WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison

PROSECUTOR: Mr P Skinner of counsel SOLICITOR: Mr N A Correy LEGAL REPRESENTATIVES: Moray & Agnew Solicitors

DEFENDANT: Mr Morrison (self represented)

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

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR FARRELL) v ROSS COLIN MORRISON. PROSECUTION UNDER SECTION 16(2) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 1983. Judgment [2002] NSWIRComm 27 Introduction 1 This matter concerns a prosecution by Inspector Anthony Farrell of the WorkCover Authority of New South Wales ("the prosecutor") of Mr Ross Colin Morrison ("the defendant") alleging a breach of s16(2) of the Occupational Health and Safety Act 1983 ("the Act"). Section 16(2) of the Act imposes the obligation on a self-employed person to "ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work."

2 At the relevant time, the defendant carried on a business as a licensed swimming pool builder. The prosecution arose out of the tragic death of a three year old boy who drowned in a partially completed swimming pool being constructed at a site in Port Macquarie. 3 The charge, contained in the summons for prosecution, was in the following terms: On 23 May 1998 at a swimming pool construction site at 62-64 Commodore Crescent, Port Macquarie in the State of New South Wales the defendant being a self-employed person did fail to ensure that persons not in his employment, more particularly, Jack Liam Gaul, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while those persons not in his employment were at the defendant's aforesaid place of work contrary to section 16(2) of the Occupational Health and Safety Act 1983.

4 The particulars of the charge were as follows: 1. The defendant was at all material times a self-employed person carrying on business as a licensed swimming pool builder.

On 22 September 1997 the Hastings Council ("the Council") approved an application for the construction of a swimming pool at 62-64 Commodore Crescent, Port Macquarie in the State of New South Wales ("the site") on behalf of J. and E. Hollingsworth ("the owners").

On 24 October 1997 the Council approved an application from the owners to construct a new dwelling at the site.

The Council granted approval in respect of the swimming pool construction at the site subject to a number of conditions including the following: (i) The pool is to be separately enclosed in accordance with the requirements of the Swimming Pools Act , 1992 with a safety fence of a design approved by council in accordance with AS1926-1986. (ii) The pool is not to be filled with water until such time as the fence is erected or other measures taken to prevent entry.

On 15 May 1997 the owners contracted with David Schrader Homes ("the building contractor") to construct a residential dwelling on the site.

On 2 November 1997 the owners contracted with the defendant to construct a swimming pool on the site.

Between 8 December 1997 and 20 December 1997 the defendant completed construction of the pool on the site to the extent that it could be practically completed at that time given the state of other building works on the site but did not complete installation and connection of any filtration system at that time.

Following partial completion of the pool contract work on or around 20 December 1997 the defendant filled the pool with water to a level of 1.2 metres in the deep end and to approximately 600 millimetres in the shallow end.

The defendant left the site for an extended period from about 20 December 1997 pending other works being carried out at the site by the building contractor.

Prior to leaving the site the defendant covered the swimming pool with F62 reinforcing steel mesh which was tied together to form one complete square and also supported by several lengths of timber to prevent it falling into the pool.

On 22 February 1998 the defendant observed the mesh covering the pool to be still in place.

On a date unknown between 22 February 1998 and 20 April 1998 the mesh covering the pool was removed by the building contractor in order to enable completion of concreting around the pool area prior to tiling work.

On or about 20 April 1998 Sean O'Brien, the building inspector employed by the Council, attended the site to make a wet area inspection and advised Bruce Myers, the carpenter engaged by the building contractor to have the building contractor cover the pool or contact him.

On 22 April 1998 the defendant went to the site and observed the pool to be uncovered and saw the mesh had been removed and left lying next to the boatshed.

On or about 22 April 1998 the defendant removed the mesh from the site.

In or about the middle of May 1998 the defendant returned to the site and carried out the installation of the pool filtration system and observed that the pool remained uncovered at this time.

On dates unknown between 22 April 1998 and 25 May 1998 one of the owners, Jack Hollingsworth, visited the site and observed that the pool was uncovered.

On 4 May 1998 the council building officer, Sean O'Brien, visited the site again and observed that the pool was uncovered.

In or about early May 1998 Raymond John Gaul and Barry Pharo ("the tilers") were engaged by the building contractor to carry out tiling work at the site.

The tilers commenced work at the site on 23 May 1998 at about 7.30am.

At about 8.45am the wife of one of the tilers, Wendy, dropped off their three year old son, Jack Liam Gaul ("the deceased"), at the site into the care of Raymond John Gaul.

Between 9am and 9.20am the tilers, along with the deceased, went for morning tea at a McDonalds Restaurant returning to the site around 9.20am.

Shortly after returning to the site Raymond Gaul had a conversation with the owners out at the front of the site in relation to the layout of the front patio at which time the deceased was present and playing around the yard in view of the owners and Raymond Gaul.

After the owners left the site and Raymond Gaul resumed grouting in the front foyer. He shortly afterwards realised he could not hear the deceased playing and making noises. He then walked into the lounge room and could see the deceased floating face-down in the swimming pool.

Raymond jumped into the swimming pool and lifted the deceased out the water and called for help.

Barry Pharo, the other tiler, assisted and an ambulance was called.

An attempt at resuscitation of the deceased was made by neighbours and shortly afterwards by ambulance officers.

The deceased was taken to hospital by ambulance but was not able to be resuscitated and pronounced dead shortly after 11am on 23 May 1998.

The conditions of the Council's building approval in respect of the swimming pool had not been met in that: (a) An approved safety fence was not erected. (b) The swimming pool was partly filled with water. (c) Other measures to prevent entry to the swimming pool were not in place and the defendant failed to ensure compliance.

At all material times the site constituted a place of work.

The defendant: (a) Failed to ensure that the swimming pool, while substantially filled with water, was properly covered or fenced. (b) Removed the metal mesh covering from the pool and took it from the site leaving it in a dangerous condition without such covering. (c) Failed to ensure that proper fencing was erected to prevent access to an unprotected swimming pool. (d) Failed to comply with the conditions of the Council's building approval to ensure fencing was erected before the swimming pool was substantially filled with water. (e) Failed to comply with the Council's building approval by not taking any other measures necessary apart from fencing to ensure that the pool was safe.

5 Summonses were also issued in relation to the same accident against a company known as Jamaryl Pty Ltd, of which the defendant was the sole shareholder and director, charging an offence under s16(1) of the Act (Matter No. IRC 1663 of 2000) and against the defendant, as a director of Jamaryl Pty Ltd, charging an offence under s50 of the Act (Matter No. IRC 1662 of 2000). These two summonses were dismissed at the conclusion of the evidence in these proceedings when the prosecutor did not adduce evidence in support of those charges. In any event, the evidence established that the defendant entered the contract to construct the pool in his own right rather than as a representative of Jamaryl Pty Ltd. 6 Separate proceedings were commenced against the principal building contractor at the site, Mr Carl David Schrader under ss16(2) and 17(1)(a) of the Act (Matter Nos. 1659 of 2000 and 1660 of 2000 respectively). Those prosecution proceedings will be the subject of a separate judgment issued concurrently with the judgment in these proceedings. 7 These proceedings were heard together with the summonses issued against Mr Schrader. A plea of not guilty was entered on behalf of both Mr Schrader and the defendant at the outset of the hearing. However, at the commencement of the third day of the hearing, Mr A Quinlivan of counsel, who appeared for Mr Schrader, entered a plea of guilty in relation to the offence charged under s16(2) of the Act. By consent, the prosecutor discontinued the prosecution under s17(1)(a) of the Act against Mr Schrader (Matter No. 1660 of 2000) on condition that no further proceedings be brought in relation to the matter. The proceedings against Mr Schrader were then stood over to a date to be fixed for sentencing, following the determination of the question of culpability in these proceedings.

8 The proceedings then continued to judgment on culpability only in relation to the charge brought against the defendant. Judgment was delivered on 19 December 2001: WorkCover Authority of New South Wales (Inspector Farrell) v Ross Colin Morrison (No.1) [2001] NSWIRComm 325. The defendant was found guilty of an offence under s16(2) of the Act. The proceedings were stood over to a date to be fixed for the purposes of sentencing.

9 Both matters, that is these proceedings against the defendant (Matter No. IRC 1666 of 2000) and the prosecution against Mr Schrader (Matter No. IRC 1659 of 2000) were listed for hearing regarding sentence on 5 February 2002, although the sentencing hearings were conducted separately. Both the defendant and Mr Schrader were self-represented. Upon the hearing of the matters on that day judgment on penalty was reserved.

Facts as Found in Morrison (No.1) and Findings Otherwise Arising From Evidence

10 The prosecution arose out of a project undertaken by the defendant to construct a swimming pool at domestic premises in Port Macquarie. The pool was being constructed concurrently with the construction of a new dwelling at the property. Construction of the dwelling was being undertaken by Mr David Schrader, assisted by a number of subcontractors.

11 The defendant signed a contract with the owners of the property (Mr and Mrs Hollingworth) to construct the pool in August 1997. Construction of the pool commenced on 8 December 1997 and was substantially completed on or around 19 December 1997. Upon completion of the project, the pool was partly filled with water. This was necessary as a result of the type of pool which had been installed. The defendant arranged for steel mesh to be placed so as to cover the pool whilst work continued on the house. Some time before the date of the accident, the mesh was removed by Mr David Schrader and Mr Bruce Myers (a sub-contracted carpenter) in order to complete work around the pool. The mesh was not subsequently replaced.

12 On Saturday, 23 May 1998, two sub-contracted tilers were working at the site, namely, Mr Barry Pharo and Mr Raymond Gaul. The two sub-contractors commenced work early in the day tiling sections of the interior of the house. At approximately 9am, Mr Gaul's wife brought their three year old son, Jack, to the site to be cared for by Mr Gaul whilst he continued working. Mr Gaul and Mr Pharo subsequently left the site, together with the child, to obtain food from a nearby McDonald's restaurant. Upon returning, they consumed the food and Mr Gaul and Mr Pharo recommenced work whilst the child played around the house.

13 At approximately 10.30am, Mr Gaul noticed that he could no longer hear the child playing. He went to the rear of the house where the pool was situated and found the child floating face down in the pool. Mr Gaul jumped in the pool and removed the child from the pool. He called for help and Mr Pharo ran out onto the street to obtain assistance. The site was attended by neighbours who attempted to resuscitate the child. An ambulance later arrived and further attempts were made to resuscitate the child. Tragically, the child did not regain consciousness and was pronounced dead at hospital shortly afterwards.

14 In Morrison (No.1), the Court, although not strictly necessary for the purposes of establishing culpability, found that the child had obtained access to the pool area through the inside of the house via sliding doors at the rear of the premises.

15 The main factual controversies that were determined in Morrison (No.1) related to the uncovering of the pool and what arrangements, if any, were made to ensure that the pool was re-covered after the requisite work on the immediate surrounds of the pool were complete.

16 Both Mr Myers and Mr Schrader conceded that they had removed the mesh covering without consulting the defendant. Nor did they notify him that the mesh covering had been removed from the pool (although Mr Schrader gave evidence that he subsequently advised the defendant of a communication from a council inspector regarding the covering of the pool). Both men gave evidence of it always having been their intention to replace the covering over the pool, but that the defendant had removed the steel mesh from the site before they could do so.

17 The defendant became aware that the mesh had been removed from the pool when he visited the site on 22 April 1998. The defendant's evidence was that he was contacted by Mr Schrader, at or about 19 February 1998, in relation to some piping which needed to be moved to allow concreting on the immediate surrounds of the pool to be completed.

18 In his evidence in chief, the defendant stated: On Sunday 22 February 1998, I moved the pipes and I was there from 7.30 to 9am. Jack Hollingworth was in attendance while I was there. I at no time went back to the site or indeed was called to the site by any person until Wednesday 22 April and the reason for going there at that time was I had concluded a service call at a property a number of doors up at number 88 Commodore Crescent and as I had not heard from anybody in regards to the completion of the house and indeed the cleaning up of the pool, I just called in to see where things were up to. At that time I noticed the mesh covering on the pool had been removed. It was down on the public thoroughfare next to the canal, waters edge.

I inquired with Mr Bruce Myers, who seemed to be the only person on site at that time, however, there may have been people inside which I didn't see at the time. Mr Myers said to me - so I inquired of Mr Myers what he was doing in relation to having the mesh down on the canal. In other words, to my consideration it had been discarded, the mesh was off the pool at that stage. He said they had matters in hand in regards to the covering of the pool or making the pool safe. I said to him "Do you need this mesh at all?" He replied, no.

I considered where it was at that stage dangerous in relation to where it was positioned so I removed it from the site upon the knowledge that they had - Mr Myers had taken other steps to provide some sort of covering for the pool or indeed fencing. However, at that time the house was at a situation where it was at lock-up stage. It had the roof on it, all the doors and windows were in place. I noticed that the doors had sliding screen doors like amplimesh type thing safety screens on them at that stage and my knowledge of the code as regards to swimming pool fencing on the canal and having been involved in the swimming pool industry for over 18 years, I considered that the pool was in compliance at that stage with the Swimming Pools Act and indeed Hastings Council's regulations.

19 The defendant indicated, under cross-examination, that he considered at this time that the builders had assumed responsibility for the safety of the pool. Under cross-examination, the defendant stated: Q. … what I am suggesting to you is whatever conversation did or did not take place with Mr Myers you are saying to this court, are you not, that the topic of re-covering the pool arose with Mr Myers, you are saying that, aren't you. A. Yes.

Q. And therefore it clearly was something that you considered at the time that you visited the site, 22 April 1998, that is the necessity to re-cover the pool? A. That is correct …

Q. And indeed really that is how you see your defence, is it not, that it was not your responsibility, it was the builder's in relation to that site and that pool being uncovered? A. At that particular time I did. When I originally installed the pool I took those steps and those steps were sufficient to prevent entry, which is stated in number 2 of the application.

20 Mr Myers' recollection of the conversation with the defendant concerning the removal of the mesh from the pool differed considerably. He also stated that it was his intention to replace the mesh, but that the mesh had been removed from the site by the defendant. He stated that the defendant had offered that Mr Myers could use the mesh in the concreting, but that he had refused. He denied indicating to the defendant that he would re-cover the pool. When cross-examined by the defendant, Mr Myers stated: Q. When I came that day to remove the mesh down by the boat shed where I saw it, there were two pieces down there and one piece possibly somewhere else because there were three pieces there altogether. I spoke to you, not at length, but I spoke to you in regards to what was the reason for the mesh being down there. Do you recall that? A. I don't recall you mentioning the reason for the mesh being down at the bottom. The only area I remember the mesh being is between the pool and the boat shed on that same level.

Q. So you do not recall the content of the conversation being in regards to the covering of the pool? A. No, sorry.

Q. So you do not believe that I would have said something in relation to the mesh if I didn't want the pool re-covered? A. I don't recall anything like that. I mean the only thing I can recall was that you asked if we wanted to use the mesh on the concrete. That was my understanding of the conversation and obviously, no, we didn't want to use the mesh.

Q. You do not recall me saying that you could have the mesh to re-cover the pool or to take other steps to cover the pool if you didn't need the mesh? A. No, I can't remember that.

21 In Morrison (No.1) the Court made a finding that a conversation had taken place between the defendant and Mr Myers concerning the mesh. Further, the evidence of the defendant was accepted as to him having had the impression from that conversation that the builders had given consideration to the need to re-cover the pool.

22 However, the Court considered that "the most important aspect of this evidence" was that it established that the pool contractor was aware, on 22 April 1998, that the mesh had been removed from the pool. The defendant neither sought nor obtained any specific undertaking from Mr Myers as to the manner or timing of the covering of the pool or the taking of other steps so as to avoid access to the pool (which was, at the time, partially filled with water) at any time from 22 April 1998 to the date of the accident. The defendant could not suggest that he was given any undertaking that the mesh would be replaced on the pool because, by his own admission, he removed the mesh from the site on that day. It was also evident that the defendant took no further steps to ensure that the pool was re-covered or that any other suitable material was available for that purpose.

23 Another question arose from the evidence concerning the inspection of the site by Inspector O'Brien of Hastings Council. However, the Court accepted that an inspection had taken place and that a conversation had taken place between Mr Myers and Inspector O'Brien to the effect that the pool covering needed to be replaced and that this message had been passed to Mr Schrader by Mr Myers.

24 A further dispute arose in the evidence as to whether Mr Schrader had conveyed the Inspector's request to the defendant. Mr Schrader gave evidence that he 'ran into' the defendant on the streets of Port Macquarie a couple of days after his conversation with Mr Myers and conveyed the message from Inspector O'Brien that the pool should be re-covered. In evidence in chief, Mr Schrader stated: Q. Now did you have a conversation with Ross Morrison after that conversation with Mr Bruce Myers where you mentioned that Mr Bruce Myers had said to you in that regard? A. Yes.

Q. What did you say to Mr Morrison, as best you can recall? A. "Sean O'Brien has been on the site and he has required the mesh to be returned and put on to the pool."

Q. And is it your recollection that the time frame as to this which came from Mr Myers, in essentially around about mid April, is correct? A. Yes, approximately.

Q. I mean I have wrapped a few things up there but was it about mid-April that Myers spoke to you? A. Yes, it would have been.

Q. About how long after that did you have a conversation with Mr Morrison that you have just related? A. It would have been between one and three days.

25 Mr Myers gave evidence that Mr Schrader had informed him of the conversation with the defendant. The defendant denied that this conversation took place. The Court did not find it necessary, for the purposes of finding culpability on behalf of the defendant, to make any finding as to whether this conversation occurred. 26 For the purposes of sentencing the defendant, I still consider it unnecessary to make any determination of whether the purported conversation actually took place. It is clear that the mesh was initially placed over the pool by the defendant and that it was subsequently removed by Mr Schrader and Mr Myers. It is equally clear that the defendant became aware of this (indeed this was admitted by the defendant), and that having made such a discovery he personally took no step whatsoever to ensure that the pool was re-covered nor to ensure that the pool was covered by someone else.

27 One of the matters which loomed large in the defence brought by the pool contractor in Morrison (No.1) was his reliance upon Mr Schrader to ensure the pool was covered as he had 'control' of both the site and the workmen on it on an ongoing basis. It was submitted that it would not have been practicable for the defendant to have remained on site to 'police' the covering of the pool and that he was entitled to rely upon the builders to do so. 28 In Morrison (No.1) the Court accepted that it was not practicable for the defendant to remain on the site and police the covering of the pool. The Court considered that the defendant had left the brief earlier discussion with Mr Myers with the understanding that the builders would re-cover the pool. 29 The Court found that the pool site continued to be a 'place of work' for the defendant, as required by the Act, in that he had not completed his contract with the owners (there remained work to be done by him prior to the 'handing over' of the completed pool). Further, the defendant was not able to make out a defence under s53 of the Act. The consideration of the s53 defence mounted in Morrison (No.1) appeared in the judgment in the following terms (at [64] - [67]): As has been discussed, a significant submission advanced by the defendant was that the builders, Mr Schrader and Mr Myers, had assumed responsibility for the safety of the pool. That submission was advanced on two bases. Firstly, that the builders had assumed responsibility for the pool because they had removed the mesh in the first place. Secondly, that following the discussion with Mr Myers on 22 April 1998, the defendant was given at least an implicit assurance that the builders would take steps to ensure that the pool was safe. The defendant submitted that he was entitled to rely upon the builders. Further, the defendant submitted that it was not practicable for the defendant to make provision against the removal of the mesh. The defendant, it was contended, did not have control of the site or control of persons working at the site. It was also contended by the defendant that, given the nature of the site, it would not have been practical for him to have "policed" the site to ensure that the mesh was not removed.

Even accepting the defendant's version of events, which I have substantially done earlier in this judgment, I do not consider that this submission established that it was not reasonably practicable for the defendant to comply with the Act or that the risk was due to causes over which the defendant had no control and against the happening of which it was impracticable for the defendant to make provision. In the defendant's account of events, his conversation with Mr Myers was only brief and the defendant accepted that the effect of the conversation might not have been clear between himself and Mr Myers. The conversation was not such as to constitute an express undertaking to ensure that the pool would be covered and certainly did not involve any undertaking being sought or given as to the manner in which any replacement covering would be installed or the timing of such installation. Neither can the defendant suggest that he was given any undertaking that the mesh would be replaced because, on his own account, he removed the mesh from the site on the day. In my view, this conversation was not sufficient to discharge the reasonable obligations of the defendant to ensure that the construction of the pool did not create risks.

It was not reasonable for the defendant to take no further steps after 22 April 1998 to ensure that the mesh was replaced or some other cover or fencing installed on the pool. There were a number of measures available which were not only reasonably practicable, but which, in my view, constituted the minimum steps that should have been taken once the defendant became aware that the mesh had been removed. The defendant could have approached Mr Schrader, who was in control of the site, to clarify what steps were to be taken and to seek some kind of undertaking that the pool would be covered where possible. The defendant could have returned to the site soon afterwards to check that the builders had taken appropriate measures to cover or fence the pool. Furthermore, the defendant could have (whether in liaison with Mr Schrader or otherwise) himself replaced the mesh at the earliest possible time.

The defendant correctly pointed out that he had limited control over the site and persons working on the site. There were certainly limits to the measures that it would have been reasonable for the defendant to adopt so as to ensure that the pool remained covered and otherwise did not present risks to the health and safety of persons at the site. The defendant had completed the majority of his work at the site and could not reasonably be expected to be constantly present at the site to ensure that risks did not arise. However, this does not remove or diminish the fact that the defendant failed to take any steps to ensure that the pool remained covered, even after he became aware that the mesh had been removed. As has been discussed, there were a number of steps which were reasonably open to the defendant to take. The fact that the defendant could not remove all risks associated with the pool does not obviate his failure to take steps which were reasonably available.

The foreseeability of a risk to health and safety may be a consideration in assessing the practicability of a defendant taking measures to address the risk: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 at 259 and Cleary Bros at [87]. In my view, it was reasonably foreseeable that the covering placed on the pool by the defendant at the completion of the first stage of his work may have been removed or disturbed during the course of the building project. In any event, in this case, the defendant was actually aware of the risk and did, in fact, foresee the danger presented by the uncovered pool. Although the mesh was removed by Mr Schrader and Mr Myers without the knowledge of the defendant, he became aware of the fact that the mesh had been removed when he visited the site on 22 April 1998. The defendant conceded that on that day he was concerned with the danger posed by the pool. Having foreseen the risk, the defendant should have taken steps to address that danger. It was, in my view, reasonably practicable for the defendant to do so. 30 The defendant was convicted of the offence and the matter was stood over for sentence.

Submissions Submissions of the Prosecutor 31 Mr Skinner of counsel, who appeared for the prosecutor, submitted that it was appropriate to approach the sentencing hearing in this matter in the light of the facts as found by the Court in Morrison (No.1). 32 He submitted the principles for sentencing under the Act are well established; they firstly require the Court to determine penalty on the basis of an objective assessment of the nature, seriousness and gravity of the breach charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. 33 Mr Skinner submitted that the risk posed by the uncovered pool was not limited to children, who may be on the site, falling into the pool and drowning. There was also a danger that persons working on the site may fall and injure themselves, albeit that the danger of drowning may have been less severe. This risk was heightened by the fact that persons, children or otherwise, could gain access to the site from the street via the sides of the house and from the canal. This risk was the direct result of the failure of the defendant to ensure that the pool, when filled with water, remained covered or fenced off. It was submitted that this risk was readily foreseeable and that, as such, the offence was to be considered more serious. 34 It was submitted that, in the circumstances of this matter, it would be appropriate for the Court to consider the sentencing of the defendant as though there had been an application made pursuant to s10 of the Crimes (Sentencing Procedures) Act 1999. However, the prosecutor resisted such a course. Mr Skinner, in his submissions, emphasised the role that general deterrence ought play in the determination of sentence in these proceedings. It was submitted that modern building practices involving contractors and sub-contractors in varying capacities were a common feature on construction sites in this State and that it was common on sites, such as this, for responsibilities under the Act to remain unattended to or ill-defined. He submitted, the sentence imposed in these proceedings ought be of value so as to reinforce to people in this very common situation their responsibilities under the Act. 35 Mr Skinner submitted that the application of s10 of the Crimes (Sentencing Procedure) Act ought be limited in proceedings brought under the Act to "extraordinary and highly exceptional" situations: WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. Despite the limited means of the defendant, this was not an appropriate case for the application of that section. 36 The prosecutor did not seek to be heard in relation to parity. It was submitted that, in its view, the respective culpabilities of the defendants flowed not so much from the manner in which the pool initially became uncovered, but rather from the responsibility to remove the risk created once they had become aware of it. It was submitted that both defendants had various roles to play in relation to the work carried out on the premises. However, the fact remained that both defendants were aware the pool was uncovered for some length of time prior to the accident and took no steps to render the pool safe. 37 Mr Skinner acknowledged that Mr Schrader, having been responsible for removing the mesh covering the pool in the first place, was aware that the pool was uncovered some time earlier than the defendant, however, he submitted that such a distinction, on the facts of this case, ought not weigh heavily in the assessment of culpability for each of the defendant's. 38 Mr Skinner sought costs of the proceedings and a moiety of the fine to the prosecutor. Submissions of the Defendant 39 The defendant emphasised his expressions of remorse and contrition for the accident. 40 He submitted he had been involved in the pool building industry for some 20 years without incident. Further, throughout his career he submitted that he had always tried to conduct his business in accordance with the relevant legislative requirements. He submitted that "with hindsight" and the increased knowledge of the Act he had obtained since the institution of these proceedings, there were a number of features of his business that he would have altered so as to comply with the Act. Protective measures would have become a significantly greater priority, both in terms of ensuring they were put in place and in ensuring that those mechanisms were maintained. 41 The defendant submitted that he now had a significantly greater understanding of the requirements placed on employers and those in self-employ by the Act and what constitutes a persons 'place of work' for the purposes of the Act. He continued: Whilst this has been a harrowing experience, I have welcomed the opportunity to have learnt and benefited from this experience and fully believe that there is a real need and should be an increased awareness of the legislation in my industry and, in particular, in relation to self employed persons. 42 The defendant submitted that the tragic events which led to the institution of these proceedings have had a profound effect on many lives, including his own. He submitted that both he and his partner have suffered in both their professional and personal lives. As to his personal circumstances, the defendant submitted that the stresses that have been occasioned to both him and his family have resulted in the condition of his son, who suffers from schizophrenia, worsening and had resulted in the breakdown in the relationship and eventual separation from his partner; a relationship of some nine years. They now live apart. 43 As to his professional life, the defendant submitted that whilst his business as a pool construction contractor continued for a short while following the accident, at the time of hearing he had not installed a pool for some two years. Any income that had been received in that period from the business was limited to the service and maintenance of existing pools. At the time of the hearing, the defendant, by and large, did not work. He was the main carer for his mentally ill son. 44 The defendant submitted that his financial position was somewhat "precarious" and that he had an extremely limited capacity to pay any monetary order against him. Consideration 45 At the outset I should note that there was no application made by the defendant for the Court to invoke s10 of the Crimes (Sentencing Procedure) Act 1999. However, the prosecutor, noting the defendant's unrepresented status, properly, in my view, conceded that it would be appropriate for the Court to approach the determination of penalty on the basis that such an application had been made; although the prosecutor opposed such an application. I shall return to this feature of the matter after having considered the objective elements of the offence. 46 It is well settled that the primary determinant of penalty in proceedings under the Act is an objective assessment of the nature and seriousness of the offence: Lawrenson Diecasting Pty Ltd. I note the maximum penalty for the offence is $55,000. However, the starting point for such considerations must be to reiterate the observation that I made in Morrison (No.1): that is, that an uncovered and partly filled pool presented an inherent risk to persons on the site. The risk was amply demonstrated by the tragic accident that resulted in the death of a three year old child. The risk was not limited to the risk that children, who may be on the site, could fall into the pool and drown. There was also a danger presented to persons working at the site that they may fall and injure themselves, albeit that the danger of drowning may have been less severe. There was also the possibility of persons gaining access to the site from the street via the sides of the house and from the canal.

47 The risk so created was clearly 'reasonably foreseeable' and, as such, results of itself, in the offence being more serious in nature: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 (at [82]). That the risk in this case was actually foreseen, again is a matter which must further increase the seriousness of this offence. However, this will require some consideration later in this judgment. 48 The defendant submitted that the builders, particularly Mr Schrader and Mr Myers, had assumed responsibility for the safety of the pool and that the defendant was entitled to rely upon them to ensure that the pool remained safe. In Morrison (No.1) I considered this submission and rejected it as a basis for the defendant resisting the charge. As noted in Morrison (No.1), the defendant was correct to point out that the builders had responsibilities in relation to the safety of persons at the site. Indeed, in Morrison (No.1) I indicated that I considered the builders to have had a more direct control over the site as they were involved in construction work at the site on a continual basis at the time of the accident.

49 In the context of such a place of work, that is, a place of work in which numerous people are engaged in varying capacities and where "risks of injury may arise as a result of failings by a number of parties involved in an operation", it is, in my view, of the utmost importance to reiterate the extent of the duty cast by the Act upon employers and those who are self employed to ensure that their undertaking does not create a risk to the health and safety of persons, be they employees or otherwise, that may arise from that undertaking.

50 In short, the duty is to be proactive. This duty was, in my view, correctly and forcefully stated by Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995) (at p 18) (approved recently by a Full Bench in Profab (at [37]) and in Riley v Australian Grader Hire (2000) 103 IR 143 (at [15]): … the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

51 In WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25, delivered concurrently with this judgment, I considered the authorities that have attempted to reinforce, in the strongest possible language, the nature of the duty cast on employers and those in self employment. Those observations apply with equal force to the present matter and I adopt that discussion for the purposes of this judgment. 52 This duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. 53 I reviewed the authorities relating to the issue of an employers undertaking and place of work in Morrison (No.1) (at [47] - [61]), concluding that the pool remained a 'place of work' for the defendant at the time of the accident and that the risk arose from the defendant's undertaking. It is not necessary to again traverse that issue. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 433 - 437) and WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No.2) (2000) 99 IR 163 at [31]. 54 In this matter, as noted in Morrison (No.1), I consider that the building contractor had the more direct control over the workmen on the site, the work performed on the site and that he had such control on a continual basis up to and including the time of the accident. The defendant had taken steps to ensure that the pool was initially rendered safe by the covering of it with the steel reinforcing mesh. I accept his submission that it would have been impracticable for him to have remained on the premises to police the covering of the pool. However, the defendant knew the pool was uncovered at a time well before the incident and took no steps to remedy that situation. 55 In my view, a further aggravating feature extant in the case of the building contractor, and not present in the case of the defendant, is that it was he who actually removed the mesh covering. In so doing, it was his actions that directly gave rise to the relevant risk. That risk remained for some time before any notice was given to the defendant (even accepting the building contractor's statement that he passed on a communication as to the covering of the pool from a council inspector). However, balancing against that consideration must be the fact that the defendant was contractually responsible for the pool and it was his undertaking that was subject to the condition of the development consent to render the pool safe. Further, regardless of the actual terms of the conversation had with Mr Myers, it was the defendant who removed the steel reinforcing mesh from the site. 56 An additional feature particular to the defendant is his concession that the risk to safety was not merely reasonably foreseeable but was actually foreseen. Such a circumstance would normally result in a significant increase in the assessment of the seriousness of the offence. However, in the circumstances of the present matter, I consider that the level of foreseeability is so great as to warrant very little to be made of the fact that the risk was actually foreseen in this matter. 57 As in the prosecution against the building contractor, the prosecutor submitted that this was a case in which the notions of deterrence and particularly general deterrence ought loom large in the assessment of penalty. The principles associated with elements of deterrence were most recently discussed by a Full bench of this Court in Capral Aluminium (at [71] - [80]). I adopt that discussion for the purposes of determining sentence in this case. 58 The purpose of the Act is well known and often referred to in judgments of this Court; that is, the prevention, deterrence and punishment of breaches of health and safety requirements. I should once again reiterate my view, in accordance with what was stated by the Full Court in Capral Aluminium (at [72] - [74]), in cases such as this "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R v Radich [1954] NZLR 86 at 87, adopted by this Court in Capral Aluminium (at [72]). 59 It is "the fundamental duty of this Court" is to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]). 60 The defendant is guilty of the offence charged as it was unreasonable for him to have not taken any steps whatsoever to ensure that the relevant risk was removed from his place of work in circumstances where it would have been not only reasonably practicable but, in my view, would have required very simple steps to have been taken. I consider, having regard to this factor and the foregoing discussion of the comparative culpabilities of the defendant and the building contractor, that the defendant's culpability for the offence should be considered as being equal to that of the building contractor. 61 As to specific deterrence, the defendant initially indicated that he continued to work in the industry. However, this submission was withdrawn. I am satisfied that the evidence demonstrates that the defendant has effectively left the industry. Noting what was stated by the Full Court in Capral Aluminium (at [77]), in the light of these circumstances, I am satisfied that this is an 'exceptional circumstance' where there would be little utility in any penalty being imposed on the defendant for the purposes of specific deterrence. However, I do not consider that the circumstances are so exceptional as to warrant the notion of specific deterrence being entirely disregarded by the Court. 62 It is well established that any consideration of subjective features of a particular defendant must be subordinate to the nature and seriousness of the offence. However, as with the proceedings against the building contractor, there are, in my view, powerful subjective considerations that ought be taken into account in mitigation of the penalty that would otherwise be imposed for an offence of this nature. The defendant accepts that it was his responsibility to ensure the pool was rendered safe and consequently it was his failure, in part, which gave rise to the relevant risk. 63 The defendant submitted that the prosecution in these proceedings was important and that it would hopefully assist those involved in the industry of domestic construction in recognising the extent of their responsibility to ensure that their place of work was safe for both employees and those not in the employ of the relevant entities. I observed the defendant carefully in the making of this submission and I am satisfied that this concession was earnest and not merely some attempt to curry the Court's favour. It is a submission with which I most definitely concur. 64 The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 (at [50]): 50 It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201.

65 This approach was subsequently adopted in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 where the Full Bench of this Court stated (at [81] - [82]): Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at p 339); WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at p 333; and Profab Industries (49 NSWLR at p 714, 100 IR at p 76).

However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp 209-210, Wright J, President observed : ... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ...

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ... 66 I would reiterate what I stated in WorkCover Authority of NSW (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 (at 476): Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see Rahme (1989) 43 A Crim R 81 at 86 (See also Inspector William Hopkins v Michael Wherritt trading as MJ Wherritt Concrete Pumping Services [2002] NSWIRComm 16 at [51] and [60]). I consider that the financial circumstances of the defendant should result in a substantial reduction of the fine which would otherwise have been imposed by the Court. 67 As noted earlier, there are powerful subjective features in this case which, in my view, warrant a significant reduction in the penalty which would otherwise have been imposed. I have given serious consideration to the application of s10 of the Crimes (Sentencing Procedure) Act to the present circumstances. However, I decline to do so. I do not consider that this matter exhibits the extraordinary and highly exceptional circumstances as would warrant the exercise of the Court's discretion in this regard in favour of the defendant: Profab, Australian Grader Hire and Berrima Coal (at [166] - [202]. In particular, I consider that the objective features of this matter do not warrant the exercise of the Court's discretion in favour of the defendant under s10 of the Crimes (Sentencing Procedure Act). Further, I would reiterate what was stated above as being the fundamental duty of this Court. I consider the observations of Street CJ in R v Rushby [1977] 1 NSWLR 594 are apposite in the present circumstances (at 597):

If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. 68 Contrition, repentance and remorse after an offence are mitigating factors which may lead to a reduction in the sentence otherwise to be imposed: A M Hoipo & Sons Pty Ltd (at [64]); Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 (at [17]). I consider that the defendant is contrite and has demonstrated a high level of remorse. I have also had regard to the significantly adverse changed personal, business and professional circumstances of the defendant which arose as an aftermath of the incident: see Berrima at [201]. It is appropriate to take account of the defendant having assisted the prosecutor with its investigations. Further, I consider, on the evidence of the defendant, noting that there was no demur on behalf of the prosecutor, the defendant has otherwise operated as a good industrial citizen for a period of some 20 years without prosecution having been brought against him. 69 In addition to the above discussion as to the relative contribution of an offender to the risk giving rise to prosecution, and noting the defendants unrepresented status in these proceedings, I consider it necessary to consider notions of parity between any sentence imposed on the building contractor and the present defendant. Ensuring disparity in sentencing through considerations of parity is important to the administration of justice: Griffiths v The Queen (1997) 194 CLR 293 at 326 - 327; McDonalds at 434. 70 Justice Kirby in Postiglione v The Queen (1997) 189 CLR 295 described the principle of parity and the distinction between the concept of parity and totality in the context of the overall sentencing process, as follows (at 341): The sentencing judge must first reach a conclusion as to what seems to be the appropriate sentence having regard to the maximum fixed by Parliament for the worst case and the norm that is appropriate to the objective criminality of the case. The judge must then adjust that sentence, where appropriate, for the factors personal or special to the offender, discounted by any relevant considerations (for example co-operation with authorities or absence of remissions). But it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment. It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike. Or it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and appropriate". The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform. (See also McHugh J at 306 and 313) 71 The principle of parity was succinctly stated in the joint judgment of Dawson and Gaudron JJ in Postiglione (at 301 - 302) as follows: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in their being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. 72 In the present circumstances, the defendant has been charged under the same section of the Act as the defendant in another proceedings for a risk which emanated from the same factual scenario: see WorkCover Authority of New South Wales (Inspector Farrel) v Schrader [2002] NSWIRComm 25 delivered concurrently with judgment in these proceedings. As earlier mentioned, the culpabilities of the defendants in these sets of proceedings are relatively equal. The subjective features significantly differed as between the defendant and Mr Schrader only in one respect, that is, Mr Schrader entered a plea of guilty. The defendant should not be penalised for having insisted on his right to trial: Cameron at [12]. However, as discussed in Schrader, the defendant in that matter should receive a discount for the plea of guilty for the reasons there given, albeit at the lower end of any relevant scale. In the result, and applying the principles of parity, I consider that the subjective features of the matters require a different penalty for the defendant and Mr Schrader. The penalty for Mr Schrader should be marginally less than that of the defendant. 73 I consider that it is appropriate that the defendant be fined an amount of $10,000 and that the prosecutor have a moiety of the fine. 74 The final matter requiring consideration is the prosecutor's application for costs in the proceedings.

75 A Full Bench of this Court has recently considered the question of costs in summary prosecution proceedings under the Act before the Commission in Court Session in WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors [2001] NSWIRComm 244. I adopt the exposition of principle in that judgment (at [48] - [50]). In accordance with the discussion in Plastachem, the Court as presently constituted, by virtue of s14(1)(a) of the Supreme Court (Summary Jurisdiction) Act 1967, has the power to award costs in favour of the prosecutor. In this regard, the Court must exercise its discretion as to costs in accordance with what is in the Court's view 'just and reasonable'. 76 The prosecutor has made an application for costs in the proceedings and tendered a schedule of costs incurred separately for both these proceedings (that is for both the hearing on culpability and penalty) and the proceedings against the building contractor heard concurrently. The prosecutor seeks an order for the sum of $25,910.13 in costs against the defendant.

77 At the conclusion of proceedings, I heard brief submissions from the prosecutor as to the question of costs (both as to whether costs should be awarded and as to the quantum of costs sought by the prosecutor).

78 As earlier mentioned, the defendant was self-represented. He broadly raised an issue as to the amount of costs. Having reviewed the transcript of these proceedings, I am not satisfied that the defendant has had sufficient opportunity to address the question of costs. This is particularly so as the matter raises for consideration whether costs should be awarded and, in any event, whether the costs claimed may be too substantial (and, possibly, approaching costs on an indemnity basis).

79 In the result, I propose to reserve the question of costs for 28 days from the date of this judgment to enable the prosecutor to further consider the question of costs and then to discuss that matter with the defendant (or, if applicable, with his legal representative).

80 The prosecutor should file, within that time period, a short submission as to the outcome of that process and as to any further matters it may wish to put as to the question of costs. That submission should be served upon the defendant. If the issue of costs is resolved, the Court will determine the question by orders in chambers. In the event that the issue of costs is not resolved, then the defendant shall have 28 days thereafter to file any further submission in reply, in writing, that he may desire to put as to that matter. 81 I make the following orders:

1. The defendant is fined an amount of $10,000 with a moiety thereof to the prosecutor;

2. Costs are reserved until the receipt of further submissions from the prosecutor and the defendant as to that matter in accordance with this judgment.

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