WorkCover Authority of NSW v Company B Ltd

PROSECUTOR: WorkCover Authority of New South Wales Mr M Cahill of Counsel DEFENDANT: LEGAL REPRESENTATIVES: Mr J Phillips of Counsel Solicitor - Mr Ellis Ms Raper Baker & McKenzie

JUDGMENT:

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No IRC 4820 of 1999 WORKCOVER AUTHORITY OF NSW (INSP TUCKNOTT) V COMPANY B LTD Prosecution under s16(1) of the Occupational Health & Safety Act 1983

Matter No IRC 4821 of 1999 WORKCOVER AUTHORITY OF NSW (INSP TUCKNOTT) V COMPANY B LTD Prosecution under s15(1) of the Occupational Health & Safety Act 1983 JUDGMENT Introduction

1 Company B Ltd ("Company B"), a company incorporated in New South Wales and the first defendant in these proceedings, is a theatrical production company based at the Belvoir Street Theatre in Surry Hills. In September 1997 Company B staged a production called "Black Mary" at the old Eveleigh Railway Workshops in Newtown, which had been leased from the State Rail Authority ("SRA"). On the evening of 23 September 1997, shortly before a performance of Black Mary was due to commence, a temporary seating stand erected for the purpose of a public viewing of the performance, 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.

2 As a consequence of the collapse about 14 people, including employees of Company B and members of the public sustained some form of injury. Four people were hospitalised. No person was permanently incapacitated by their injuries.

3 Prosecutions were instituted against Company B by Inspector Trevor Tucknott of the WorkCover Authority of New South Wales for an alleged breach of s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983 ("OH&S Act"). Section 15(1) of the OH&S Act imposes a strict liability on an employer to "ensure the health, safety and welfare at work of all the employer's employees." Similarly, Section 16(1) requires an employer to "ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at his place of work."

4 The charges against Company B are that: (i) "The defendant, being an employer, on the 23 September 1997 at the Wilson Street Carriage Works, 229 Wilson Street, Newtown in the State of New South Wales, DID FAIL to ensure that persons not in its employment, and in particular Susan Gleave and Cathy Ridulfo, were not exposed to risks to their health or safety arising from the conduct of his undertaking while they were at his place of work contrary to Section 16(1) of the Occupational Health & Safety Act , 1983 in such case made and provided." (ii) "On the 23 September 1997 at Wilson Street Carriage Works, Wilson Street, Newtown in the State of New South Wales, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all its employees, and in particular Paul Charlier and Kevin Blythe, contrary to Section 15(1) of the Occupational Health and Safety Act , 1983, in such case made and provided." 5 The defendant company entered a plea of guilty to both charges. It falls to the court to determine whether the pleas should be accepted and, if so, whether and to what extent penalties should be imposed.

6 There are two other defendants. The second defendant is Walders Goodtime Pty Limited and the third defendant is Stephen James Corrish t/as AKA Showtime Staging. It is alleged that these two defendants also committed offences under the OH&S Act in connection with the seating that collapsed on 23 September 1997. The charges against these two defendants, however, are the subject of separate proceedings.

7 Mr M Cahill of counsel appeared for the prosecution and Mr J Phillips of counsel appeared for the first defendant.

8 The evidence in the proceedings consisted of the following: i) Agreed Statement of Facts; ii) Bundle of 19 photographs relating to the collapse of the seating stand; iii) A report dated 25 September 1997 by Mr Dan Leavy, Senior Engineer, Engineering Services Branch, WorkCover Authority of New South Wales, into the collapse of the seating stand; iv) An accident report made out by Ms Rachel Healy, General Manager of Company B dated 26 November 1997; v) Letter dated 11 September 1997 to Company B from South Sydney Council; vi) Letter from Jens Clemensen and Associates to Showtime Staging dated 20 October 1994; vii) Letter from Jens Clemensen and Associates to Showtime Staging dated 23 January 1997; viii) Affidavit of Rachel Healy, General Manager, Company B. ix) Paragraph 28 of a draft agreed statement of facts dated 7 June 2000 from Baker & McKenzie to Karen Parsons, Legal Services Branch, WorkCover Authority; x) Record of Interview conducted by Inspector Moore of Michael William Cook dated 8 July 1998.

9 Company B is a well known and highly regarded theatrical production company. It has received a host of awards for its productions over the years. Both Company B and the Belvoir Street Theatre were established in 1984. Since 1984 over 1.2 million people have attended performances at the Theatre. Company B employs 20 full time staff and some hundreds of artists, arts administrators, casual and technical staff from time to time.

10 The production, Black Mary, had been running since 16 September. How the seating stand had not collapsed earlier than 23 September is explained later. The play was being co-presented by the Sydney Organising Committee for the Olympic Games ("SOCOG") as part of the first Festival of the Cultural Olympiad, known as the Festival of the Dreaming. Company B had been contracted by SOCOG to produce the play. Seventy two per cent of the box office revenue went to SOCOG. The affidavit evidence of Ms Rachel Healy, the General Manager of Company B, indicates that SOCOG did not provide any personnel or administrative assistance and only minimal production resources to Company B to meet its opening night deadlines. Moreover, Ms Healy stated that the contract SOCOG presented to Company B was onerous and took many months to negotiate. In fact the contract was not signed until 23 September 1997, the day of the alleged offences. The delay in signing the contract caused serious cash flow problems and the lack of support and assistance from SOCOG is said to have significantly compounded the difficulties and pressures associated with the production of Black Mary.

11 At paragraph 28 of her affidavit Ms Healy says: "These pressures meant that as a consequence, Company B staff and artists worked literally around the clock to have the show and the site ready for opening night. Wayne Tomas, the Production Manager for Black Mary, virtually lived at the site and on one occasion even slept there. In an almost derelict venue, with almost no administrative support, Wayne Tomas coordinated a large team of lighting and sound staff, supernumeraries, directors, designers, actors, fire wardens, armourers, volunteers, scenic artists, prop makers, set builders and like production staff." 12 Wayne Tomas was engaged by Company B as Project Manager for the production of Black Mary. According to Ms Healy he was responsible for all technical and production aspects of the play including managing labour, occupational health and safety issues, building the set, arranging for the sound and lighting and managing the production budget. He was also contracted to prepare a Development Application and Building Approval for submission to the South Sydney Council for use of the venue as a place of public entertainment, including installation of a temporary seating stand and stage at the Newtown site. Consequently, Mr Tomas played a central role in the events leading up to the collapse of the seating stand.

13 The problems in staging Black Mary were compounded even further by the fact that by its nature the play had to be performed in a non-traditional theatre space. It was necessary to build a set recreating a landscaped section of the New South Wales countryside. This involved shipping in thousands of tonnes of dirt and the use of live horses. The site chosen, as I have mentioned, was the Railway workshop in Newtown. This had been leased from the SRA in the early 1990s and since 1994 Company B had been attempting to get approval for a permanent development and building application from South Sydney Council ("the Council") in relation to the site. The Agreed Statement of Facts tendered by the parties in the proceedings (Exhibit 1) states that "The Council set up working meetings to assist Company B develop a proposal and take all the necessary steps to comply with the Council requirements. In 1997 it became apparent that the First Defendant could not raise enough money to fund this project so they sought advice on how to get a temporary Building Application ("BA") and Development Application ("DA") submitted to Council so the production of "Black Mary" could be staged." Approval was subsequently granted to Company B by the Council to stage the production with 500 seats in the theatre, except on opening night when 600 seats were allowed.

14 It was also a requirement of the Council, conveyed in writing to Company B, "That Certification from a practising Structural Engineer or other appropriate qualified person shall be supplied specifying that the proposed and when completed seating frame meets with the approved safety standards applicable for such a structure." As it happened this did not occur.

15 In early September 1997 the contract to erect the temporary seating stand was awarded to the second defendant. Annexed to Ms Healy's affidavit is the second page of a letter signed by Geoffrey Yallop, Director of Sales. Under the heading "Compliance" the letter states "The system complies with all Council & State Government requirements and we are covered by a $10 million public liability policy. Copy (sic) of certificate of currency is attached." In referring to this letter in her affidavit Ms Healy says this letter is "their (the second defendant's) assurance that the seating stand met all local and state government regulatory requirements." The letter is confirmation of the second defendant's capacity to install a system of seating, the terms under which that would be done and that the system it was to supply complied with Council and State Government requirements. The letter is not a reference to a seating stand in situ because at the point the letter was obviously issued the seating stand was not erected. Nevertheless, as I understand the first defendant's case, the letter from the second defendant was an assurance that should be taken into account when considering the degree of culpability of Company B.

16 As it turned out the second defendant was unable to supply the necessary seating because the type of seating supplied by it did not meet Company B's specifications. Apparently the second defendant then entered into an agreement with the third defendant to supply and erect the seating for the show. The third defendant commenced work to erect the seating on 5 September 1997. This was completed on 9 September.

17 On the same day, Wayne Tomas realised there was not enough seating to meet the requirement of 600 seats for opening night. In his statement, which is Annexure X to the affidavit of Ms Healy, Wayne Tomas says that he contacted "Jeff" at "Walders" (the second defendant) and on Wednesday 10 September, following discussions about how it might be done, it was agreed between the two that more seating was necessary.

18 The evidence indicates that on 11 September the second and third defendants came to the site and carried out the necessary work to install the additional seating.

19 The evidence indicates that on 12 September, as a result of instructions received the previous day from Mr Luke Farrell of South Sydney Council, Mr Tomas contacted the third defendant by telephone requesting that the third defendant obtain certification for the seating from a Structural Engineer that would state that the seating met the approved safety standards. The third defendant sent a copy of a letter dated 20 October 1994 from Jens Clemensen & Associates, consulting structural and civil engineers, to the third defendant regarding a "mobile grandstand structure" . The letter was to the effect that the structure complied with certain standards. On the face of it the letter had nothing whatsoever to do with the seating stand at the Newtown site. The third defendant also sent a copy of the Clemensen letter to the Council.

20 Upon receiving the so-called certificate Mr Farrell from the Council again contacted Mr Tomas and indicated that the certificate did not satisfy the Council's requirements. Mr Tomas, in his statement, says that Mr Farrell said to him words to the effect: "We require more than the original certification from the designer. We want confirmation that this seating is certified." (emphasis is that of Mr Tomas). Mr Tomas then telephoned Mr Corrish, the third defendant, and said words to the effect: "The council want more than the original certification of this seating. They want confirmation that this seating in this venue in this configuration meets with the requirements of the BCA and the Safety Council of Australia." Mr Tomas says that Mr Corrish replied in words to the effect of: "I can give that certification."

21 Mr Tomas' statement then states: "Steve Corrish sent me, with a copy to the Council, a handwritten certification from Jens Clemensen dated 23 January 1997. Annexed and marked "C" is a true copy of the certification. I did not hear anything further from the Council and accordingly I believed that the certification annexed and marked "C" satisfied point 18 of the 11 September 1997 letter." 22 The reference to "point 18 of the 11 September 1997 letter" is a reference to a letter from the Council to Company B requiring certification by an Engineer of the seating.

23 Mr Tomas received the second certificate dated 23 January 1997 - a date he refers to in his statement in Annexure X to Ms Healy's affidavit - and which, despite the fact it was handwritten and in places was not entirely legible, refers to a project involving Australia Day Ceremonies at Darling Harbour. It seems to me that in the light of Mr Farrell's specific request for certification by an Engineer of the seating at the Newtown site, the date on the second certificate - some nine months prior to the staging of Black Mary - and the reference to a ceremony at Darling Harbour, should have alerted Mr Tomas to the fact that the second certificate, like the first, may not have been acceptable in terms of providing certification for the seating stand at the Newtown site. At the very least, Mr Tomas should have had some doubts about the relevance of the second certificate. Mr Tomas clearly knew from his experience with the first certificate what was required - that is, confirmation that the seating as it was erected at the Newtown venue needed to be certified by an Engineer. Nevertheless, he appears to have decided it was entirely a matter for the Council and as he says, not having heard further from the Council, believed that the second certificate satisfied the Council's requirements. Mr Tomas apparently made no attempt to check with the Council whether the second certificate was acceptable or, indeed, whether the Council had even received the second certificate.

24 Mr Cahill, in his submissions makes the point that Mr Tomas was also responsible for the construction of the stage and its certification by an Engineer. That certification was provided and is Annexure "S" to Ms Healy's affidavit. Mr Cahill argued that when one compares the certificate in Annexure "S" relating to the stage and the second certificate supplied by Clemensen in relation to the seating, it should have raised concerns in Mr Tomas' mind about the nature of the seating certificate.

25 Whatever the reason for Mr Tomas' failure to ensure that the seating stand was properly certified in accordance with the Council's explicit requirements - whether it was the sheer pressure of work I referred to earlier in trying to meet the opening night deadline or excessive reliance on third parties or both - I find that this failure was a key link in the chain of omissions that led to the collapse of the seating stand on 23 September 1997. I say this because as Mr Leavy, a senior Engineer with the Engineering Services Branch of WorkCover says in his report into the collapse of the stand (Exhibit 3) "There was no in situ inspection carried out by the council, or by a certifying engineer or other 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." Further, the Agreed Statement of Facts states that "Had the stand been examined by a suitably qualified engineer following completion of the erection of the stand and/or at the time when the addition of the platform to the back of the stand for an additional 60 to 80 seats were completed, the inadequacies could have been noticed and appropriate steps could have been taken to rectify the defects…..."

26 In relation to the Council's role, there is no evidence that the Council actually received the second certificate. One would have thought that if the Council had received it the reaction would have been the same as that in respect of the first certificate. That is, it was not acceptable and hence the Council would have taken steps once again to inform Company B of this fact. There is no evidence that this occurred. Even if the Council had not received the second certificate, one would have expected that Mr Farrell, who had been liaising with Company B since at least early August 1997, who had informed Company B of the requirement for certification of the seating and who had informed Mr Tomas that the first certificate was not acceptable, would have followed up on Company B's failure to lodge the appropriate certificate. There is no evidence that he did so.

27 Whether or not the second certificate was received by the Council, the Council's failure to follow up on its requirement for a valid certificate in relation to the seating stand in situ would suggest that, in the absence of any evidence to the contrary, the Council's procedures in this respect were seriously inadequate. Moreover, this failure on the Council's part was another link in the chain of omissions that led to the collapse of the seating stand.

28 Another issue that arises in relation to this chain of omissions concerns the third defendant. There are some aspects of the third defendant's role I am uncertain about in relation to providing the certificates and also, I have not heard the third defendant's account of events. Clearly, the first defendant was relying on the third defendant to provide the necessary and proper certification but even if I were to accept that the third defendant failed in this respect -and I make no finding about this - it does not absolve Company B from its ultimate responsibility to have the seating inspected by a qualified person and to supply a certificate to the Council.

29 In response to a request from Wayne Tomas, made some time between 5 September and 13 September, the third defendant inspected the seating stand on 13 September and on that day indicated to Wayne Tomas that the seating stand was "okay". Mr Corrish indicated that he had inspected each unit, each frame, each stringer, each backgate and the whole structure. The third defendant was not an Engineer and during the investigation of the collapse of the seating indicated he was not aware whether or not an Engineer had visited the site to inspect the seating stand.

30 In fact, 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. The Agreed Statement of Facts states that Company B was not aware of this. While that may be so, Company B took no positive steps to find out whether an inspection had been carried out by an Engineer. Instead of doing so Company B seems to have relied almost exclusively on the third defendant to provide a certificate that the seating stand met the approved safety standards. The third defendant did provide a certificate but it was not a certificate from an Engineer who had inspected the seating in situ as required by the Council.

31 In her oral evidence Ms Healy stated that she had been told by Mr Tomas that an inspector from the Council had visited the site shortly before 16 September and had approved the seating subject to a certificate from an Engineer. I do find it strange that this important piece of information was not included in Ms Healy's affidavit in the first place and I do note that there is nothing in Mr Tomas' statement annexed to Ms Healy's affidavit about a council inspector inspecting the seating. But even taking Ms Healy's evidence at its highest, which I do, it does not change the fact that in the final analysis a certificate was still required from a qualified Engineer certifying that the seating stand was safe and that Company B failed to provide it.

32 Another link in the chain of omissions was that according to the Agreed Statement of Facts, no action was taken by the second or third defendant so as to ensure compliance with the Construction Safety Regulations relating to the design, construction and erection of public stands, in particular reg 157I (3)(b) and (3)(h). As it was pointed out earlier, had the stand been examined by a suitably qualified Engineer the inadequacies could have been noticed and appropriate steps could have been taken to rectify the defects.

33 At about 8.05 pm on 23 September 1997 the seating stand collapsed. The consequences of the collapse, in terms of injury to employees and to members of the public, have already been explained. Just prior to the stand collapsing, three large metal clanking sounds were heard.

34 On 24 September 1997, Bill Chachaty, Acting Senior Engineer employed by the WorkCover Authority of New South Wales, attended the site and carried out observations, took photos and prepared a report dated 1 October 1997.

35 Paragraph 8 of the Agreed Statement of Facts states: Mr Chachaty was of the opinion that the cause of accident could be "mainly attributed to the inability of the structure to withstand lateral loads, both internally and externally particularly when the front rows are 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 has not been safely designed and erected in accordance with the Regulations and good engineering practice."

36 A further report, to which I have already referred, was prepared by Mr Dan Leavy a Senior Engineer of the Engineering Services Branch of WorkCover in which he 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." Paragraph 9 of the Agreed Statement of Facts states that: "Mr Leavy observed :

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". 37 In his report Mr Leavy referred to the "clanging" noises heard by witnesses immediately prior to the collapse of the seating stand. He said "This would be consistent with some of the A-frames becoming disengaged from the stringers and falling to the ground." 38 Paragraph 10 of the Agreed Statement of Facts refers to photographs and observations made by Inspector Trevor Tucknott: (a) A number of very large and old industrial buildings known as the old Eveleigh railway yards. (b) Inside one of these buildings (known as the old suburban car workshop) was a temporary seating arrangement which stepped up to approximately 3 metres high at the back and which appeared to have collapsed to the ground. (c) The seating area measured approximately 15 metres by 15 metres and was constructed of galvanised steel components with plywood seats. (d) At the rear of this seating and supporting some of the seating was a flat stage type area, which measured approximately 6 metres by 15 metres by 1 metre high. (e) The supports underneath the seating consisted of 15 stringers below, spaced approximately 1 metre apart. (f) There were approximately 15 rows of seats each measuring approximately 800mm wide. (g) On both sides of the seating were steel balustrade type handrails approximately 1 metre high running the whole length of the seating and at the same angle as the seating upwards to the rear. (h) The steel stringer sections at the rear of the seating where it left the ground were supported with steel A frame sections on the concrete floor and the flat stage area at the rear. (i) The steel stringer sections had holes adjacent to the joins but appeared to have no bolts placed in these holes. (j) There were a number of persons in and around the seating area and a number of emergency personnel such as Police, Fire Brigade, Security etc.

39 As the evidence shows, in 1997 Company B took on the challenge of producing and presenting a significant production, Black Mary, in a non-traditional theatre space. It had only done this once previously in 1994 and so the old Eveleigh railway workshop was a relatively unfamiliar environment. This unfamiliarity was accompanied by extraordinary financial and production pressures.

40 One of the constants, however, regardless of location and financial and other pressures on an employer in New South Wales, is that under s 15(1) and s 16(1) of the OH&S Act the employer must ensure the health, safety and welfare of its employees at work as well as ensuring that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at his place of work. Company B failed to meet those obligations.

41 There was a very clear requirement on Company B, as a condition of using the Railway workshop as a temporary theatre, that it provide a certificate by a practising structural Engineer specifying that the proposed and completed seating stand met with approved safety standards. This requirement was not the responsibility of any other person or organisation. It was Company B's responsibility.

42 What Company B did, however, was to delegate its responsibility for having the seating stand certified, to the third defendant. But having delegated the responsibility, Company B did not take reasonable steps of its own to ensure that the condition imposed on it for use of the workshop as a temporary theatre had been met. It did not inquire or take other steps to determine whether an Engineer had in fact inspected and approved the seating; it did not inquire to ensure that the second certificate had reached the Council and it did not check with the Council whether the second certificate was acceptable despite the fact that like the first certificate, which was rejected by the Council, the second certificate also did not relate to the seating stand as erected at the Newtown venue.

43 The inadequacy of the second certificate, which was evident on its face, should have served to alert Company B and caused it to make further inquiries of the Council rather than assume that not having heard from the Council the certificate was acceptable. After all, some 600 people were expected to be seated in the temporary theatre on opening night. An assumption that their safety was assured on the basis of a certificate that, on its face, had no connection with the seating stand as it was erected at the Newtown venue was a very dangerous assumption indeed and subsequent events proved this to be so.

44 Similarly, it was not sufficient, on its own, for Company B to rely on the assurance of the second defendant that its seating system met local and state government requirements. This is so for two reasons, firstly, the assurance was about the second defendant's seating system yet to be installed and not a seating stand in situ. Company B was well aware by 12 September that what was required by the Council was certification by an Engineer of the seating stand erected in the temporary theatre. Secondly, the seating erected was not one supplied by the second defendant in any event.

45 Furthermore, it was not sufficient, on its own, for Company B to rely on the inspection and "okay" of the seating stand by the third defendant on 13 September. Company B knew Corrish was a rigger, not a qualified Engineer (see page 203 of Ms Healy's affidavit).

46 Finally, in this respect it was not sufficient for Company B to rely on any statement by the council inspector that the seating stand was acceptable because as the inspector said, a certificate from an Engineer remained a requirement.

47 The fact is that if Company B had taken steps that were reasonably open to it to ensure that an Engineer had inspected the site as it was required to do under the conditions imposed by the Council then, according to the evidence, the collapse of the seating stand could have been prevented and the detriment that occurred to the health and safety of employees and members of the public would have been averted.

48 Because of this failure on the part of Company B I find that the first defendant did fail to ensure the health, safety and welfare of work of all of its employees and, in particular, Paul Charlier and Kevin Blythe, contrary to s 15(1) of the OH&S Act. I further find that the first defendant did fail to ensure that persons not in its employment and, in particular, Susan Gleave and Cathy Ridulfo, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at the first defendant's place of work contrary to s 16(1) of the OH & S Act. It is, therefore, appropriate that the first defendant's plea of guilty be accepted and that it be convicted of the offences charged.

50 In assessing penalty there must be regard for the nature and quality of the offence. In Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Insp Ch'ng) (1999) 90 IR 464 a Full Bench of the Commission in Court Session said:

". . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH & S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence.' 51 In the absence of an inspection by an Engineer of the seating stand and certification that the seating stand met the approved standards of safety for such a structure, a serious risk and detriment to safety was created.

52 The question then arises as to the level of Company B's culpability in creating this risk.

53 Mr Phillips for the first defendant submitted that Company B was very conscious of its responsibilities relating to safety and pointed to the care it had taken in relation to the certification of the safety of the stage, which it had erected and which it saw as its particular responsibility. He also referred to Ms Healy's concern over a piece of metal protruding some 10 mm from the seating stand and how this might lead to someone tripping. This problem was subsequently attended to by the second defendant after it was brought to their attention by Mr Tomas.

54 Mr Phillips submitted that the whole of the blame cannot be sheeted home to Company B. He said that Company B was in the business of producing plays and not erecting seating stands. He argued that Company B's error was that it relied on the experts to do their job properly but that the experts failed. Indeed, he argued that Company B was misled by the experts. Mr Phillips submitted that Company B did what it could to obtain the necessary certification but that the second and third defendant and the Council all failed to meet their obligations in this respect.

55 The only other error according to Mr Phillips was that Company B did not check the date or the wording of the second certificate and while he concedes that Company B was at fault in not ensuring the seating stand had been certified by an Engineer, he submitted that the degree of fault was low.

56 Mr Phillips referred to Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312, a decision of a Full Bench on appeal. In that case the appellant (defendant at first instance) had been fined $80,000 by Fisher P under s 15(1) of the OH&S Act. An employee of the defendant had been electrocuted upon entering a "live" substation. The defendant appealed against the severity of the sentence. The Full Bench held that there were relevant factors which were not adverted to by Fisher P when determining penalty, or if adverted to , were rejected by him as not being relevant and/or mitigating ones. These included: that the primary cause of the risk and the detriment to safety was that the substation was not de-energised by the appropriate authorities at the time the substation was decommissioned or, at any time, prior to the letting of the contract to the appellant; that the risk and detriment to safety was compounded by the further failure of Public Works to specify in the contract that the job included the removal of equipment in the live electrical substation; that the appellant was misled. They were induced to believe the substation was not live and were lulled into a false sense of security by the failure of Public Works to specify and warn that the substation was live; that the circumstances which gave rise to the offence were of a 'one-off' character and did not reflect any previous or ongoing approach to safety matters by the appellant.

57 In Nesmat the Full Bench noted that: "On appeal we were advised that the prosecution which had been commenced against a member of the staff of Public Works had been withdrawn, and that Public Works was never prosecuted in relation to the tragic accident despite what was, on the evidence, the instrumental part played by it. The absence of prosecution of other parties, on whom the appellant had reasonably relied, underlines the cogency of argument presented on appeal that the sentence gave rise to a justifiable sense of injustice."

58 Mr Phillips sought to draw a parallel with Nesmat in that he argued that Company B had, in effect, been lulled into a false sense of security and had also been misled by the actions of others including the Council. He also said that, as with the appellant in Nesmat, if a penalty was imposed on Company B and not on the Council who, in his submission was also culpable, Company B would have a justifiable sense of injustice. No information has been laid against the Council.

59 As to the first point, about being lulled into a false sense of security and being misled, I accept that Company B was entitled to rely to some extent on the second and third defendants and the Council about certification of the seating stand. One would have expected that a firm in the business of supplying and erecting temporary seating stands would be familiar with the need of local government authorities to have such stands certified by a Structural Engineer and, indeed, such firms could facilitate meeting this requirement. This was a reasonable expectation on the part of Company B. It was also a reasonable expectation that the Council would strictly police the requirement and inform Company B that the certification was or was not acceptable.

60 To this extent the whole of the blame cannot be sheeted home to Company B. Insofar as being misled, however, I cannot accept this was the case. At all times after the rejection of the first certificate Company B knew that it was required to have the seating stand certified by an Engineer in situ. As I said earlier, it was not open to Company B, given that the safety of 600 people was at stake, to simply assume the second certificate - which on its face and which Company B should have known was unacceptable - was acceptable to the Council without ensuring this was the case, either by questioning the validity of the second certificate when it was received by Mr Tomas, or by making inquiries of the Council to this effect.

61 As to Mr Phillips' argument that Company B would feel a sense of injustice if it were penalised and the Council was not, I accept there is a degree of validity in that proposition. But having found Company B guilty of the charges, the question of any injustice goes to the size of the penalty and I will come back to that issue later in this judgment.

62 Both Mr Cahill and Mr Phillips raised a number of subjective factors which they submitted the court should have regard to in sentencing. These included a plea of guilty at an early stage; cooperation with the investigating authorities; cooperation with the prosecuting authority; measures taken by Company B after the breach to avoid a further recurrence; measures taken to assist the injured workers and members of the public; the fact that Company B has no prior convictions. Mr Phillips also submitted that the success of Company B could be ultimately harmed by a disproportionately high penalty and raised the issue of incapacity to pay. Mr Phillips, as I understood him, did not say that Company B did not have the capacity to pay any penalty but rather that as a result of the collapse of the stand it had already suffered a loss in the order of $300,000. A further heavy monetary penalty could affect the continued viability of the first defendant, especially because it relies so much on contributions from the community and sponsorship by governments. Mr Phillips also expressed "profound regret" in relation to the collapse of the seating stand.

63 I accept that these are all subjective factors that I should take into account in sentencing.

64 Mr Phillips submitted that in all the circumstances I should apply s 10 of the Crimes (Sentencing Procedure) Act 1999. He referred to two cases to support this submission, namely, a decision of Peterson J in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (1999) 90 IR 119 and a decision by Miller CIM in Inspector Peter Ankucic v Rapid Packaging Services Pty Ltd, (unreported, CIM 94/1323 and 1324, 6 April 1995).

65 Section 10 of the Crimes (Sentencing Procedure) Act 1999 replaces s 556A of the Crimes Act 1900 and provides that, inter alia: "(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond." 66 It is clear from the authorities that the use of s 556A was unusual or rare in prosecutions under the OH&S Act: Schultz v Tamworth City Council (1995) 58 IR 221 at 229; WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Limited (1999) 90 IR 413 at 430-431; WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101; Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) [2000] NSWIRComm 48; WorkCover Authority of New South Wales (Inspector Guillarte) v Genner Constructions Pty Ltd [2000] NSWIRComm 87.

67 Mr Phillips submitted in this case the use of s 10 of the Crimes (Sentencing Procedure) Act 1999 was appropriate because Company B's culpability was low, because Company B has a good record and attitude to safety and because of what Company B had done as a result of the accident. He said that no good purpose would be served by imposing a penalty on Company B.

68 Mr Cahill opposed the use of s 10 of the Crimes (Sentencing Procedure) Act 1999. He said that this was not a case where the principles for non-use of this provision applied. I agree. I do not accept, for the reasons I have already given, that the level of Company B's culpability was so low as to relieve it of any penalty. I also do not accept that no good purpose would be served by imposing a penalty. Not to impose a penalty in these proceedings would send quite an inappropriate signal about the seriousness with which parliament and the community view breaches of the OH&S Act. Moreover, Company B was putting on a play at which it expected between 500 and 600 people to attend at each performance. The performance was to be staged in Ms Healy's words "In an almost derelict venue." Company B had control of and responsibility for the site. Temporary seating was erected. The integrity of that seating structure was central to the safety of employees and members of the public using it. Company B did not ensure that safety by ensuring a Structural Engineer was satisfied that the seating stand met the necessary safety standards.

69 Mr Phillips referred to the principle of parity in sentencing as did Mr Cahill. I am, of course, aware that charges have been laid against two other defendants in connection with the collapse of the seating stand. Those charges are yet to be heard so the issue of parity does not yet arise. I think the point Mr Phillips was concerned with was not so much parity but the 'sense of injustice' Company B might feel given that the Council was not charged with any offence in relation to the collapse. I have already indicated that I have taken this factor into account in arriving at a penalty.

70 Mr Phillips raised the issue of totality and relied on Moore v E W Cox Pty Ltd (1990) 37 IR 145 to argue that the offences should be viewed as one offence and that it was therefore appropriate to impose a single penalty and not two penalties. Mr Cahill did not demur from applying the totality principle.

71 It is the case that Company B is charged with two offences arising from the same set of facts and the gravamen of the offences is substantially similar.

72 In Pearce v The Queen (1998) 194 CLR 610 at 623 a majority of the High Court held that to the extent to which two offences of which a person is convicted contain common elements it would be wrong to punish the offender twice for the commission of elements which are common. The majority (McHugh, Hayne and Callinan JJ) said "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." (at 624).

73 In Mill v The Queen (1988) 166 CLR 59 the High Court referred with approval to the following quote from Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56- 57: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'." 74 It is appropriate in my view to apply the principle of totality in relation to the two offences with which Company B has been charged and in respect of which it has been found guilty on both counts.

75 I would consider an appropriate penalty to be $30,000 for each of the two offences considered separately. However, that would result in a total fine of $60,000 which I would regard as excessive given my assessment of the level of culpability of the defendant which I put at the low end of the scale. By applying the principle of totality, I consider an appropriate fine to be in the aggregate an amount of $40,000 comprising a fine of $20,000 for each offence.

76 I make the following orders: 1 The first defendant is convicted of the offence under s 15(1) of the Occupational Health and Safety Act 1983 in matter IRC99/4821;

2 The first defendant is convicted of the offence under s 16(1) of the Occupational Health and Safety Act 1983 in matter IRC99/4820;

3 The first defendant is fined the sum of $40,000 comprising a fine of $20,000 for each offence with a moiety to the prosecutor.

4 The first defendant shall pay the prosecutor's costs as agreed or assessed.

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