WorkCover (Inspector Patton) v P & M Denton Building Constructions Pty Ltd and Provincial Homes Pty Ltd

PROSECUTOR: Mr G Phillips SOLICITORS: Carroll & O'Dea

DEFENDANT: Provincial Homes Pty Ltd LEGAL REPRESENTATIVES: Mr Shume of counsel SOLICITORS: Coleman & Grieg

DEFENDANT: P & M Denton Buliding Constructions Pty Ltd Mr Dalgleish SOLICITORS: John Cunningham Solicitor

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J DATE: 28 April 03 Matter No. IRC 3086/2002 Inspector John Patton v P & M Denton Building Constructions Pty Ltd Prosecution under s15(1) of the Occupational Health and Safety Act 1983.

Matter No. IRC 3087/2002 Inspector John Patton v Provincial Homes Pty Ltd Prosecution under s16(1) of the Occupational Health and Safety Act 1983. EXTEMPORE JUDGMENT NSWIRComm 171

1 I have two matters before me. The first, Matter No. IRC 3086/2002 involves a prosecution by WorkCover and more particularly Inspector Patton on its behalf concerning the defendant P & M Denton Building Constructions Pty Ltd.

2 The second, Matter No. IRC 3087/2002 also involves a prosecution by Inspector Patton on behalf of WorkCover in respect of the defendant Provincial Homes Pty Limited.

3 In relation to the decision I give today I will deal with each of the two defendants separately except to the extent where there is some commonality of approach between them.

4 The defendant P & M Denton Building Construction Pty Ltd entered a plea of guilty to the offence as charged on 16 September last before Haylen J. The offence involves a breach of s 15(1) of the Occupational Health and Safety Act 1983. The offence as expressed says that, on 21 May 2000, the defendant failed to ensure the health, safety and welfare at work of all its employees and in particular Mr Shannon Dallas and Mr Michael Rykee.

5 The particulars of the offence state that the defendant: (i) failed to provide or maintain a system of work that was safe and without risk to health for the purpose of installing pre-fabricated roof trusses at the said site; and (ii) failed to provide such information, instruction and training as was necessary to ensure the health and safety at work of its employees, in particular Mr Michael Rykee and Mr Shannon Dallas who were carrying out work at the site, the site being the address of the defendant, Provincial Homes Pty Limited at Lot 5, Honeyeater Drive, Blaxland.

6 In the proceedings before me the prosecution has tendered an agreed Statement of Facts and a number of photographs.

7 The photographs have greatly assisted me in understanding the layout of the site where the accident occurred, specifically the precise interconnection between the truncated trusses on which Mr Dallas was standing and the top cord of the hip truss that he was pulling on when he fell as disclosed in the Statement of Facts.

8 The Agreed Statement of Facts are as follows: (1) On 31 May 2000, the Defendant employed Mr Michael Rykee ("Rykee"), (a 19 year old apprentice carpenter) and Mr Shannon Dallas ("Dallas"), (a 22 year old carpenter) at the site. As at 31 May 2000 ("the accident date"), Dallas had been employed by the Defendant for approximately four (4) years and Rykee had been employed for approximately twelve (12) months. (2) On the accident date, there were four (4) carpenters employed by the Defendant working at the site. Those employees were Mr Phillip Denton ("Denton"), Mr Michael Cormack ("Cormack"), Dallas and Rykee. At all material times, Denton was the director of the Defendant. On the accident date Denton was acting as supervisor for Dallas, Rykee and Cormack. Dallas was acting as leading hand. Cormack was a second year apprentice. (3) On the accident date, Rykee, Dallas, Denton and Cormack were all involved in the process of erecting roof trusses on top of the wall plates of the wall frames of the building under construction at the site. Prior to the accident, Dallas and Rykee had accessed the top plate of the wall via a seven (7) foot step ladder, and had walked along the top plate of the wall frames to erect the roof trusses. (4) On the accident date, and prior to the accident, Rykee, Dallas, Denton and Cormack had erected and fixed the truncated girder truss on to the building under construction at the site. Two (2) end J1 jack trusses had also been positioned and fixed, as had two (2) hip trusses. The junction of the truncated jack and hip trusses had been fixed by nails at the top chord of the truncated girder truss. The first truncated truss (TS1) had been stood up and fixed to the top plates and the hip rafter. The truncated trusses TS2 and TS3 had not been fixed off, but were being held by Rykee and were in the process of being fixed off. (5) Immediately prior to the accident, Dallas was sitting on top of the first truncated truss (TS1) and was pulling the top chord of the hip truss towards him when the truss he was sitting on fell over, causing him to roll backwards and fall to the concrete floor slab below. Dallas fell a distance of approximately 4.3 metres to the ground below. Dallas received a cut to his head requiring nine (9) stitches, and a T-12 spinal injury resulting in Dallas becoming a paraplegic. (6) Immediately prior to the accident, Rykee had been standing on the top plate of the internal wall holding up the trusses (TS2 and TS3) for Dallas to fix off. The falling trusses struck Rykee on his right shoulder forcing him sideways. Rykee managed to use his left hand to catch the next set of roof trusses lying on the top plate to prevent himself from falling. Rykee then jumped down on to the concrete floor, and realised his right shoulder was severely dislocated. (7) At the time of the accident, Denton was fixing a truss into the top plate of the wall frame. Cormack was standing on a step ladder facing away from the centre of the trusses and was drilling a truss into position. (8) On the accident date, there was no system which prevented the Defendant's employees, including Rykee and Dallas, from being liable to fall from the position from which they were working whilst installing prefabricated timber roof trusses to the ground. (9) Prior to the accident date, no formal risk assessment had been carried out by the Defendant in relation to the erection of the roof trusses at the site. A work method statement had not been prepared by the Defendant in consultation with its employees before they commenced work on the site. There was a plan as to how to construct the roof. This method was not written or formalised, but was the Defendant's standard operating procedure. The roof to be constructed at the site was a standard design roof and was built in accordance with the Defendant's informal standard procedure. (10) On the accident date, there was no adequate system in place to ensure that the trusses were fixed securely so as to ensure that the trusses did not come loose or fall when the Defendant's employees applied pressure to them or rested on them while performing their duties. There were no "stand-up" joins for the trusses. (11) Prior to the accident date, Rykee and Dallas had not undergone any occupational health and safety induction training. (12) Following the accident date, the Defendant implemented new measures to ensure that the trusses were more secure and more strongly fixed during the erection process. New methods were used to train employees to check all points of securing the trusses, to ensure that extra blocks are used if fixing is inadequate and, to ensure that trusses are not straightened when it would be unsafe to do so. (13) On 31 May 2000, the Defendant, being an employer at the said site, contrary to section 15(1) of the Occupational Health & Safety Act, 1983 (NSW), failed to ensure the health, safety and welfare at work of all its employees and, in particular, Mr Michael Rykee and Mr Shannon Dallas, in that: (a) It failed to provide or maintain a system of work that was safe and without risk to health for the process of installing prefabricated timber roof trusses at the said site; (b) It failed to provide such information, instruction and training as was necessary to ensure the health and safety at work of its employees and, in particular, Mr Michael Rykee and Mr Shannon Dallas, who were carrying out work at the site;

9 On behalf of the defendant, I have before me an affidavit from Mr Phillip Denton. Mr Denton is the sole director of the defendant company. He was one of the four employees on site on 31 May 2000 and was in charge of his fellow employees. 10 It is relevant I believe to put the defendant's role and liability into context as far as this particular accident and the offence before me is concerned. I refer in this instance particularly to Mr Denton's affidavit and more particularly to the material contained in paras [14] through to [33] of his affidavit. None of that evidence was challenged by the prosecution.

11 I do not propose to repeat all that is contained in those paragraphs in this judgment. Suffice to say by way of a brief factual overview that, at the time of the accident, the defendant company had been contracted by Provincial Homes to erect timber frames and roof trusses at the work site of Provincial Homes at Blaxland.

12 Those roof trusses were provided by Provincial Homes to the defendant. The trusses had been constructed by Truform Frames and Trusses Pty Limited and were provided in a pre-fabricated form.

13 It seems that Mr Denton had had cause to complain about those particular trusses. He refers particularly in para [20] of his affidavit to aspects of those trusses, they being what he described as the 'flat top' as opposed to the 'stand up' type that he preferred to use. The differentiation between those trusses can more clearly be understood by reference to the diagram in annexure B of his affidavit.

14 Mr Denton identified what he sees as the three main causes of the accident involving Mr Dallas and Mr Rykee:

· At para [22] of his affidavit, Mr Denton states that the less stable nature of the fix in the type of trusses that he was using led to the actual truss giving way in the way that it did when Mr Dallas obviously placed some weight on it by pulling;

· Mr Denton further states that Mr Dallas fell from the roof in an attempt to align the cord and the truss causing the dislodging of the nail that had already been placed into the truss. This would have also contributed to the truss giving way in the way that it did;

· According to Mr Denton's affidavit evidence the third factor contributing to the accident was the fact that Mr Dallas was sitting on the top chord of the second truncated truss when it gave way in the way that it did. The fact that he was sitting meant that Mr Dallas was unable to move quickly and perhaps grab on to some other aspect of the structure in order to prevent him from falling in the way that he did.

15 None of these causal factors mention what I think is the real cause of the risk of injury in the matter that is before me. That is, the absence of any proper fall protection in place. This is the matter of greatest concern, and, I believe, is the nub of this offence.

16 Mr Dallas and Mr Rykee were working 4.3 metres above the concrete slab floor. They were working in an industry that, on any view, has a high risk of injury and in circumstances that demanded a proactive approach to occupational health and safety generally, but particularly in relation to such matters as fall protection, perimeter fencing and the like.

17 While it has been stated before me that questions arise as to the inherent stability of the interlocking method of this particular pre-fabricated roof truss, it seems to me that this is but one feature, and a minor feature, in my view, of the circumstances of this accident.

18 In other words, even if the roof truss had not fallen over and Mr Dallas had never fallen, the defendant would still, on any view, be in breach of s 15(1) of the Act in failing to provide a safe system of work, in particular adequate fall prevention measures, while its employees were working at a height above 1.8 metres.

19 The reality is of course that with the odd exception such as the matter before me, such breaches never come to light until an accident occurs. 20 It has been acknowledged that in the matter before me the defendant has no prior convictions and that the maximum penalty in this matter is $550,000.

21 In considering offences under the Act for the purposes of penalty, it is well known and acknowledged that one must start by considering the objective seriousness of the offence. That principle is well established and expressed by a Full Bench of this Court in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales 90 IR 464.

22 In relation to that authority, more specifically at p476 the Court had this to say: In the case of an offence under s 15(1) of the Act there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence when there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible.

23 The gravity and the consequence of an accident does not of itself affect the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant; see Tyler v Sydney Electricity 47 IR 1.

24 In relation to this matter, the absence of any measure to protect Mr Dallas from falling, or Mr Rykee for that matter, some 4.3 metres on to a concrete slab floor was, on any view, a major contributing factor not only to the extent of the injury sustained by Mr Dallas but to the risk of injury that such circumstances presented.

25 It is also well known that foreseeability of risk is particularly relevant in determining the objective seriousness of an offence.

26 The task that Mr Dallas, Mr Rykee, Mr Denton and Mr Cormack were engaged in on that day was not a task that of itself was dangerous, but the context in which it was being performed was. That is, the height that it was performed at and the absence of any fall protection.

27 On any view, given the context in which this work was being performed and the absence of any fall prevention measures, the risk of injury was clearly foreseeable.

28 It is relevant also to the objective seriousness of an offence to consider if there was readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent the injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident.

29 As an indication of the extent to which foreseeability of injury was readily identified, this is addressed in part in Mr Denton's affidavit, particularly paras [35] to [41].

30 Again I do not propose to read them in detail here today. Suffice to say that they identify those matters that Mr Denton, in his personal capacity, undertook on behalf of the defendant to examine ways to prevent this type of injury occurring again. In particular he refers to discussions with his employees about all aspects of safety matters and suggestions made to try and avoid accidents and injury in the future.

31 Mr Denton also states that he had discussions with the manufacturer of the prefabricated trusses about changing the design of the joints on those trusses. He also addresses the question of the practicability of a mobile scaffold within the particular worksite. This is a matter that is also addressed by Mr Patton on behalf of the defendant in Provincial Homes, that I will come to shortly. 32 Both Mr Denton and Mr Patton highlight in considerable detail what they consider to be the practical inability to have internal scaffolding or planks in place to act as fall prevention. The reasons given are the perceived impracticability of such structures and to a lesser extent, financial considerations.

33 I accept that both the defendants in the matter before me have genuinely addressed prevention measures such as scaffolding and safety harnesses in looking at remedial measures that could have been put in place in order to prevent this accident occurring. The conclusion from both defendants seems to be that there really is none.

34 I have to say that I find that a difficult proposition to accept. If I was to accept it without question, it means that at this very moment in the building industry, and particularly the residential building industry, employees are engaged in erecting roof trusses on residential housing some 4.3 metres above the ground with nothing more to save them from serious risk of injury by falling, except a suggestion that the employee should be standing at all times and be sufficiently nimble footed to move quickly in the circumstances similar to the one before me if they wish to avoid serious risk of injury.

35 That simply cannot be right on any consideration of ensuring a safe system of work as demanded by the Occupational Health and Safety Act.

36 There is force in the submission of counsel for Provincial Homes that I make a recommendation that WorkCover, as the prosecuting authority, convene discussions within the building industry to address this issue with particular emphasis on practicable fall prevention measures. Accordingly, I make such a recommendation in the strongest terms and that it be acted upon as a matter of some urgency.

37 I consider that the matters before me are serious and I propose to approach the determination of penalty on that basis.

38 In imposing a penalty in this matter regard must be had to general and specific deterrence. On the question of deterrence generally, the approach to be taken in the matter is evident from the decision of the Full Bench of this Court in Capral Aluminium Pty Limited v. WorkCover Authority of New South Wales (2000) 99 IR 29 particularly paras [74] and [77].

39 In para [74] the Full Court had this to say in relation to the application of general and specific deterrence: We consider that the extract from the judgment of Hungerford J in Fisher v. Samara Industries Pty Limited objectively states the approach that members of this Court should take in relation to the question of deterrence both general and personal or specific when sentencing an offender in relation to a serious breach of the legislation.

40 It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. At para [74] the Court states: In sentencing the Court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender or because the offender will not have the opportunity to commit a similar offence in the future.

41 In the evidence before me P & M Denton is no longer operating in the business that it was at the time of this accident. According to the affidavit evidence of Mr Denton on behalf of the defendant company, of which he is the sole director, it has ceased to trade. As Mr Denton deposes, he no longer wishes to do this type of work and that he 'cannot afford financially and emotionally to run the risk of being in this position again.' He has sold all the assets of the defendant and all debts owed by and to the defendant have been cleared, with the main creditor being the Australian Taxation Office.

42 On that point as much as anything, there is the question of the defendant's financial circumstances. There is information annexed to Mr Denton's affidavit which goes to that issue.

43 There is no doubt that I must give consideration to the financial circumstances of the defendant. Section 6 of the Fines Act tells me that I must. There have also been a number of decisions of this Court that refer to the proper approach to be taken in addressing the financial circumstances of a defendant. 44 45 A summary of those authorities is encapsulated in the decision of Walton J in WorkCover Authority v Schraeder 112 IR 284 and particularly paras [83] and [84] and the authorities referred to therein.

46 In determining penalty, I propose to approach the matter before me in accordance with the principles as enunciated in those authorities.

47 In saying that, the information that I have before me is limited to the extent that I have the balance sheet and financial accounts of the defendant as at 31 March 2003.

48 I do not have anything by way of prior financial accounts of the company. The material that I do have discloses a company with a minor trading loss for the year ending 31 March 2003 and a gross profit from trading for the 2002 year of $350,000. 49 50 Any penalty that I impose in this matter will ultimately fall upon Mr Denton as sole director of the company. The amount of evidence that I have as to his own personal financial circumstances is limited and is confined to being told that, on a personal basis, his main asset is the family home valued at some $1.6 million, 15% of that being available equity.

51 Nevertheless I will take those matters into account in the determination of penalty.

52 This plea has been acknowledged by the prosecution as having been entered at the earliest opportunity. The defendant is entitled to a discount on that basis and I assess that discount at 25%.

53 There are no prior convictions as far as this defendant is concerned. The prosecution has acknowledged that the defendant has fully co-operated in the investigation of this matter and has done all that it possibly could to assist the WorkCover Authority and more particularly, Mr Dallas.

54 I accept that Mr Denton in his capacity as sole director of the defendant has expressed genuine remorse and regret over the circumstances of this accident. It involved not only a fellow employee but a friend, who in suffering the accident that he did, was left a paraplegic. That detail is contained in paras [42] and [43] of Mr Denton's affidavit.

55 Taking the subjective features that I have identified into account I determine a further discount on penalty of 10%. Taking into account all the matters that I have referred to, I determine a notional penalty in this matter of $40,000. In applying the discounts as assessed, I determine a final penalty of $26,000.

· The defendant is convicted of the offence as charged. · I impose a penalty in this matter of $26,000. · I allocate a moiety to the prosecution on the usual terms. · Costs as agreed in the sum of $7810. 57 I now move to Matter No IRC 3087/2002. That matter concerns a prosecution laid by Inspector Patton on behalf of the WorkCover Authority of New South Wales in relation to Provincial Homes Pty Limited.

58 The defendant entered a plea of guilty to that offence on 16 September last before Haylen J. That offence involved a breach of s 16(1) of the Occupational Health and Safety Act 1983.

59 The offence is expressed that: On 31 May 2000 the defendant failed to ensure that persons not in its employment, particularly Mr Shannon Dallas and Mr Michael Rykee, were not exposed to risks to their health or safety arising from the conduct of its undertaking at its place of work and particularly failed to ensure that its subcontractors and in particular P & M Denton Building Construction Pty Limited at the said site provided a system of work that was safe and without risk to health and a process of installing prefabricated timber roof trusses.

60 The prosecution has tendered an agreed Statement of Facts and a number of photographs.

61 The agreed Statement of Facts are, in all relevant respects, in similar terms to the agreed Statement of Facts in relation to the other defendant, P & M Denton Pty Limited. In saying that, the different offences and the different role of the two defendants in relation to those similar factual and contextual circumstances requires proper consideration relevant to the issue of parity in determining penalty.

62 Provincial Homes Pty Limited engaged Denton Building Constructions as subcontractors for the purpose of erecting the prefabricated roof trusses on the home being erected at its site, Lot 5, Honeyeater Drive, Blaxland.

63 On behalf of the defendant there is an affidavit with annexures tendered on behalf of Mr Ian Patton. He is a director of the defendant. Mr Patton deposes that Provincial Homes has been operating since 1990. It has some 12 employees and uses the services of a number of subcontractors to work on their various sites. P & M Denton Building Constructions Pty Limited was one such type of subcontractor.

64 It is relevant I believe to put the defendant's role and liability into context as far as this particular accident and the offence before me is concerned. As I indicated earlier, I do believe that the nub of the defendant's offence for the purpose of considering that aspect of its role and culpability is to be found in paras [4] and [5] of Mr Patton's affidavit. That is, that the defendant has subcontractors who come onto its premises. The defendant has a site supervisor employed by it whose job it is to inspect their work sites daily for, amongst other things, ensuring that the way in which the work is being conducted by its subcontractors on site complies with occupational health and safety obligations. In para [5] Mr Patton says: Concerning the work being undertaken by P & M Denton Building Constructions Pty Limited I assumed that Phil Denton would arrange a general occupational health and safety and site occupational health and safety induction for employees on behalf of P & M Denton. I understand now that this did not occur.

65 Following the accident on 21 May 2000 Mr Patton states at para [19] of this affidavit: Provincial Homes now insist that all subcontractors produce a certificate of a WorkCover accredited safety induction course before coming on site when there are issues of site safety rules. We do an individual risk assessment on each job ourselves at the clearing stage. Site supervisors check contractors are complying with the rules of the site. We ensure that each subcontractor has its workers compensation and public liability insurance.

66 The defendant has a prior conviction and it is agreed that the maximum penalty for the offence before me is $825,000. I will return to that prior conviction and the issue of parity in due course.

67 When considering the objective seriousness of the offence before me I have to look at the principles as enunciated in Lawrenson Diecasting. Mr Patton, at paras [9] to [11] of his affidavit addresses, as he perceives it, the problem of being able to ensure a secure fixation of roof trusses at various points of stress. As earlier stated, when one comes to consider foreseeability of risk of injury, particularly in the matter before me, one has to have regard to the nature of the task being undertaken by the employees and the context in which that task was being undertaken. As I have already noted earlier, the task being undertaken at the defendant's worksite on 21 May 2000 had, at its very core, the need to address fall prevention.

68 Mr Patton, like Mr Denton, has also addressed what he identifies as practical issues that make it difficult, if not impossible, he says, to have scaffolding and safety harnesses in place in the type of worksite relevant to this accident. In relation to his evidence on that point I simply repeat what I have had to say at para [34] above.

69 Steps have been taken by this defendant since the accident to ensure that P & M Denton have undertaken relevant occupational health and safety programmes as a prerequisite for it to undertake any future work on sites owned by Provincial Homes.

70 On behalf of the defendant, Mr Patton confirmed that, by way of ensuring extra stability, a block of timber is now nailed at the junction of the truss hip at both ends of the truss. He stated that he has also reinforced the requirement to nail the truss and hip together at both ends before moving on by way of fixing.

71 The trusses that the defendant now uses have also been altered by the manufacturer at Mr Patton's instigation by having a metal spacer attached to them. The defendant has acted to ensure a more secure method in erecting the roof trusses including the practice of nailing horizontal ties across the base of the trusses to further secure them and to provide additional stepping points for workers moving in the roof spaces.

72 On the evidence of Mr Patton, the defendant has determined a more formal approach to occupational health and safety. Its site supervisors have undertaken training programs. There is now a requirement that subcontractors do likewise. As well, the defendant now subscribes to an occupational health and safety compliance booklet supplied by Worksafe Australia.

73 I accept that all of these are steps that this defendant has taken in a genuine attempt to properly address the circumstances of this accident.

74 Some of these steps identified by Mr Patton would not necessarily have prevented the accident that occurred to Mr Dallas on the day in question, but a more heightened awareness of occupational health and safety may well have alerted both defendants before me to the real issue in this matter - that of fall protection.

75 I take into account the need to address the question of general and specific deterrence. I will not repeat all that I have had to say on that point except to say that in relation to this defendant, unlike the defendant P & M Denton, there is the need to take into account specific deterrence as identified in para [77] in Capral.

76 This defendant remains in business. It remains in an industry that, on any view, is replete with risk. There is the need to be proactive in relation to occupational health and safety. Whilst it only has a relatively small group of core employees, it has a much wider responsibility in relation to those persons that come on to its sites as subcontractors. It is my view that, in relation to this defendant, I should take into account both general and specific deterrence for the purposes of penalty.

77 The financial circumstances of the defendant has been raised although there is no precise evidentiary material before the Court about it. I accept that it could be considered a small to medium size company and, on that basis, I would adopt an approach to penalty that would take that factor into account.

78 There is no evidence before me that the defendant is impecunious nor that it is in what might be called straitened financial circumstances. In accepting that, given the type of industry in which it operates, the defendant is a small to medium size business. I also observe it does have a responsibility beyond its immediate core employees.

79 The issue of parity in sentencing between the two defendants before me was raised by the defendant's counsel.

80 Parity in sentencing is a matter to be determined having regard to the circumstances of the co-defendants and their respective degrees of culpability: R v Postiglione (1987) 189 CLR 295.

81 Having said that, there is a danger in taking the principle that co-offenders should receive the same sentence too far: Doan (Chan Thi Bao) (unreported) (NSW CCA 27 September 1996); Steele (Robert Ernest) (unreported, NSW CCA 17 April 1997). It only applies if all other things are equal.

82 In the matters before me I start with two different charges - one involving the defendant P & M Denton giving rise to direct culpability of the employer under s15 in undertaking certain work. The other involving Provincial Homes as defendant arises out of s16 of the Act and the failure by the defendant Provincial Homes to ensure that P & M Denton provided a safe system of work. 83 84 The defendants before me have to be dealt with having regard to their respective failures and to extent to which those respective failures contributed to the identified risk to safety.

85 In this regard I take note of the decision of WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Limited 116 IR 158 and more particularly at para [72] where Walton VP said: When determining the appropriate penalty for a defendant in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk it is primarily important to assess the nature and contribution of the defendant to the relevant risk. 86 The relevant risk to safety in the matter before me was primarily generated by the absence of proper fall prevention measures. On that point, the prosecution submitted in p4 of its written submission: This is a case where there is an absence of an appreciation of the existence of the risk although the risk, it is submitted, is reasonably foreseeable. 87 I have to say I cannot entirely agree with that submission. It is hard to accept that either of these defendants before me, with the experience of the building industry as they clearly did have, did not fully appreciate the existence of the risk to an employee falling in the circumstances in which Mr Dallas did.

88 Mr Denton identified a number of reasons why the accident happened. I have already commented on those. They were mostly to do with, as he perceived it, the type of trusses that he was being asked to erect and, in part, Mr Dallas' seeming propensity to sit rather than stand on the truncated truss on the day in question.

89 The failure of the defendant Provincial Homes before me is incorporated in para [4] and [5] of Mr Patton's affidavit, which I have identified as the nub of their offence.

90 Both defendants state that best fall prevention measures were neither feasible nor practicable in the circumstances in which these employees were working. I disagree.

91 The defendants have pleaded to different charges but, given my view as to the nub of the accident, that is the absence of proper fall protection, I am satisfied that the culpability of the defendants is equal.

92 Accordingly, I approach it on that basis. I accept from the prosecution that, in relation to this particular defendant, the plea has been entered at the earliest possible opportunity and the defendant is entitled to a discount. I assess that discount at 25%.

93 The defendant has a prior conviction. That gives rise to the application of s12 of the Occupational Health and Safety Act 2001 and raises the maximum penalty in this matter to $825,000.

94 The prior conviction of this defendant was dealt with by the Chief Industrial Magistrate in 2001 and arises from an offence that occurred in 1999.

95 As advised by the prosecution, the factual circumstances of that offence are not totally dissimilar to the one before me in that it also identified the need to properly address fall prevention measures. As I understand the circumstances, wooden battens were being handed up from one level to another during building construction. The employee on the higher level was accepting those battens and, as he was taking them, he was moving backwards at the same time. In doing so he moved backwards to a space that was nominated as an internal stairwell except that there were no stairs then in place. In the absence of any perimeter or fall prevention measures, the employee, who was also a subcontractor on the defendant's site, fell down some two to three metres and sustained two fractures to his skull.

96 In considering that prior conviction and the issue of fall prevention generally, it is clearly an issue that this defendant needs to be very mindful of in addressing safe systems of work at its worksites.

97 I accept that whilst the defendant has a prior conviction, that prior conviction does not necessarily justify a greater penalty than the offence before me warrants. It merely disentitles the defendant to the full measure of leniency that it would normally be given in the absence of a prior criminal record.

98 As far as the subjective features of this defendant are concerned I accept that it has fully co-operated with the WorkCover investigation into this matter and has done all that it believed it could possibly do to assist on that basis.

99 I also accept that the defendant would, on any reasonable consideration, have a degree of genuine remorse that this matter has occurred in the circumstances that it has. Taking those features into account I assess a further discount of penalty of 10%.

100 Taking into account all the matters that I have referred to, I determine a notional penalty in this matter of $70,000.

101 In applying the discounts I have assessed, I determine a final penalty of $45,500.

· The defendant is convicted of the offence charged.

· I allocate a moiety to the prosecution on the usual terms.

· Costs to the prosecution as agreed in the sum of $7810.

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