Boral Building Services Pty Limited v Denis James Gazley [1997] ACTSC 68 (12 September 1997)

SUPREME COURT OF THE ACT

BORAL BUILDING SERVICES PTY LIMITED v. DENIS JAMES GAZLEY
Nos. SCA 26
and 27 of 1997
Number of pages - 4
Industrial law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Industrial law - Occupational Health & Safety - Offences - Incomplete scaffolding causing eight metre fall by worker - Penalties - Whether excessive - Usual principles of sentencing apply - Seriousness of breach of safety regulations - Deterrent effect of penalty - Mitigating factors - Penalties not excessive - Occupational Health and Safety Act 1989 (ACT), ss27, 28, 34.

Alcatel Australia Limited v Workcover Authority of New South Wales, (Full Bench, Industrial Relations Commission of NSW, CT 96/1010, 28 October 1996, unreported)

WorkCover Authority of NSW v Waugh (1995) 59 IR 89

R v Tait (1979) 46 FLR 386

Federal Capital Press of Australia Pty Ltd v Edwards (1992) 108 FLR 118

Mitchell v Taylor [1992] ACTSC 69; (1992) 108 FLR 265

Cullen v Lend Lease Interiors Pty Ltd (1989) 26 IR 447

Woodington v Civil & Civic Pty Ltd, (Fisher CJ, Industrial Relations Commission of NSW, CT 92/1104, 30 March 1994, unreported)

WorkCover Authority of NSW v Thiess Contractors Pty Ltd, (Full Court, Industrial Relations Commission of NSW, CT 94/1221, 19 April 1996, unreported)

HEARING

CANBERRA, 25 June 1997 (hearing), 12 September 1997 (decision)

12:9:1997

Counsel for the Appellant: Mr R Mildren

Solicitor for the Appellant: JS O'Connor Harris & Co

Counsel for the Respondent: Mr S Whybrow

Solicitor for the Respondent: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

The appeals be dismissed.

DECISION

HIGGINS J

On 10 March 1997, the appellant, Boral Building Services Pty Ltd (Boral) was found guilty of three offences against the Occupational Health and Safety Act 1989 (ACT) (the Act).

Boral had been charged that, on 5 April 1995, it had caused or permitted,

(a) a failure, contrary to Section 34 of the Act, to take all reasonably practicable steps to ensure that the plant was not erected or installed in such a manner that it was unsafe for employees who used the plant or constituted a risk to their health;

(b) a failure, contrary to Section 27(2)(d) of the Act, to take all reasonably practicable steps to provide to employees the information, instruction, training and supervision necessary to enable them to perform their work in a manner that was safe and without risk to their health; and

(c) a failure, contrary to Section 28 of the Act, to take all reasonably practicable steps to ensure that persons at or near a workplace under the employer's control, who were not the employer's employees, were not exposed to risk to their health or safety arising from the conduct of the employer's undertaking.

The facts, as found by the learned Magistrate, were that, as at 5 April 1995, Boral had been engaged in the performance of work erecting scaffolding on a construction site at Block 22 Section 24 Braddon in the Australian Capital Territory.

Mr Andrew McCullough, a scaffolder, was, on that day, erecting a bay of scaffolding on behalf of Boral. There was a gap both on the decking and the handrail at the outside of the scaffolding at that point.

Mr John Coggan was a bricklayer's labourer. He was working at the same level as the incomplete scaffolding. He was asked to fetch a bucket of water. A convenient course for him so to do involved traversing the area upon which Mr McCullough was working.

Unfortunately, on the bay of scaffolding next to the exposed "gap", planks protruded over the space. Mr McCullough intended to lay them over the gap. Before he could do so, Mr Coggan, it appears, stepped on the protruding end to access that area and cross it. The plank tipped. He fell. The fall was about eight metres. Mr McCullough tried to save Mr Coggan but could not stop his fall.

The appellant, Mr McCullough's employer, agrees that proper safety precautions were not taken. There were no relevant warning signs. There was no plastic orange fencing to indicate a hazard. No express warning had been communicated to the nearby workers.

It is the appellant's complaint, not that his Worship was in error in finding the offences proved, but rather that the penalties imposed were excessive.

There is one incidental finding complained of. In deciding the penalty, his Worship said of Mr McCullough,

... scaffolder McCullough had at least three steel planks in place and would have been very close to installing the remaining two when the accident occurred. And something has either distracted him or caused him to not complete the job immediately. And on that view of the matter I do not consider the conduct of Boral Building Services at a very grave level.

It is true that there was no evidence, as both parties agree, that Mr McCullough had been "distracted" from proceeding with his task with due expedition.

However, it seems to me that the unexpected distraction was relied upon by his Worship as a reason for treating the breaches of safety regulations less severely rather than otherwise he might have. If no unforeseen difficulty arose to cause delay in completing the area of scaffolding in question, the failure to take safety precautions should be viewed more seriously rather than less. That is because rather than the risk of injury arising in part from unforeseen delay or distraction, it arises solely from the usual or anticipated course of the work.

The penalty imposed, given the high volume of work the appellant had done and its lack of previous convictions, was a fine of $15,000.00 plus costs of $1,100.00 for the breach of s34.

For the breach of s27(2)(d), a fine of $5,000.00 was imposed.

For the breach of s28, a conviction was recorded, but no further penalty imposed.

It is appropriate to consider the totality of the circumstances and penalties in considering these appeals. There is no appeal against the penalty imposed in respect of the last matter.

There is no doubt that the usual principles of sentencing are applicable in the present case.

A decision of the Full Bench of the Industrial Relations Commission of New South Wales in Alcatel Australia Limited v WorkCover Authority of New South Wales (CT 96/1010, 28 October 1996, unreported) a similar matter, was tendered.

Their Honours in that case noted that an appellate court will not interfere with a sentence imposed unless there is manifest error. That applied principles adopted and approved in WorkCover Authority of NSW v Waugh (1995) 59 IR 89. Those principles were, in turn, derived from R v Tait (1979) 46 FLR 386.

I note that those principles, in relation to an appeal to this Court from the Magistrates Court, require some qualification to take account of the fact that whilst an appeal from this Court to the Federal Court is an appeal stricto sensu, an appeal from the Magistrates Court to this Court is by way of rehearing. That means that, whilst having due regard to the Magistrate's decision and the reasons for it, deferring to a view expressed as to the credibility of witnesses unless plainly wrong, this Court must give effect to its own assessment of the evidence, see Federal Capital Press of Australia Pty Ltd v Edwards (1992) 108 FLR 118 and Mitchell v Taylor [1992] ACTSC 69; (1992) 108 FLR 265.

Reference was made to Cullen v Lend Lease Interiors Pty Ltd (1989) 26 IR 447. Although mitigating factors there present were similar to those present in this case, Fisher P, in respect of what his Honour regarded as a serious omission to take due care, imposed penalties totalling $20,000.00 for two breaches of similar provisions. The maximum penalty in each case was $100,000.00.

In another case, Woodington v Civil & Civic Pty Ltd CT 92/1104, 30 March 1994, a penalty of $25,000.00 was imposed. The defendant had 10 previous convictions.

In WorkCover Authority of NSW v Thiess Contractors Pty Ltd, (Full Court, Industrial Relations Commission of NSW, CT 94/1221, 19 April 1996, unreported) it was affirmed that in cases such as the present the primary objective of the legislature is to support deterrence. Thus provisions such as s556A or low scale penalties will usually be inappropriate. The deterrence is largely implemented by means of substantial monetary penalties. A premium is placed on encouraging foresight, reflection and avoidance of risk rather than mere retribution for unforeseen but foreseeable consequences.

That conclusion, supported in Alcatel Australia Ltd (supra), seems to me entirely appropriate. Prevention of work injury and encouraging higher standards of vigilance are the legislative objectives.

Their Honours considered, in that context, the usual range of mitigating factors. Even so, whilst the $65,000.00 penalty was considered excessive, a penalty of $25,000.00 was substituted. That is, nevertheless, a substantial monetary penalty.

It was and is relevant to give due weight to the fact that the appellant has a previously creditable and, so far as is known, unblemished safety record. That can, of course, be more attributable to good fortune than good management if an unsafe practice has previously been adopted. The taking of remedial measures and co-operation with the authorities may evidence contrition. That factor appears to have been present in this case. Those factors do require an amelioration of the penalty which otherwise might be appropriate for the breach or breaches found proved.

However, the maximum penalty available in relation to these offences was, in each case, $125,000.00. The gravamen of the first offence (s34) was the obvious failure to take precautions, along with the positive establishment of a "trap" into which the hapless worker, literally, fell. Further, the risk of injury or death was very high. It is only by good fortune that the worker did not suffer more extreme injury. The consequences of the actual injuries, whilst relevant, are not as significant as the degree of risk created.

I cannot regard the penalty of $15,000.00 as excessive in that context, even given the appellant's good record. Indeed, given the profile of the appellant in the building industry as it was put to me, I might well have considered a moderately higher penalty appropriate. The second offence (s27(2)(d)) charged failure to provide proper instruction and supervision to the scaffolder. Obviously, this was partly covered by the first offence (failure to ensure safety). However, it related to a lack of a proper practice which had general application.

Again, I do not think the penalty excessive even having full regard to the penalty imposed in respect of the s34 offence.

In my view, his Worship did not impose excessive penalties. Indeed, a penalty to some degree larger would have been justifiable. The appellant had caused or permitted a serious risk to the safety of workers on the site and had adopted a practice of lack of instruction or vigilance which might encourage further hazardous situations.

Even allowing for the good general safety record of the appellant and the fact that this lapse did not evidence general disregard of safety requirements, a penalty of $20,000.00 out of a possible total of $375,000.00 cannot be regarded as either excessive in itself or, having regard to penalties imposed in the Magistrates Court previously, between 1991 and 1995, as out of proportion to those which might have been expected in comparable cases.

The appeals are dismissed.