WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v William Marshall trading as King Camphor

Industrial Relations Commission (NSW)|2004-12-16|Before: Schmidt J

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v William Marshall trading as King Camphor [2004] NSWIRComm 392 PROSECUTOR: WorkCover Authority of New South Wales PARTIES : DEFENDANT: William Marshall trading as King Camphor FILE NUMBER: 6521 of 2003 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - prosecution under s9 - Occupational Health and Safety Act 2000 - construction industry - falling log - fatal injuries resulting - plea - offence proved - penalty imposed - application of s6 Fines Act - principles of parity considered LEGISLATION CITED : Fines Act 1996 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Manpac Industries Ltd v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 McColl v John Watson Building services Pty Ltd and Dowdon Contracting Pty ltd [2004] NSWIRComm 353 CASES CITED : Postiglione v R (1997) 189 CLR 295 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v Christian MacDonald [2004] NSWIRComm 394 HEARING DATES: 12/01/2004 DATE OF JUDGMENT: 12/16/2004

PROSECUTOR: Ms L McManus of counsel LEGAL REPRESENTATIVES: DEFENDANT: Self-Represented

JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 16 December 2004

Matter No IRC 6521 of 2003 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KENNETH GEORGE MARTIN) v WILLIAM MARSHALL trading as KING CAMPHOR Prosecution under s9 of the Occupational Health and Safety Act 2000

1 On 15 November 2001, the defendant exposed Gordon Joseph McMullen, to risk of fatal injuries while at the defendant's place of work, when a pole being used in the erection of a shed, fell and struck Mr McMullen. The defendant accepted that he had breached the obligation imposed upon him by s 9 of the Occupational Health and Safety Act 2000, that he not expose non employees to risks to their health, safety and welfare from the conduct of his undertaking, while they are at his place of work.

a) At all material times the defendant was self-employed; b) At all material times the defendant's place of work was the construction site ("the construction site") of a partially completed farm shed/carport for vehicular storage located at 276 Nolans Road, Stokers Siding; c) At all material times the defendant owned and operated a tabletop truck NSW registration XGR 921 which had a vehicle mounted crane between the truck tray and the cabin; d) At all material times Gordon Joseph McMullen ("McMullen") was a friend of Christian MacDonald ("MacDonald") and was assisting MacDonald in that capacity at the defendant's place of work on 15 November 2001; e) At all material times the defendant's undertaking was assisting MacDonald at the construction site to erect the farm shed/carport by utilising his tabletop truck with the mounted crane to position timber bearers on top of vertical timber posts; f) The defendant failed to provide a safe system of work in relation to the erection of the farm shed/carport while utilising his truck with the mounted crane at the construction site; g) The defendant failed to ensure that McMullen, a visitor to the construction site in a non-work related capacity, was not exposed to risks of injury while at the said construction site; h) The defendant failed to ensure that McMullen while at the said construction site was kept at a safe distance from where overhead work was being carried out; i) The defendant failed to ensure that McMullen while at the said construction site was not permitted to assist workers, including himself, at that site while they were carrying out overhead work utilising the defendant's truck with the mounted crane attached; j) The defendant failed to provide or maintain a working environment that was safe and without risks to health and safety in not conducting a risk assessment prior to work commencing at the construction site; k) The defendant failed to provide information and instruction as may be necessary to ensure the safety of non-employees including McMullen at the construction site; l) As a result of the said failures McMullen and others were placed at risk of injury and McMullen suffered fatal injuries.

3 The agreed statement of facts relevantly provided: ... 3. At all material times the Defendant's place of work was the construction site of a partially completed farm shed/carport for vehicular storage (the construction site) located at 276 Nolans Road, Stokers Siding, New South Wales (the premises): see photograph 1. 4. At all material times Mr Edmond Kuipers and Ms Deborah Burton owned and occupied the premises. 5. At all material times the Defendant's undertaking was the construction of a farm shed/carport. 6. The farm shed/carport was to be built of hardwood. Some old treated poles similar to old telegraph poles were used in the construction. 7. The poles were about 6.5 metres in length and weighing about 250 to 300 kilograms each. 8. At all material times the Defendant's place of work was the construction site. 9. At all material times the Defendant owned and operated a truck with a mounted crane, registration number XGR 921. The crane had a three metre reach and could safely lift 3 tonne. 10. At all material times Mr Christian MacDonald was self-employed. 11. The construction of the farm shed/carport was carried out by placing horizontal poles on top of vertical poles: see photographs 1 and 13. 12. Prior to the Defendant attending the premises to work, Mr Kuipers levelled the area of the construction site and dug holes for the poles to be placed in, to a depth of about 1.4 metres. Twelve poles had been placed vertically into the holes that Mr Kuipers had dug. Further poles were required to complete the job. 13. Sometime during the week before 15 November 2001 Mr MacDonald contacted the Defendant and asked the Defendant to deliver to the construction site more poles and to assist the Defendant with the construction of the farm shed/carport. 14. The Defendant was to be paid $60 per hour, which his usual charge for broking the crane. Mr MacDonald was advised of this charge prior to the job. 15. On Thursday 15 November 2001 the Defendant attended the construction site to work. The Defendant and Mr MacDonald worked together placing the logs. The Defendant supplied some logs then obtained a second load from another supplier. 16. Mr MacDonald cut the poles to length by chain saw. 17. The Defendant used the crane, mounted on his truck, to erect the poles. Each time Mr MacDonald and the Defendant moved a pole the Defendant would have to move the truck. 18. The crane was operated by the Defendant by him standing on the back left hand side of the truck facing the front as he leant over the headboard to operate the controls (see photograph 9). 19. The Defendant lifted the poles and placed them horizontally on top of the vertical standing poles which had been placed in the holes. Photograph 1 shows the horizontal and vertical poles in place. 20. To lift a pole a chain connected to the crane was tied around the centre of the pole (see photographs 2 and 8). 21. An area was cut out of the horizontal pole at each end to a depth of about 30mm (mortice) so that the horizontal pole would sit on the top of the vertical pole (see photograph 5). The morticing was done by Mr MacDonald by chainsaw. 22. To place the smaller logs the end was cut into a point (pointing): see photograph 2 and 6. The point was then fitted into the vertical pole. The pointing was done by Mr MacDonald. 23. Mr Kuipers was present while the work was being performed. 24. Mr Kuipers directed that the lighter poles were to be placed at the back of the shed frame which was to be the back awning of the shed. 25. For the large poles one of the men assisted by holding the tail rope and guiding the poles. For part of the work this was done by Mr Kuipers. 26. Later in the day Mr Glenane, a bobcat driver, attended the construction site and commenced working with Mr Kuipers, spreading gravel. 27. About 17 poles had been placed in the ground. About six horizontal poles had been placed on the vertical poles by the Defendant, Mr MacDonald and Mr Kuipers that day. 28. When the men had about two more poles to position, Mr Gordon Joseph McMullen attended the construction site. Mr McMullen was a flatmate of Mr MacDonald. 29. Mr McMullen assisted the placement of the poles by holding the tagline. Mr Kuipers at this stage was working nearby with the bobcat driver spreading cracker dust. 30. A pole had been placed onto the back of the truck and the Defendant was to pick up another pole and place it on the truck to take to the next bay. The pole was on the ground next to the truck and was connected to the crane by chain ready for lifting. 31. The pole was one of the smaller poles and it did not have a tag line on it. 32. Mr MacDonald was standing on the back of the truck with the chainsaw (see photograph 15). He had a conversation with Mr McMullen about attending a funeral for Mr McMullen's step-brother at Sydney. Mr McMullen was standing at the right hand side of the truck. 33. The conversation ended. Mr MacDonald turned away from Mr McMullen and commenced the chainsaw and started pointing another pole. Mr McMullen turned to walk away. 34. The Defendant commenced lifting the pole attached to the crane to place it up onto the back of the truck to shift and continue the job. The jib of the crane was raised about a metre. 35. The Defendant saw a pole falling and saw it hit Mr McMullen. It hit him on the back of the head, neck and shoulder area and then continued to fall and he fell underneath it before it fell of him. Mr McMullen was propelled forward and the beam landed on his foot as it hit the ground. 36. The pole which hit Mr McMullen had been in position on top of 2 vertical poles: see photograph 2, 3 and 11. 37. It is not clear whether the pole being lifted by Mr Marshall hit the horizontal pole causing it to fall or whether the crane being operated by the Defendant hit the horizontal pole causing it to fall. The Defendant believed that the jib of the crane dislodged the pole. 38. Mr McMullen suffered a disrupted pelvis. He was taken to hospital and died later the same day. 39. The horizontal pole was a smaller pole. Mr MacDonald had not cut the mortice was not cut as deep so that it would sit higher on the top of the vertical poles. This was done so that the roof would be level: see photograph 5. 40. The horizontal poles were not tied down after being placed on the vertical standing poles: see photographs 4 and 13. 41. The pole being lifted was of varying weights and thickness along its length. When lifted by a single loop chain attaché din the middle of the log it could swing or dip. 42. There was no-one on ground level directing the crane. 43. No risk assessment was carried out prior to the work being undertaken. The Defendant did not question the methodology. 44. No-one was wearing a safety helmet. 45. The Defendant worked in the construction building industry for many years. However he had not done stood up beams like this before. His work was mainly dealing with trees and sawmills, timber and cartage. He had previously worked for Lysaght Steel operating overhead cranes and cap cranes. 4 This judgment deals with the penalty to be imposed upon the defendant, the maximum penalty being $55,000, as well as the question of costs.

5 The amount of the penalty to be imposed upon the defendant is to be determined having regard to the nature and seriousness of this offence; the role which general and specific deterrence have to play in that penalty and that impact of the subjective features of the offence, as revealed in the evidence, have on the penalty to be fixed. The amount of the discount flowing from the defendant's plea must also be decided.

6 On the evidence, there is no doubt that the prosecution demonstrated that the offence was serious. The risk in question was both readily foreseeable and avoidable. The defendant accepted his responsibility for what had occurred. That was understandable, in a context where the construction of the shed involved heavy timber poles being placed on vertical uprights, without any means of securing the pole, being utilised, once the poles had been lifted by crane. The risk that such an unsecured pole would fall, if struck by the crane being operated by the defendant in close proximity to these unsecured poles, was obvious, as was the risk that those working nearby would be hit and seriously injured, if such a pole were to be dislodged and fall.

7 These heavy poles were being lifted above head height, by a method which permitted them to dip and swing. Once put into place, they were left unsecured while work continued around them, with the crane and other poles in close proximity. No risk assessment had been carried out. No safety gear was being worn and no safe work method had been considered. No one was directing the crane which the defendant was operating and Mr McMullen was not kept a safe distance from the operation.

8 The evidence showed that the obvious risk present from the approach adopted to this work in fact materialised, tragically resulting in the fatal injuries sustained by Mr McMullen. The occurrence of death may manifest the seriousness of a risk to safety. (Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32].) This is such a case.

9 The defendant offered no explanation for the method of construction adopted, or the complete lack of attention paid to the requirements of safety. He had a history of having been self employed for some 20 years in the 'timber to furniture' industry, work which involved felling trees, operating machinery and trucks, running and operating sawmills and machine shops.

10 This was the defendant's first offence. He is now involved in the operation of a Co-op, whose aim is to develop the camphor laurel tree as a timber resource for low cost housing, employment and economy for the local community. He has also undertaken casual work as a saw mill operator and is involved in the harvest of camphor laurel to utilise millable timber and to burn the rest, to generate green electricity.

11 There is no doubt on the evidence that the nature and seriousness of this offence, must be reflected in a substantial penalty.

12 It follows from the evidence that the system of work in place had patent deficiencies. The risk of injury arising from the way in which the crane was positioned and operated and the poles were left, unsecured, once lifted into position was obvious. There was no evidence that any steps were subsequently taken, in order to address the deficiencies which had manifested themselves on this occasion.

13 In these circumstances, it must be concluded that both general and specific deterrence have a role to play in the penalty imposed. The Full Court has emphasised that general deterrence is a major consideration in prosecutions brought under the Act and that in most cases, specific deterrence must be taken into account, in order that a sufficient level of diligence by the offender will be encouraged for the future. (Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610). I am satisfied that both have a proper role to play in this case.

14 Given the evidence of the defective approach taken by the defendant to safety before the accident and the absence of any evidence as to steps taken afterwards, to address the risks then revealed, I am satisfied that this case is one where specific deterrence must have a role to play in the penalty imposed case.

15 The prosecution accepted that in determining penalty the defendant was entitled to have the plea taken into account, but submitted that any discount should be at the lower end, given that it was only entered on the day of the hearing.

16 I accept the defendant's expressions of remorse for what occurred. He contributed his earnings from the job to Mr McMullen's family and had maintained contact with his wife and family, in an endeavour to provide them with support. This is also relevant to penalty.

17 Given the timing of the plea entered and the consequences in this case, I am satisfied that the defendant is entitled to a discount of 15% for the utilitarian value of his plea, (R v Thomson; R v Houlton (2000) 49 NSWLR 383), as well as a further 3% discount reflecting his remorse and contrition for what occurred.

18 Section 6 of the Fines Act 1996 requires that in fixing penalty, the Court have regard to the defendant's financial position. The Full Court dealt with this requirement in Manpac Industries Ltd v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at 467. The purpose of a fine is, of course, to punish the offender. The burden which a penalty will impose must, however, also be considered by the Court. That does not mean that a proper consideration of the evidence in a particular case will not result in a heavy penalty.

19 In McColl v John Watson Building services Pty Ltd and Dowdon Contracting Pty ltd [2004] NSWIRComm 353, the Full Court has recently established principles applicable to the application of s 6 of the Fines Act in proceedings such as this. It was said at [22] to [25] that: 22 Section 6 of the Fines Act is in the following terms: s 6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 23 The application of the provisions of s 6 of that Act and legislation to similar effect were comprehensively reviewed by Marks J in Inspector Mansell v Eleven Lighting Pty Ltd [2002] NSWIRComm 339 at paragraphs [14] and following. That judgment also reviews the application of s 6 of the Fines Act to corporate defendants in prosecutions brought under the occupational health and safety legislation as determined by this Court both at single judge and appellate level as well as the standard of proof which applies, including the onus on a defendant to put forward such material by way of evidence as will assist a court in applying the provisions of s 6.

24 We agree with and adopt the following principles which may be distilled for present purposes from the discussion of the authorities contained within the judgment in Inspector Mansell v Eleven Lighting Pty Ltd : 1. This court is obliged to take into account the means of a defendant to pay any penalty by virtue of s 6 of the Fines Act . 2. The imposition of a fine on a corporation may have different ramifications to the imposition of a fine on an individual where imprisonment or some other penalty may be available as an alternative sanction. That alternative is not available in the case of a corporation. 3. A defendant who wishes to rely on the provisions of s 6 to temper the amount of any monetary penalty bears the onus of putting such evidence in support as is appropriate before the court and bears the onus on the basis of the balance of probabilities of satisfying the court as to the truth of such evidence and its relevance to the fixing of penalty. 4. Whilst it is for a corporate defendant to fully disclose its financial state, it is for the prosecutor to check that information in order to assist the court in determining the propriety of taking that evidence into account in imposing a monetary penalty. It is inappropriate for the court to exercise an inquisitorial role in this regard.

25 In addition, we note the following principles which have been settled for the consideration of the financial situation of the defendant: 1. In the context of determining penalties in prosecutions for a breach of occupational health and safety legislation by a corporation, it may be appropriate, in some limited circumstances, for the Court to have regard to whether the defendant's corporate structure is little more than a means of distributing earnings arising from personal exertion or where the burden imposed by a fine will fall on one person or family, compared with a corporation which is functioning as "a company with assets of a substantial kind": see Haynes v CI&D Manufacturing (1995) 60 IR 455 at 457. However, it is now also clear that the fact that a corporation may represent the alter ego of a person or family and that any penalty imposed on the corporation will consequently have a financial impact on that person or family does not, of itself, warrant a reduction in penalty: WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Ltd trading as Old But New [2004] NSWIRComm 247 ; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 . 2. The financial position and the means of a defendant should be taken into account when determining penalty. It is well established that, notwithstanding such considerations, the penalty must ultimately reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309; Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435. 20 The Full Court also dealt with the need for a defendant to put adequate evidence before the Court, as to relevant financial material, if s 6 of the Fines Act is to be applied, observing at [27]: In our opinion, having regard to the fundamental principles as discussed earlier in these reasons, it is necessary for information of that kind to be made available by a defendant before a court can properly exercise the discretion required to be exercised by s 6 of the Fines Act . As was pointed out in Mansell v Eleven Lighting , the defendant is uniquely qualified to provide that information and is required to do so if it wants the benefits of s 6. A failure to do so will result in circumstances where the appropriate application of s 6 of the Fines Act cannot be undertaken and must fail. In our opinion, such was the case here.

21 The defendant's evidence was that he had extremely limited means. His activities generated few earnings, with the result that he was living a hand to mouth existence. He had lost all of his assets and had received financial assistance from his mother, in order to support his involvement in a local timber co-operative. In casual employment he was able to earn $20 per hour, but such work was seasonal and intermittent and he had no regular, or consistent income over the course of a month. Occasionally, he got work such as felling a tree or operating a truck. He also from time to time cut timber and sold it after it had dried. He presently had some seven cubic metres of such timber, which cost $350 per tonne to produce and was sold for $650 per tonne. More could be generated by value adding, through artistic endeavours. In the last month he had earned some $300 to $400 through sales at the Co-op shop. His intention was that these endeavours would be valuable in the long run, but the Co-op was presently at a cross roads.

22 There was no documentary evidence led by the defendant to support or test his evidence, such as income tax returns or bank statements. Nor were the Co-op leases referred to, tendered. The defendant was unable to indicate what his earnings in the last 12 months had been. He had made no tax returns and he also explained that his business records were inadequate. The leases in question, on the defendant's evidence, had resulted because he had signed them in his personal capacity for the Co-op which he supported in his position of President. He had paid out $25,000 in meeting the lease obligations and had also lost all of his assets, as a result of signing the leases. Contrary to his hopes the Co-op was not yet generating sufficient income to meet the lease obligations itself. It operated on a not for profit basis. He had hopes that this position would alter over time and that the Co-op would become successful in generating income.

23 I note that the defendant was unrepresented in the proceedings. He appeared to plead guilty to the charge and to submit to the Court's imposition of penalty. He gave evidence by way of statement, about matters he believed relevant to the offence. As a result, he was cross examined by the prosecution about his financial position. Had he been represented, a much clearer picture of the extent of his financial difficulties would undoubtedly have emerged. The prosecutor did not submit that the defendant's evidence about these matters should not be accepted.

24 In the circumstances I am satisfied that s 6 of the Fines Act requires that account must be properly be taken of the defendant's financial position, such as it emerged in the evidence, noting however the absence of supporting documentary material. I do not regard the Full Court's approach in McColl as having the result that the evidence can be ignored. Section 6 (a) after all requires that the Court have regard to 'such information regarding the means of the accused as is reasonably and practicably available to the court for consideration'.

25 On the evidence, I do accept that the imposition of a heavy penalty would be a considerable burden on the defendant, given his very limited financial resources, a matter which must be taken into account in assessing penalty. I make it clear that but for this situation, the defendant would be facing a much more significant financial penalty in the circumstances of this offence.

26 The defendant was charged under the same section of the Act as Mr Christian MacDonald, who was also engaged by Mr Kuipers in the erection of the shed (see WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v Christian MacDonald [2004] NSWIRComm 394). Accordingly, the principle of parity arises for consideration in fixing sentence, in accordance with the approach of the High Court in Postiglione v R (1997) 189 CLR 295 at 301-2 per Dawson and Gaudron JJ and at 341 per Kirby J.

27 I am satisfied that the culpability of the two defendants was similar, but not identical. Given that it was the defendant who owned and operated the crane, his culpability appeared to be somewhat higher than that of Mr MacDonald. Differences in their respective financial means also arose for consideration however, in determining penalty. In each case that situation must result in a significant reduction in the fine otherwise to be imposed, more in the case of this defendant however, than that of Mr MacDonald, given the evidence as to their respective positions. Each defendant entered a plea of guilty, although in somewhat different circumstances. The discounts resulting in each case are also different.

28 I have concluded, applying the parity principle and having regard to all of the relevant factors, particularly the defendants' respective financial positions, that the penalty for the two defendants should be different, with the penalty for the defendant being lower than that of Mr MacDonald. The penalty imposed is, nevertheless, a substantial one in the straightened financial circumstances of this defendant, reflective of the seriousness of the offence. But for those circumstances, the penalty would have been much higher.

29 In light of all of these factors, I have concluded that a penalty of $12,000 must be imposed in this case, reflective of the objective seriousness of this offence and all of the other factors which I have earlier mentioned. The penalty should be reduced, by a total of 18%. This results in a final penalty of $9,840.

30 For all of the reasons given, I find the defendant guilty of the charge and enter a conviction accordingly. The defendant is ordered to pay a penalty of $9,840, with a moiety to the prosecutor. The defendant is also ordered to pay the prosecutor's costs as agreed, or as assessed in accordance with the Court's Rules.

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