Wca v Bezzina & Butterfield [2001] NSWIRComm 32 (16 March 2001)

Last Updated: 20 March 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WCA v Bezzina & Butterfield [2001] NSWIRComm 32

FILE NUMBER(S): 5981-5984

HEARING DATE(S): 22/06/2000, 23/06/2000, 11/12/2000, 12/12/2000

DECISION DATE: 16/03/2001

PARTIES:

APPLICANT:

Workcover Authority of New South Wales

DEFENDANT:

Ronald Joseph Bezzina and Peter Butterfield

JUDGMENT OF: Maidment J

LEGAL REPRESENTATIVES

Applicant:

Mr P Skinner of Counsel

Solicitor:

Mr N Correy

Moray & Agnew Solicitors

Defendant:

Mr R Reitano of Counsel

Solicitor:

Mr P Mann

Abbott Tout Solicitors

CASES CITED:

LEGISLATION CITED:

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: MAIDMENT J

DATE: 16 MARCH 2001

Matter No.IRC99/5981

WorkCover Authority of NSW (Inspector Howard) v Ronald Joseph Bezzina

Prosecution under s.17(1)(a) of the Occupational Health & Safety Act 1983.

Matter No.IRC99/5982

WorkCover Authority of NSW (Inspector Howard) v Ronald Joseph Bezzina

Prosecution under s.16(2) of the Occupational Health & Safety Act 1983.

Matter No.IRC99/5983

WorkCover of NSW (Inspector Howard) v Peter Butterfield

Prosecution under s.17(1)(a) of the Occupational Health & Safety Act 1983.

Matter No.IRC99/5984

WorkCover of NSW (Inspector Howard) v Peter Butterfield

Prosecution under s.16(2) of the Occupational Health & Safety Act 1983.

JUDGMENT

1    These prosecutions were not initiated until the two year limitation period had almost expired. This accords with my experience of the practice of WorkCover Authority ("WCA"). The resultant delay has a deleterious effect upon the memories of witnesses and upon the ability of the Court to ascertain the facts. Any clouding of the facts arising from delay must be determined in favour of the defendants.

2    Ronald Joseph Bezzina and Peter Butterfield, partners in Bezzina Butterfield Builders, are each charged with identical breaches of s.16(2) and s.17(1)(a) of the Occupational Health & Safety Act 1983 as a result of injuries received by Pietro Scalise at a construction site on 10 November 1997. The s.16(2) matters arise from the conduct of the defendants' undertaking, those under s.17(1)(a) from their control over the construction site.

3    These contested matters were heard concurrently, Mr Skinner of counsel prosecuting, Mr Reitano of counsel representing the defendants.

4    Evidence was given in the prosecutor's case by Dennis Keble Howard, WCA Inspector; Roberto Brizi, a concrete finisher; Albert Luigi Pizzinato, a director of General Beton & Co Pty Ltd, concreters; Salvadore Marra, concrete finisher; Simon Dominie Pizzinato, director of General Beton & Co. Pty Ltd; Alvaro Louis Lopez, concreter; Petro Scalize, concrete finisher and Murray Thornthwaite, police officer.

5    Both defendants gave evidence in their case as did Wayne Ronald Teasel, contractor plumber; Jimmy Katsikas, electrical contractor and William Jeffrey Eastburn, proprietor of a building equipment hire business.

6    The summonses, which, save for the section specified and consequential differences, are identical in each of the four cases, are as follows:

On 10 November 1997 at a residential home unit construction site situated at 19-23 Marlo Road, Cronulla 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 Pietro Scalise, 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 & Safety Act, 1983 in that:

(a) there was no perimeter fencing of the third level of the building under construction at the site to prevent persons falling in excess of 1.8 metres;

(b) there was no scaffolding erected to enable work to be conducted safely by persons when work could not be conducted safely by such persons standing on permanent or solid construction;

(c) there was no artificial lighting provided to enable work to be conducted safely.

The Particulars of the charge are:

1. The defendant was a partner in a business which traded in the name of Bezzina Butterfield Builders ("the builder").

2. At all material times the builder was constructing twenty-one residential home units of a three storey walk-up type in addition to a basement level carpark ("the building") at 19-23 Marlo Road, Cronulla ("the site").

3. The builder had engaged General Beton Co. Pty Limited (ACN 002 385 305) ("the contractor") to carry out work at the site involving the placement of steel and the placement and finishing of concrete.

4. The contractor at all material times employed Pietro Scalise ("the worker")

5. At all material times the worker was engaged as a concreter/finisher at the site.

6. Prior to 7.20pm on 10 November 1997 concrete had been poured to form the second residential floor level slab of the building.

7. Immediately prior to 7.45pm on 10 November 1997 the worker was using a hand trowel to close up the last footprints which were made in the freshly laid concrete for the second residential floor level slab of the building.

8. When carrying out the work aforementioned in paragraph 6 the worker was alone and not being supervised.

9. At approximately 7.45pm on 10 November 1997 the worker slipped and as a consequence fell from the edge of the second residential floor level of the building a distance of approximately 5.9 metres and landed on the concrete slab at ground level.

10. The worker suffered serious injuries as a result of the fall.

11. At the time the worker fell from the building there was no fencing in place around the perimeter of the second residential floor level of the building.

12. At the time the worker fell from the building there was no scaffolding erected to enable him to safely carry out his work at the edge of the building.

13. At all material times the worker was carrying out the work when the natural light was failing.

14. At the time the worker fell from the building there was no artificial lighting in place to illuminate the area where he was working.

7    The hearing commenced in June 2000, however, as a result of the prosecution not arranging for the attendance of a material witness, it was not finalised until December, 2000.

8    At the commencement of the hearing Mr Reitano sought particulars of paragraph (a) of each charge in that he requested specification of the allegation concerning perimeter fencing. Mr Skinner responded that the allegation was that there was no perimeter fencing on the top floor of the building under construction to prevent persons from falling.

9    The underlying facts are that a concrete pour took place on the afternoon of 10 November, 1997 on the top level of a three storey block of flats which was being constructed. Access to the top level was via a staircase. A team of concreters, including Mr Scalise, was engaged in smoothing the surface of the cement. At about 4.30pm the team, other than Mr Scalise, Peter Marra and Salvadore Marra, left the site whilst the remaining three continued working.

10    The work was interrupted at about 6pm by rain, after the rain stopped work was resumed. Sometime after 7pm Peter and Salvadore Marra left Mr Scalise, who was still working on the top floor, and went to their truck. Mr Scalise remained to smooth out footprints in the cement. This required him to work backwards towards the staircase. Upon returning to the site shortly afterwards Salvadore Marra found Mr Scalise lying on the ground and injured. It was dark by then. Mr Scalise said to the effect "I've fallen from the timbers". As Mr Scalise was lying near the staircase which had timber railings Salvadore Marra assumed that he had fallen from the staircase.

11    The evidence of Mr Scalise is that he was not kneeling down whilst smoothing out the footprints, rather he was both bending down and squatting in order to perform that work. He indicated that he was a bit more than a metre from the stairs and near the edge when he got up and fell backwards to the ground level.

HAND RAILING

12    Some witnesses recalled having observed safety railings around the perimeter of the top floor on the day of the pour, others were certain that there were none. There was evidence that handrails had been fixed to the formwork and had been removed, along with the formwork, early in the morning following Mr Scalise's accident.

13    Early on the morning after the accident work resumed on the site, those present being unaware of the accident. The formwork for the previous days pour was removed. The site was inspected at about 10 or 11am that day by Inspector Howard by which time the form work had been removed. Any railings attached to the formwork would also, of necessity, have also been removed. Mr Butterfield, who was supervising the site that morning, first became aware of the accident when the Inspector arrived. The evidence of Mr Butterfield is that he informed Inspector Howard that day that hand rails had been in place on the top floor, the Inspector's recollection accords with that evidence. The Inspector also agrees that Mr Bezzina had told him that there had been railings around the top of the building. He agreed in cross examination that he would not be surprised if hand railing had been fixed to the formwork and removed with it.

14    Despite the information from Messrs Butterfield and Bezzina, Inspector Howard made no inquiries as to whether or not the site had been in the same condition the previous night as it was when he visited it on 11 November and did not, at least on that day, investigate the fate of the handrails of which he had been informed. Rather, it would seem, he accepted the word of those who said that no handrails had been in place.

15    As the prosecution case proceeded on the basis that there had been no hand railing and as Inspector Howard did not investigate the assertions that hand railing had been in place, no testing of the actual hand railing or of railing of similar construction was performed by WCA. Thus the adequacy or otherwise of the railing has not been demonstrated to this Court.

16    At the close of the prosecution evidence Mr Skinner submitted that:

I concede if the prosecution is locked into the written summonses we are dead in the water . . . on the handrail part of the case,

and

Nonetheless, the concession being made the submissions probably sensibly can proceed on the basis that your Honour finds that there was a handrail, . . .

17    The evidence of Mr Teasel was that, prior to the pour on 10 November, he had erected hand railing around the perimeter of the top floor, the uprights being fixed to the end boards of the formwork. His said that, as the formworkers went around the floor he followed, erecting the handrails as he went. Mr Katsikas, who performed electrical contracting work on the site, gave evidence that he recalled, on the day of and before the accident, "handrails being nailed to the formwork across edge boards".

18    In the face of that evidence it is my view that, on the balance of probabilities, hand railing had been put in place prior to the accident and was removed the following morning prior to Inspector Howard attending the site.

19    I am of the view that the prosecution ought not be permitted to go beyond the allegation as particularised in the summons and agree with Mr Skinner that it is therefore "dead in the water" on the issue of hand railing. The summonses were not issued until 29 October, 1999 almost two years after the accident. In such circumstances I reject the submission, made in late 2000, that the prosecutor should be permitted to depart in a substantial sense from the particulars contained in the summons. In any event the evidence does not permit a finding beyond reasonable doubt that the railing was deficient.

20    The evidence of deficiency is that Mr Brizi, in a statement to an insurance investigator, had said that the railing was not very secure and that he would not have been prepared to put any weight upon it. However, in these proceedings, he was adamant that there were no handrails on the top level. He recalled some on a staircase. This evidence is unhelpful in determining the adequacy or otherwise of the railings around the perimeter of the top floor the existence of which he denied.

21    Mr Skinner argues that the evidence as to the mode of construction of the handrails leads to the conclusion that they were flimsy and not up to standard. However in the absence of evidence that the hand railing was flimsy and not up to standard no such finding is open to this Court. In this regard I note that no suggestion was made to Mr Teasel of any inadequacy in his railings.

22    As can be seen from the particulars of the charges the allegation was that:

11. At the time the worker fell from the building there was no fencing in place around the perimeter of the second residential floor level of the building.

23    Mr Skinner argued that, to the extent that there was safety railing, it was inadequate. The problem which that contention faces is that the evidence of those witnesses, including Mr Scalise, who denied the existence of hand railing cannot be relied upon to support the view that the hand railing was inadequate. None of the witnesses who asserted the existence of handrails said that they were deficient. This court cannot, on the evidence, reach the view that, if there were handrails, they were other than appropriate.

SCAFFOLDING

24    The particulars of this aspect of the allegations are as that:

At the time the worker fell from the building there was no scaffolding erected to enable him to safely carry out his work at the edge of the building.

25    The evidence is that the walls of the building were of brick and that the bricklayers, in constructing the second level walls, had put in place "catch scaffolding". That scaffolding was comprised of steel mesh attached to metal brackets which were attached to the wall proximate to the second floor slab and at an angle upwards of approximately 30 or 45 degrees. The top of the scaffolding was approximately level with the top floor slab upon which Mr Scalise had been working and was about a metre to a metre and a half from the side of the wall at that point. As Inspector Howard considered the catch scaffolding to be irrelevant he made no measurements or assessment of it.

26    Mr Skinner argues that the word "scaffolding", as used in the summonses, does not include "catch scaffolding". Alternatively he argues that the catch scaffolding around the building did not extent to the position from which Mr Scalise fell. He also contends that the catch scaffolding did not enable Mr Scalise to safely carry out his work at the edge of the building.

27    As to the first contention Mr Skinner points to the evidence of some of the witnesses who did not consider the catch scaffolding to have been scaffolding as they use that term. Mr Scalise denied that it was even catch scaffolding. The problem the contention faces, however, is that the prosecutor, Inspector Howard, who swore the affidavits in support of the applications for the summonses, did not take issue with the use of the word "scaffolding" in reference to catch scaffolding.

28    The transcript of the evidence of Inspector Howard during cross examination as to a photograph of the catch scaffolding, includes the following:

Q. Would you agree that that is a catch scaffold?

A. Yes I would.

Q. Would you agree it can bear the weight of a human being?

A. Correctly erected, yes.

Q. And that if a human being fell, assume they fall from this area that we are talking about on the top right hand side of the photo they would fall into the catch scaffold?

A. No, the catch scaffold is not continuous up to the edge of the stairs.

Q. I was saying from the top right hand side right in the corner of the photo and you see that it goes along and it's a bit across towards the stairs but not continuous to the stairs?

A. Yes.

Q. If you fell in the top right hand corner of the scaffold you would bounce into the catch scaffold, correct?

A. Yes you would unfortunately.

Q. Did you observe on the day that you were at the building - you say "unfortunately",. why do you say that?

A. Because I don't like catch scaffolds as a system of fall protection. It's commonly used in the industry but as you just said if one fell from the top and fell to the catch scaffold then raises the issue of how to get that person out. He is now two or three inches wedged into the bottom of the catch.

Q. But he is not 5.9 metres lying on the cement, of course?

A. No, he is not.

[my emphasis]

29    Mr Skinner submitted that the Inspector, in giving that evidence, "has it wrong". He contends that the purpose of the catch scaffolding was to catch bricks and other materials which may have been dislodged by the bricklayers and was not there to protect employees working on the next level. Accepting that the prime purpose of the scaffolding is as put by Mr Skinner that does not render it useless for other purposes such as to prevent a person from falling to the ground.

30    The transcript of the Inspector's evidence also records:

Q. A few moments ago you said to me as I understood your evidence and I was reading it back to make sure I did understand it, because as I understood your evidence you said that where people were working at the top of the building if there was catch scaffolding installed correctly then you were of than the opinion that work could be conducted safely at the top of the building; that is what you, said isn't it? (sic)

A. Yes.

Q. And when you said that you meant it, didn't you?

A. Yes.

31    Although the Inspector, for reasons not clear to me, expressed the belief that the catch scaffolding on the site was of no relevance to the accident, his evidence is that such scaffolding is commonly used in the industry and, if properly installed, would have enabled work on the top level to be performed safely.

32    I am unable to reach the view that there was no scaffolding within the meaning of that term as used either ordinarily or by the Inspector. I am also unable to accept that the catch scaffolding would not have prevented Mr Scalise from falling to the ground from any point of the top level which was protected by that scaffolding.

33    There was some debate as to whether or not catch scaffolding had been in place at the location from which Mr Scalise fell.

34    The photographic evidence demonstrates the existence of a gap between the end of the catch scaffolding and the edge of the staircase. The width of the gap appears to coincide with that of a planter box on the second level. Mr Scalise, in the witness box, identified the spot from which he fell by placing a mark on one of the photographs. In doing so he commented upon the unsatisfactory angle from which the photograph had been taken. It obviously suffers from parallax error. The position made by him, when allowance is made for parallax error, is proximate to the beginning of the gap between the scaffolding and the staircase. Mr Scalise also gave evidence that he recollects striking something during his fall.

35    Mr Reitano submitted that, had Mr Scalise fallen into the gap, he would have landed in the planter box. I am of a different opinion.

36    The evidence of Mr Scalise, which I accept in his regard, is clear in that he was working backwards towards the staircase from the side on which there was a gap between the catch scaffolding and the staircase. It is also clear that he fell backwards from a point near the staircase and was found proximate to the point where the scaffolding and planter box meet albeit on the ground level.

37    The inference is unescapable that he fell where there was a gap between the catch scaffolding and the staircase in such a fashion that he struck the planter box as he fell and was deflected to the ground level. Otherwise the catch scaffolding would have arrested his fall.

38    I find this allegation proven.

LIGHTING

39    It is further alleged that:

13. At all material times the worker was carrying out the work when the natural light was failing.

14. At the time the worker fell from the building there was no artificial lighting in place to illuminate the area where he was working.

40    The evidence in this regard fails to disclose any failure to provide lighting, nor does it demonstrate any causal connection between the level of lighting and the danger occasioned by the work being performed by Mr Scalise.

41    The work was being performed after dark. Whilst the work was suspended on account of rain Mr Bezzina attended the site, found nobody there and assumed that work had been finished for the day. In fact Mr Scalise and Messrs Marra had been instructed by their employer, Mr Pizzinato to go home but, on account of a respite in the weather, had not complied with that direction.

42    Mr Marra said that portable lighting was in use, Mr Scalese said to the contrary, Mr Pizzinato said that Mr Scalise had his own light in his car.

43    In view of this evidentiary conflict I cannot find this aspect of the charges proven.

44    For the reasons and to the limited extent above recorded I find that each charge is made out. The matters will be relisted in regards to submissions concerning penalty and costs.

LAST UPDATED: 16/03/2001