23 September 1997, shortly before a performance of Black Mary was due to commence, the temporary seating stand collapsed to the ground. At the time of the collapse about 50 persons were seated in the stand. Approximately 500 persons were to be seated that evening to view the performance. 4 As a consequence of the collapse about 14 people sustained some form of injury. Four people were hospitalised. No person was permanently incapacitated by their injuries. 5 A prosecution was instituted against the defendant by Inspector Trevor Tucknott of the WorkCover Authority of New South Wales for an alleged breach of s 18(2)(a) of the Occupational Health and Safety Act 1983. 6 At the time of the alleged offence s 18 provided: 18 Manufacturers, suppliers etc to ensure health and safety as regards plant and substances for use at work

(1) In this section: credit-sale agreement means an agreement for the sale of goods, under which the purchase price or part of it is payable by instalments, but which is not a hire-purchase agreement. hire-purchase agreement includes: (a) a hiring of goods with an option to purchase and; (b) an agreement for the purchase of goods by instalments (whether the agreement describes the instalments as rent or hire or otherwise); but does not include any agreement whereby the property in the goods passes at the time of the agreement or upon or at any time before delivery of the goods. lease means any kind of agreement or arrangement under which payments are, or are to be, made for the supply of goods for use by any person, except a credit-sale agreement, a hire-purchase agreement or a contract of sale. manufacture includes design. plant for use at work means any plant designed for use or operation (whether exclusively or not) by persons at work, and includes any article designed for use as a component in, or an accessory to, any such plant. substance for use at work means any substance intended for use (whether exclusively or not) by persons at work. supply , in relation to any plant or substance, means supply the plant or substance by way of sale, transfer, lease or hire, whether as principal or agent for another. (2) A person who manufactures or supplies any plant for use at work or any substance for use at work shall: (a) ensure that the plant or substance is safe and without risks to health when properly used; (b) carry out or arrange for the carrying out of such research, testing and examination as may be necessary for the purpose of the discovery and the elimination or minimisation of any risks to health or safety to which the plant or substance may give rise, and; (c) take such steps as are necessary to make available in connection with the use of the plant or substance at work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about the results of any relevant tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) A person who erects or installs any plant for use at work in any premises where that plant is to be used by persons at work shall ensure that nothing about the way in which it is erected or installed makes it unsafe or a risk to health when properly used. (4) Nothing in this section shall be taken to require a person to repeat any research, testing or examination which has been carried out otherwise than by the person or at the person's instance, in so far as it is reasonable for the person to rely on the results thereof for the purposes of this section. (5) A requirement imposed on any person by any of the provisions of this section shall extend only to things done in the course of a trade, business or other undertaking carried on by the person (whether for profit or not). (6) Where a person manufactures or supplies any plant for or to another on the basis of a written undertaking by that other to take specified steps sufficient to ensure, so far as is reasonably practicable, that the plant will be safe and without risks to health when properly used, the undertaking shall have the effect of relieving the first-mentioned person from the requirements, in relation to the plant, of subsection (2) (a) to such extent as is reasonable having regard to the terms of the undertaking. (7) Where a person (in this subsection referred to as the ostensible supplier) supplies any plant for use at work or substance for use at work to another (in this subsection referred to as the customer) under a hire-purchase agreement or credit-sale agreement, and the ostensible supplier: (a) carries on the business of financing the acquisition of goods by others by means of any such agreements, and (b) in the course of that business acquired the person's interest in the plant or substance supplied to the customer for the purpose of financing its acquisition by the customer from a third person (in this subsection referred to as the effective supplier), (c) the effective supplier and not the ostensible supplier shall be treated for the purposes of this section as supplying the plant or substance to the customer, and any requirement imposed by this section on suppliers shall accordingly fall on the effective supplier and not on the ostensible supplier. (8) Where a person (in this subsection referred to as the ostensible supplier) supplies any plant for use at work to another (in this subsection referred to as the customer) under a lease, and the ostensible supplier: (a) carries on the business of financing the use of goods by others by means of leases; (b) in the course of that business acquired the person's interest in the plant supplied to the customer for the purpose of financing its provision to the customer by a third person (in this subsection referred to as the effective supplier), and; (c) has not had physical possession of the plant or has had physical possession only for the purpose of passing it to the customer, the effective supplier and not the ostensible supplier shall be treated for the purposes of this section as supplying the plant to the customer, and any requirement imposed by this section on suppliers shall accordingly fall on the effective supplier and not on the ostensible supplier. (9) For the purposes of this section, any plant or substance is not to be regarded as properly used where it is used without regard to any relevant information or advice relating to its use which has been made available by a person by whom it was manufactured or supplied. (10) Nothing in this section shall affect the operation of the Sale of Goods Act 1923 or the Fair Trading Act 1987. 7 The charges against the defendant were that:

the defendant, being a person who supplied plant, to wit, a temporary seating public stand capable of seating approximately 600 persons, DID FAIL, contrary to Section 18(2)(a) of the Occupational Health and Safety Act 1983, to ensure that the said temporary seating public stand was safe and without risks to health when properly used at work in that on 23 September 1997 the said stand collapsed when persons were seated in the stand. As a result of the said public stand collapsing, several persons were injured. Particulars of the charge are: a) At all material times the defendant was contracted by a theatrical company Company B Ltd [ACN: 002 866 828] to build and supply a temporary seating public stand for the performance of a play 'Black Mary' at Wilson Street Carriage Works, 229 Wilson Street, Newtown in New South Wales. b) Walders Goodtime Pty Limited being unable to supply the requisite seating subcontracted this work to Stephen James Corrish t/as AKA Showtime Staging, who supplied the components for temporary public seating stand and also installed and erected the stand. c) The installation of the temporary public seating stand was completed on 9 September 1997. Further work was then carried out by both the defendant and Stephen James Corrish to extend the rear of the said stand to seat an additional 60 to 80 persons thereby increasing the overall seating capacity of the said stand to about 600. The extension was completed by 11 September 1997. d) On 16 September 1997 further additional work was carried out on the said stand by the defendant] (sic) to raise the rear seating by about 10mm, so as to remove a potential trip hazard posed by a protruding 10mm metal strip on the edge of the seating. e) On the evening of 23 September 1997, shortly before the performance of the 'Black Mary' play the temporary seating public stand in which about 50 persons seated collapsed to the ground and several members of the public and employees of Company B Ltd, the theatrical company, were injured. f) The defendant failed in any or all of the following aspects: (i) The defendant failed to ensure that the temporary seating public stand had been inspected and certified safe for use by an engineer on completion. (ii) The defendant failed to ensure that the said public stand was adequately braced and secured as required by regulations 1571 (3) (b), (h) & (i) of the Constructions Safety Regulations. (iii) The defendant failed to ensure that variations in erection materials and seating configuration for the said public stand had been designed and approved by an engineer. (iv) The defendant failed to ensure that the said public stand was safe and without risks to health when properly used at work. g) On 23 September 1997, the said public stand collapsed and several persons seated in the stand sustained injuries.

8 The defendant entered a plea of guilty to the charge. 9 Charges arising out of the same factual circumstances applying to the defendant were laid against two other defendants. In respect of one of those defendants, namely, Company B Ltd, the charges have already been dealt with in WorkCover Authority of New South Wales (Inspector Tucknott) v Company B Ltd [2000] NSWIRComm119. The other defendant was Stephen James Corrish, t/as AKA Showtime Staging ("Showtime"). The charges against this defendant were dealt with in WorkCover Authority of New South Wales (Inspector Tucknott) v Stephen James Corrish t/as AKA Showtime Staging [2000] NSWIRComm 96. 10 An Agreed Statement of Facts was tendered during the proceedings. The Statement canvassed the probable cause of the collapse of the seating stand: On 24 September 1997, Bill Chachaty, Acting Senior Engineer employed by WorkCover Authority of New South Wales, attended the site and carried out observations, took photos and prepared a report dated 1 October 1997. Mr Chachaty was of the opinion that the cause of the incident could be "mainly attributed to the inability of the structure to withstand lateral loads, both internally and externally particularly when the front rows [were] unoccupied or lightly loaded. This is evidenced by the forward movement of the whole stand of about one metre. The accident has most likely been precipitated by the loading of the rear stand first." He concluded that "the stand [had] not been safely designed and erected in accordance with the Regulations and good engineering practice". In a report dated 25 September 1998, Senior Engineer Dan Leavy of Engineering Services Branch of WorkCover, concluded that the "public stand collapsed due to inherent problems in its structure viz, it was not designed to withstand the loads it was subjected to and it was poorly erected:- "The fact that it did not collapse the first time it was used and on subsequent nights prior to the collapse was due largely to the way it was filled. At the time of the collapse, a specific seating configuration produced a loading arrangement that initiated the collapse. Mr Leavy's conclusions as to the main contributing factors of the collapse were: (a) The public stand was not designed to withstand the loads prescribed in the Construction Safety Regulations and the relevant Australian Standards pertaining to loading. (b) The A-frame struts were not tied together to prevent their displacement at their bases. (c) There was no means of preventing the pin joining the A-frames to the stringers from becoming disengaged if the members were subjected to sufficient differential movement. (d) Variations in erection materials and seating configuration were not designed or approved by an engineer. (e) There was no in situ inspection carried out by the Council, or by a certifying engineer (sic) competent person on behalf of the Council as required by the Construction Safety Regulations, Such an inspection would have identified problems with the design and erection of the public stand. (f) There were no routine inspections instigated to ensure the continuing structural integrity of the erected public stand. 11 As I mentioned earlier in this Judgment, the defendant was unable to supply and install a seating stand capable of holding 500 people. Consequently, the defendant entered into an agreement with Showtime to supply and erect the seating. It was necessary for the seating to be completed by 9 September 1997 in time for the technical rehearsal. 12 The Agreed Statement of Facts explained what occurred in constructing the seating stand:

13. Corrish on behalf of Showtime started to erect the seating on 5 September 1997. According to Corrish, he was asked to supply and erect a stand to seat 500 people. He was not able with the existing installation on hand to do so. This was due to the upright columns left and right of the temporary seating stand. The initial installation was capable of only carrying 384 persons. He realised this two days after initial erection of the first seating plan. The stand erected by Corrish was a composite stand joined together by means of a stringer system and locking devices. It was a modular system. To increase the overall seating capacity to around 500 Corrish had to extend the temporary seating stand. Corrish completed the installation of the stand on 9 September 1997 as originally envisaged, being the date for the technical rehearsal for the play. 14. The next day, 10 September 1997, there were discussions between Company B and the Defendant regarding the increase in the seating required for the opening night. It was agreed that the seating stand would not have the capacity to seat 600 people for the opening night. Company B and the Defendant agreed that it would be necessary to add to the structure by building more seats at the back of the stand so as to add an additional 60 to 80 seats for the opening night. On 11 September 1997 the Defendant carried out the work for additional seating by building a platform at the back of the temporary seating stand upon which the extra 60 to 80 seats were to be placed. On the same day, having been given prior notice of the additional seating requirements, Showtime came to the site and constructed an additional part of the stand on the newly built platform to provide for an extra 60 to 80 seats. 15. On 16 September 1997 there was further work carried out on the structure by the Defendant. On that day, Rachel Healy, employed as General Manager by Company B, raised an issue with regards to a protruding 10mm strip of metal on the edge of the temporary seating stand and voiced her concerns that the protruding metal strip was a potential trip hazard. Following discussions between Company B and the Defendant, on that day the seating was raised 10mm so as to be the same height as the metal strip thereby eliminating the potential for any tripping. The Defendant carried out the raising of the seating. 13 The evidence was that "At no time during erection of the seating stand, at completion stage or when alterations were made to add additional seats was the structure examined by an engineer and certified to be safe for seating the expected audience of up to 600 persons." 14 The Agreed Statement of Facts explains this failure as follows: 19. Investigations revealed that Company B was aware that the Defendant had subcontracted to Showtime to supply and erect the stand. Wayne Tomas (Production Manager for Company B) stated he dealt directly with Corrish on issues regarding the construction of the stand and in particular on the issue of obtaining the necessary certification for the stand so as to satisfy the Building Approval requirements of South Sydney city council that that structure complied with approved safety standards. 20. Following requests from Company B that Showtime supply certification by an engineer for the temporary seating stand, the original certification for the temporary seating stand by the designer Jens Clemensen & Associates was provided to the Council by Company B. That certification did not relate to the actual temporary seating stand's which had been erected by Showtime. That certificate did not satisfy the Council. Company B then pressed Showtime requesting a confirmation that an engineer had certified the seating. Showtime then provided a hand written document purporting to be a certificate from Jens Clemensen & Associates, Consulting Structural & Civil Engineers dated 23 January 1997 which was faxed to the Council by both Company B and Showtime. That document is not entirely clear and legible and is handwritten on headed paper. 21. Company B then requested Showtime to come on site to check and verify the adequacy of the whole structure. On 13 September 1997, Showtime informed Tomas on behalf of Company B that the structure had been "checked out" by him and "was ok". 22. Investigations further revealed that neither Company B, Showtime nor the Defendant caused the structure to be inspected by an engineer and no steps were taken to obtain an engineer's certificate to show that the structure was safe and complied with the requirements of South Sydney City Council, the Building Code of Australia and Australian Safety Guidelines. No action was taken so as to ensure compliance with Regulation 1571 3 (b) of the Construction Safety Regulations on design, construction and erection of public stands which provides that "... all members including seating and flooring members of a stand shall be secured in position". Regulation 1571 3 (h) of the Construction Safety Regulations further provides that "Raker joists, stringers, stays and other sloping members of a public stand shall where resting on the ground or other surface on which the stand is erected be so braced internally to the structure of the stand or, if the nature of the ground or surface permits, be so secured (sic) or stakes of timber or steel and of adequate section driven into the ground or surface so as to eliminate any tendency for the joists, stringers, stays and other members to sink, or to (sic) side in any direction". That Regulation was also not complied with. Had the stand been examined by an engineer following completion of the erection of the stand and/or at the time when the additional of the platform to the back of the stand for an additional 60 to 80 seats were complete, the inadequacies could have been noticed and appropriate steps could have been taken to rectify the defects so as to comply with the said regulations, by securing and bracing the stand to prevent any movement. 15 In addition to the Agreed Statement of Facts there were two affidavits filed. The first was sworn by Jeremy Hugh Godsiff who was employed as Transport Manager by the defendant at the time of the incident in September 1997. Mr Godsiff had been involved on behalf of the defendant in arranging for the seating to be installed. This involvement consisted of liaising with Showtime, arranging to install the additional seating that was required by Company B and increasing the height of the seating boards to eliminate the problem complained of by Ms Healy, of patrons tripping on the front metal lip of the seating. 16 Mr Godsiff was subjected to cross-examination on his evidence. In the course of cross-examination Mr Godsiff was asked a number of questions regarding his involvement with the erection of the seating: Q. Mr Godsiff, you have indicated to his Honour that you were familiar with this type of seating arrangement and you have seen it erected previously on other sites? A. Yes. Q. It is the case, is it not, that this seating system was made up of separate components that were put together on site? A. Yes, that's correct. Q. And the components fitted together and required fixing to make them hold together? A. Yes. Q. There were provisions in the stringers and the support frames for items to be bolted to provide security and to hold the unit together? A. Yes, I am not overly familiar with it, but, yes. Q. It's the case that that is how it operates? A. Yes. Q. And you, as a person on behalf of this defendant, was aware of the need for those items to be properly fixed together? A. Probably, yes. Q. And you were aware of that when you went out and you looked at the seating on your second visit and subsequently when you went back and did work on it yourself? A. Yes. Q. And so what I am suggesting to you is that when you went back and worked on it that you didn't look and satisfy yourself in any way that this seating had in fact been erected properly and fixed together. You didn't turn your mind to that did you? A. Not at the time, no. Q. When you altered it you didn't turn your mind to whether the alteration that you were making should be investigated by an appropriately qualified engineer? A. That is correct.

17 The other affidavit was that of Geoffrey Christopher Yallop. At the time of the seating collapse Mr Yallop was the Sales Manager for the defendant. In his affidavit Mr Yallop explained his role in providing an initial quotation to Company B to install the seating, his role in subcontracting the work to Showtime and his attendance at Company B's site to inspect progress on the work of installing the seating. 18 Mr Yallop's affidavit also described the action which the defendant has taken since the incident in September 1997. This included the implementation of an occupational health and safety policy which is explained to new employees at the time of induction, a policy relating to certification by an appropriately qualified engineer after it installs every seating structure (whether a certificate is required or not) and a policy governing dealings with third parties. Copies of each of these policies were provided to the Court. 19 An affidavit was also received from Mr Kevin Shirlaw, a director of the defendant and chartered accountant. The affidavit and certain other material tendered into evidence went to the financial position of the defendant. Mr Shirlaw was cross-examined on his affidavit. I do not propose to go into the detail of Mr Shirlaw's evidence, except to say it was to the effect that the defendant's liabilities exceeded its assets. I would have to comment that the nature of the evidence supporting this contention was not entirely convincing. Submissions by the prosecutor

20 Mr M P Cahill of counsel appeared for the prosecutor. Mr Cahill helpfully provided written submissions which addressed a number of issues including: the law on sentencing procedure (Warman International Limited v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326); the objective seriousness of the offence charged (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464, WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd [2000] NSWIRComm 39); the subjective features that mitigate the objective seriousness of the offence including the impact of the guideline judgment of the Court of Appeal in R v Thompson and R v Houlton [2000] NSW CCA 309. 21 Mr Cahill also made oral submissions. In assessing the objective seriousness of the offence Mr Cahill submitted: …the Court should take account of the serious nature and quality of the defendant's offence including: (i) the serious consequences of the subject incident namely the injury sustained, variously, by workers and members of the audience; and (ii) the fact that workers and members of the public were exposed to a risk of injury that was easily identifiable and arose from a series of defects in the construction of the subject grandstand that were capable of easy identification on examination by an appropriately qualified engineer. It was good luck, not good planning, that more persons were not injured.

Finally, a failure on the part of the Defendant to identify evident defects and to undertake remedial steps of a simple, straight forward nature, as occurred in the present case, constitutes aggravating factors which should be taken into account in assessing appropriate penalty. This type of failure is akin to a failure on the part of a Defendant to inform itself of proper and safe working methods and/or a failure to ensure that proper and safe working methods are adopted.

22 Mr Cahill submitted that the defendant had significant knowledge of and responsibility for the construction of the seating stand and supervision of that construction and could not be said, in effect, to have been at arm's length. He argued that while Showtime "bore the frontline role", the defendant was "on parity with Company B or slightly above it", in terms of culpability. Submissions of defendant

23 Mr B K B Cross of counsel appeared for the defendant. Mr Cross also made written as well as oral submissions. 24 Mr Cross submitted that the nature and quality of the offence was at the lowest level and the incident was not reasonably foreseeable to the defendant. In support of this submission Mr Cross argued that the defendant's role in constructing the seating stand and its supervisory role was minimal. Further, that while the defendant knew of the requirement to have the seating certified by an Engineer, it relied on being told by Company B that certification had been obtained. Mr Cross also submitted that the alleged 'evident defects' in the construction of the seating stand were not necessarily evident to Messrs Yallop or Godsiff who attended the site on behalf of the defendant and that there was evidence to suggest that there may have been interference with the stand that may have contributed to its collapse. 25 Mr Cross also referred to the measures taken by the defendant after the offence (the implementation of policies relating to occupational health and safety, certification by an engineer of all seating stands and dealings with third parties). 26 Evidence was also produced regarding what Mr Cross described as the defendant's "parlous financial situation". This was the affidavit of Mr Kevin Shirlaw. 27 Mr Cross relied on the evidence of Mr Shirlaw to make the submission that: the company [the defendant] has more liabilities than assets and … a fine would most probably have to be met by him and the other director, Mr Bailey, and it is just that financial circumstance as I have noted today and on the last occasion, it is not an inability to pay. It is only put as a financial circumstance relevant to the situation. That is as high as it has ever been put.

28 The defendant in these proceedings contracted with Company B to supply and erect the seating stand at the Wilson Street Carriage Works site in Newtown. The defendant subsequently subcontracted Showtime to supply and erect the seating stand. Notwithstanding the fact that the work was subcontracted to another firm, representatives of the defendant continued to have a direct involvement in the construction and alteration of the stand. Representatives of the defendant visited the Company B site on at least four occasions to inspect the work in progress, to arrange additional seating, to erect a platform at the rear of the existing seating and to raise the seating to overcome the problem of the protruding metal lip. The representatives of the defendant who attended the site were reasonably senior employees. 29 It is necessary to mention the defendant's involvement in the erection of the seating stand to make it clear that the defendant was not at arm's length from the process. Certainly, Showtime undertook the bulk of the work in supplying and erecting the seating stand but the defendant was integrally involved. In any event, even if the defendant had no actual involvement in the erection of the seating stand, it seems to me that it would have remained liable under s 18(2)(a) of the Occupational Health and Safety Act because it was the defendant who contracted with Company B to supply and erect the seating. The fact that the defendant arranged for another person to do the work on its behalf does not absolve the defendant of liability. 30 It was a requirement of South Sydney City Council that the seating stand be inspected by an appropriately qualified engineer and a certificate be issued by that engineer "specifying that the proposed and when completed seating frame meets with the approved safety standards applicable for such a structure". The defendant was aware of this requirement; it was part of the agreement with Company B in supplying and erecting the seating stand that the stand had to comply with all council and state government requirements. 31 The defendant acknowledged that it was aware of the requirement for the seating to be certified by an engineer. The defendant pleaded, however, that its failure to ensure certification was largely caused by the fact that Company B dealt directly with Showtime on the issue of a provision of a certificate and that, having inquired of Company B, the defendant was informed such certification had been received. That the defendant did at least inquire as to whether certification had been received by Company B may be accepted in mitigation but ultimately the defendant had a responsibility to ensure that an appropriately qualified engineer had inspected the seating in situ and had certified the seating as being safe. The defendant did not seek to verify that a certificate had been issued, which would have been a simple matter of requesting a copy from Company B. By failing to ensure that the necessary inspection had been carried out and the seating certified as safe, the defendant put at risk the safety of employees and patrons of Company B. 32 I am satisfied the offence has been proven. The plea of guilty by the defendant was properly made and I will enter a verdict accordingly. 33 It remains to deal with the questions of an appropriate penalty and costs. The maximum penalty for the offence at the time it was committed was $550,000. There were no prior convictions. 34 I have considered the objective and subjective factors referred to by both Mr Cahill and Mr Cross in their respective submissions. I note that a guilty plea was entered relatively early. 35 As to the question of the reasonable foreseeability of the risks to safety, Walton J, Vice President, in Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 said at 27: Whilst the reasonable forseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng , Matter No IRC 3064 of 1997, 12 August 1999 at 39), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and The University of Sydney (at 16). 36 It seems to me there was every prospect of serious injury arising out of a failure by the defendant to ensure that an engineer had inspected and certified the seating. This was a fundamental requirement to ensure safety of employees of Company B and members of the public. It was reasonably foreseeable that in the absence of such an inspection and consequent certification as to its safety, the seating may have been unsafe and that when some 500 people came to use the seating, there was a risk that injuries could result from the unsafe condition of the seating. 37 I have had regard to the evidence and submissions relating to the defendant's financial position and have taken that position into account in the light of the judgment of the President, Wright J in Ferguson v Nelmac (1999) 92 IR 188 where his Honour said at 209: It is convenient to deal initially with the question of the financial position of the defendant. I consider that the approach of senior counsel for the defendant is broadly correct in principle insofar as the circumstance of this case are concerned. Further, it accords with the approach of the Court of Criminal Appeal in R v Rushby [1977] 1 NSWLR 594 at 598 and also the requirements of s 6 of the Fines Act 1996 ( cf the former s 440AB of the Crimes Act 1900). I consider also that it is consistent with, and supported by the approach of Hungerford J in WorkCover Authority of New South Wales v Overtop Pty Ltd (1998) 86 IR 319 at 335. The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty. Otherwise it is inappropriate to consider the fact or amount of legal costs, consulting and other fees. In any event, it was not submitted that I should. I should, as submitted by counsel for the informant, consider not only the financial information included in the correspondence from the accountants, but also the defendant's asset position. Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. The penalty imposed will reflect the consideration given to this aspect as discussed above. I have also had regard to the submissions filed by the informant in respect of the additional affidavit and issues arising from it. Further, I have considered and applied the authorities referred to therein, particularly Haynes v C I & D Manufacturing Pty Limited (No 2) at 457-458; R v Sgroi (1989) 40 A Crim R 197 and R v Rahme (1989) 43 A Crim R 81. Finally on this aspect, I indicate that I do not consider that the penalties imposed are beyond the means of the defendant. 38 It was not put to me by counsel for the defendant that it was beyond the defendant's means to meet any penalty that might be imposed, only that any penalty would have to be met by directors of the defendant. 39 As to penalty, I have considered my judgment in WorkCover Authority of New South Wales v Company B Ltd [2000] NSWIRComm 119 where a total penalty of $40,000 was imposed comprising $20,000 for an offence under s 15(1) and a further $20,000 for an offence under s 16(1) of the Occupational Health and Safety Act 1983. Given that the offence under s 18(2)(a), in respect of which the defendant in the present proceedings is guilty, arose out of the same factual circumstances as those which applied to Company B Ltd I have given consideration to the question of consistency in sentencing. 40 This question was addressed comprehensively by a Full Bench of the Commission in Court Session in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 at 56-58: Questions of parity or consistency in sentencing under the Act

61 The appellant submits that the sentence in this matter involves a significant disparity with other sentences imposed under the present form of the Act. It submits that Hungerford J erroneously exercised his discretion in failing to, or failing to correctly, apply the principles of parity. It is submitted that it is the responsibility of this appellate bench to correct a sentence which is out of line with the commonly accepted sentence pattern: see R v Visconti [1982] 2 NSWLR 104 at 108. In support of its submissions the appellant has provided a schedule of recent judgments and the penalties imposed thereby. The schedule initially filed was amended at the hearing. 62 It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and IRC98/1106, 4 February 2000 at 103): "Whilst the principle of parity normally operates in relation to co-offenders or a cross the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen " where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 …" 63 When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said, at 371: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: 'The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.'" 64 In Channon v The Queen (1978) 20 ALR 1 at 18, Deane J observed: "In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances." 65 As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10.

66 The principle of consistency is relevant to this appeal, as it is a reflection of the notion of equal justice, a fundamental element in any rational and fair system of criminal justice. See for example R v Henry (1999) 46 NSWLR 346 at 353 where Spigelman CJ said: "12. As I indicated in Jurisic , the purpose of a guideline judgment is to foster consistency in sentencing. The importance of consistency was well expressed by Mason J in R v Lowe (1994) 154 CLR 606 at 610 - 611: 'Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.'" and see also R v Howland at 43 - 44 per Spigelman CJ.

41 I have had regard to the nature and quality of the offence, the subjective features of the offence including the plea of guilty, the overall culpability of the defendant compared to that of Company B Ltd, and the principle of consistency. In the latter respect, I have taken particular note of what Deane J said in Channon, namely: In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances.

42 In all the circumstances, I consider that a penalty of $40,000 is appropriate. 43 I find the defendant guilty of the offence charged and enter a verdict accordingly. I order that the defendant is convicted and is fined an amount of $40,000 with a moiety to the prosecutor. The defendant is ordered to pay the prosecutor's costs in an amount as agreed or assessed.

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