WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited

WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited - [2005] NSWIRComm 425 - NSWIRComm 2005 case summary — Zoe

[22]

(c) type of work that might be carried out adjacent to the charged gas supply line. The Particulars of the charge are: 1. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (KSU). 2. On or about 8 November 1995 Abigroup engaged the Defendant to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited (AGL) to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended the KSU and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant failed to have appropriate persons at the KSU to liaise with Princi concerning the disconnection of the gas supply line. 8. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated. 9. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 10. The Defendant failed to adequately protect the charged gas supply line on the KSU. 11. The Defendant failed to adequately identify the charged gas supply line on the KSU. 12. The Defendant failed to adequately mark the charged gas supply line on the KSU. 13. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 14. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.

[81]

On or about 8 November 1995 Abigroup engaged the Defendant to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 3. Prior to the demolition of the Building a request was made to AGL Gas Networks Limited (AGL) to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant was aware of where the gas supply line had been cut and capped. 8. The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995. 9. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building. 10. The Defendant used a stake to mark the gas supply line when it became exposed. 11. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were operated. 12. The Defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line. 13. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 14. The Defendant failed to adequately protect the charged gas supply line on the KSU. 15. The Defendant failed to adequately identify the charged gas supply line on the KSU. 16. The Defendant failed to adequately mark the charged gas supply line on the KSU. 17. The Defendant failed to have the demolition site examined by the competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 18. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.

[222]

The prosecutor's case The hearing again proceeded ex-parte. Mr Skinner of counsel, appearing for the prosecutor, raised the utility of imposing a sentence in a case where the defendant is in liquidation, but submitted that principles of deterrence, especially general deterrence, given the grave nature of the offences in question, required that sentences be imposed. Reliance was placed on the approach adopted by Boland J in Inspector Jones v T Helsby & Sons Contracting Pty Ltd (No 2) [2004] NSWIRComm 57 and Inspector Atkins v Network Production Personnel Pty Limited [2004] NSWIRComm 71. I accept the views his Honour expressed and propose to impose sentences, notwithstanding the liquidation of the defendant. 4 It was submitted that, given the various entities involved in the relevant events and the various charges which had resulted in convictions, questions of parity in sentencing here arose for consideration. The risks to safety in question were very serious, leading finally to an explosion in the gas system at Kogarah Railway station, in which a number of people were injured, two were killed and many others put at risk. The sentencing judgment given by Kavanagh J in WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Limited (2003) 128 IR 204 was relied on in several respects, although it was noted that the total penalties then imposed were reduced on appeal. (See Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (2004) 135 IR 317.) 5 It was also submitted that the maximum penalty in each case here is $500,000. (See Kavanagh J in Abigroup at [46] to [47]). The defendant had a number of prior convictions. In the circumstances s 51A of the Act was not applicable (see Kavanagh J in Abigroup at [48]). 6 It was further submitted that consistently with the view taken by Kavanagh J in Abigroup and accepted on appeal, that the most serious of the offences here in question were those which occurred on 4 December and the least serious, those committed on 10 November. The sentences finally imposed for the offences with which Abigroup was convicted in relation to the same three periods was $300,000 each, in respect of the 10 November offence; $350,000 each for the 10 November - 4 December offences and $400,000 for the 4 December offence, a total of $1.7 million. Application of the totality principle reduced the penalties to $250,000 and $300,000 in the case of the first four offences a total of $1,500,000. On appeal the fines were reduced to $175,000 for the 10 November offences; $225,000 for the 10 November to 4 December offences and $300,000 for the 4 December offence. The total penalties imposed were $1,100,000. 7 It was argued that these penalties were imposed after application of the principle of totality to both the three periods in question and to the charges brought in respect of each of these periods, under both s 15 and s 16 of the Act, given the overlap in the charges which arose in these two ways. The Full Bench approached the application of the totality principle with greater leniency than Kavanagh J. A similar approach was adopted in relation to another offender charged in connection with the same events in WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2003] NSWIRComm 421, where however, the penalties there imposed were increased by the Full Bench on appeal - WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323. It was accepted that a similar approach to totality must be adopted here. 8 It was also submitted that consistently with the parity principle, given the seriousness of these offences, substantial sentences must also be imposed, albeit with discounts for totality. That Abigroup was convicted in respect of five offences rather than six, (having no employees on the site on 4 December), would also affect the total penalty imposed in this case. 9 The prosecutor urged that account be taken of the fact that Abigroup was the head contractor on site, who had greater responsibility for the whole condition of the site, compared to this defendant. Also to be taken into account, however, was that this defendant was doing the actual work in question, which required the cutting off of the gas which led to the gas pipe being breached on 4 December, by work it was performing that day. In these circumstances, the culpability of this defendant was argued to be greater than that of Abigroup. Also of relevance was that in the proceedings before Kavanagh J, Abigroup brought forward evidence of subjective features which were taken into account in assessing penalty. There was no such evidence here. Although it was accepted that another matter relevant to be taken into account was the fact that this was a smaller company than Abigroup and that it was in liquidation. It followed that specific deterrence did not arise as an element to be taken into account in determining sentence. 10 On the evidence, it was submitted that the consequences of the risk here in question had crystallised in a severe accident, with very serious consequences for a number of people in the vicinity. The offences were serious and warranted the imposition of heavy penalties. Foreseeability was relevant, particularly in relation to the inadequate steps taken to mark a live gas pipe on a building site. The marker was moved, so that there was nothing to guide or warn the tractor operator who breached the pipe on 4 December. The idea that the steps taken had accorded with industry practice at the time was dealt with by Kavanagh J in Abigroup at [22]. A similar approach was urged here. Consideration

[223]

11 In the March judgment, I noted that while of the view that not all aspects of the particulars of each offence charged had been made out, I was of the view that the offences had been proven to the requisite degree. I approach the sentencing process with those conclusions in mind. 12 The starting point for the determination of the sentences to be imposed, consistently with the Crimes (Sentencing Procedure) Act (1999), is the nature and seriousness of the offences proven. On the evidence, there can be no doubt of the seriousness of the offences in question. The charges were concerned with the risks to safety to which employees and others were exposed at various junctures, when the defendant took entirely inadequate steps to deal with a live gas pipe on a construction site, situated at a major metropolitan railway station. The gas pipe was cut off at a point within a construction site, where heavy machinery was to be operating, demolition work was to be undertaken and construction to follow. The steps taken plainly did not ensure safety. Given this deficiency, the clearly inadequate steps taken to mark and identify where the live pipe was situated on this site, as work was undertaken between 10 November and 4 December, led perhaps unsurprisingly, to the point where the live gas pipe lay in the ground, its position entirely unmarked. On 4 December, when most fortuitously, not many people were working on the site, the pipe was disturbed during excavation work. The resulting gas leak and the explosion which followed led to the death of two people and the injury of others. The consequences of the inadequate steps taken by the defendant could plainly have been even worse. I am entirely satisfied, however, that these offences fell at the upper end of the spectrum and that this must be reflected in the penalty imposed. In terms of culpability, I also accept, overall, that this defendant had greater responsibility for those events, than did Abigroup, having itself taken dangerous steps and failed to take necessary steps to ensure safety at the site, rather than having merely supervised the work in question, as head contractor.

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