4 As to the objective seriousness of this offence, Mr Parker submits that the court should give consideration to the circumstances in which the variation to the contract was made. He submits the defendant always issued a Method Statement in relation to work undertaken by the company. Such a Method Statement was prepared in respect to the original scope of the work and identified all the appropriate safety supports required for site safety. The defendant accepts the findings of the court that the defendant failed to create a Method Statement in respect of the variation, but Mr Parker submits the court should consider this breach as an isolated deficiency in the activities of an otherwise safety conscious defendant. He submits the evidence reveals the present breach represents a random failure by the defendant to adhere to its otherwise careful and conscientious standards.
5 In making this submission, Mr Parker relies on the fact that Mainbrace did not have exclusive control of the hanging area over which the respondent ceiling was erected. He submits the absolute nature of the obligation under s16(1) of the Act should be ameliorated by reason of the defendant's limited ability to control the activities of others at the site and inability to control the effect of those activities. He relies on evidence that the suspended ceiling was intended to be trafficable; that the ceiling was used regularly; that there were direction signs as to access which were complied with by the injured workmen; that the ceiling was poorly constructed twenty years ago prior to the accident and the responsibility of Chisholm, the occupier of the site, must be weighed into the court's consideration as to the gravity of the offence. The defendant submits if there was potential compromise to the inherent integrity of the suspended ceiling, Chisholm or Pinacle had a responsibility to appraise Mainbrace, the defendant of same.
6 Relevant in these considerations however is the finding of the Court that the hanging area became a Mainbrace place of work at the time of the variation, therefore Mainbrace was responsible to inspect, warn and instruct as to the risks to safety of this place of work for its undertaking. Further its initial assessment of the worksite, while it may have prepared a Method Statement, contained no real safety assessment. There was evidence that a "walk through" of the site was made but safety issues were not addressed. There was certainly no site safety assessment when the variation was made by this Head Sub-contractor with its electrical sub-contractor, Kennedy-Taylor.
7 In assessing the objective seriousness of the breach pleaded against Mainbrace, the evidence of Mr Doring, their employee, who ordered the supports to the hanging ceiling be removed without checking whether anyone was up in the ceiling and did so while the acrow props had become weight bearing of the hanging ceiling is relevant. The fact the acrow prop became weight bearing was not however within Mr Doring's knowledge. Acknowledgment must be also given to the fact the dust suppression wall was removed carefully in the appropriate manner using the acrow props, etc. However, it was Mr Doring, an employee of Mainbrace who authorised the work to be done in the hanging ceiling and was aware the injured workers required access to it.
8 While the engineering evidence revealed the ceiling was inherently unsafe, the defendant as the Head Contractor nonetheless had a responsibility to ensure it inspected this ceiling when it became its place of work and its failure was to adequately assess the risk to safety of persons at its place of work.
9 Mr Parker submits Mainbrace's conduct was mere inadvertence and the breach exhibits a minimal degree of culpability. The court does not accept this submission. However, it does take into account that this ceiling was clearly not structurally sound even at the time it became a Mainbrace place of work. On all the objective evidence I find the breach a serious one.
10 As to the subjective features of the breach, Mr Gregory Allan Scott gave evidence. He is employed as a Construction Manager for Mainbrace. He has been so employed since 1995. He revealed Mainbrace is a medium sized building company which contracts projects to the value of $100,000 to $30 million. The company has a turnover of $50 million to $60 million per year. Mr Scott produced a financial document of the company which verified the turnover of the company although there was some argument about how the taxable profit revealed in it was derived.
11 Mr Scott also tendered a document outlining the management structure of the company, his position in it and that of others named in the litigation. His evidence was the company, since the accident, has implemented a full Safety Management Review. After successful tender it attends at the worksite for a full risk assessment of the site. This assessment incorporates Method Statements for the task as a whole and addresses practical tasks, site inductions, safety committee meetings, the recording of certificates and qualifications of operators and a monthly safety report of lost time and lost hours for ongoing work evaluation. This comprehensive document is adjusted to the particular needs of each contract and each worksite.
12 The company has just completed another stage in the upgrading of its safety programme and tendered modifications to its Safety Management plan. The overall plan now reflects the expressed concern of the company to ensure safety on its worksites. A risk assessment is now made on all site activities. All functions required for a contract are listed, all training planned; hazardous substances are identified; the code of practice to be followed is identified; material storage is identified; major plant and equipment required are identified; personnel protection is particularised; equipment requirements are noted as are hours of work; plans for protection of the public are made; fire prevention is planned and there is acknowledgment of the required engineering reports. Access and egress to worksites and the procedure for rubbish removal are also addressed. Potential risks are now identified and procedures put in place to meet same.
13 Mr Scott is the person responsible at senior management level to ensure the Risk Assessment is completed thoroughly. Before the court there was placed comprehensive documentation related to the Management Plan.
14 When asked whether the Management Plan met the circumstances identified in this case where there was a variation to the original contract, Mr Scott assured the Court, although the plan does not directly reflect what is to be done when there is a variation, such variations would require a further site risk assessment is undertaken. I accept Mr Scott's assurances of same although such a circumstance should addressed in the documentation.
15 There is no suggestion of an early plea in this matter and as I have noted, the defendant conducted a rigorous defence to the charge. The defendant has no prior convictions and importantly it has been operating in the building industry for many years, which industry is identified as a high risk industry.
16 In submissions as to the consideration of penalty, Mr Parker submits the court should give consideration to the fact that Chisholm, the occupier of the site, was not charged. He relies on Nesmat Pty Ltd and WorkCover Authority of NSW ((1998) 87 IR 312) where the court expressed a view as obiter:
The absence of prosecution of other parties, on whom the appellant has reasonably relied, underlies the cogency of argument presented on appeal that the sentence gives rise to a justifiable sense of injustice.
17 As Walton J, Vice President said in WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Ltd & Anor (unreported, 4 February 2000, IRC1104, 1106 of 1998):
The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken.
This approach is consistent with the approach in Nesmat. . . . Nothing in the decision in Nesmat warrants the adoption of the further approach contended for by the defendants that the Court should assess, in the context of the sentencing of the defendants, whether a prosecution should have been continued against (others). Nor is it consistent with the principle of parity or the abovementioned decisions for the Court to embark upon an inquiry in sentencing proceedings which, in substance, would require the Court to make specific findings as to the culpability of such entities under s17 and the 'nature and quality' of any offence committed by them.
Embarking upon an inquiry as to whether prosecutions should have been commenced or continued against various entities, or whether those prosecutions may have been successful, would involve the Court conducting a procedure which would be, as the prosecutor submitted, tantamount to conducting a trial of the other entities. In any event, the Court would, if it adopted the contentions of approach by the defendants, be required to make unqualified adverse findings concerning an entity which had no opportunity to answer the allegations made against it.