Inspector Vierow v J Gardner (NSW) Contractors Pty Ltd [2003] NSWIRComm 19 (17 February 2003)

Last Updated: 7 March 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Vierow v J Gardner (NSW) Contractors Pty Ltd [2003] NSWIRComm 19

FILE NUMBER(S): IRC 1793

HEARING DATE(S): 06/02/2003

DECISION DATE: 17/02/2003

PARTIES:

PROSECUTOR:

Inspector Maurice Vierow

DEFENDANT:

J Gardner (NSW) Contractors Pty Ltd

JUDGMENT OF: Haylen J

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr M Cahill of counsel

SOLICITORS:

Gordon Henderson

Phillips Fox

DEFENDANT:

Ms P McDonald of counsel

SOLICITORS:

Mr T Williams

Snedden Hall & Gallop

by their agents

Cowley Hearne

CASES CITED:

LEGISLATION CITED:

JUDGMENT:

- 10 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: HAYLEN J

17 February 2003

Matter No IRC 1793 of 2002

Inspector Maurice Vierow v J Gardner (NSW) Contractors Pty. Ltd.

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983.

JUDGMENT

[2003] NSWIRComm 19

1 The defendant, J Gardner (NSW) Contractors Pty Ltd, has pleaded guilty to an offence under s 15(1) of the Occupational Health and Safety Act 1983. The prosecutor has alleged that the defendant failed to ensure the health and safety and welfare at work of its employees in that it failed to ensure a system of work that was safe and without risk to health for the operation of a jumbo drilling machine.

2 The offence was particularised in the following way:

(a) the defendant failed to ensure that employees remained safely clear of the work zone area for the jumbo while drilling operations were carried out;

( b) the defendant failed to carry out an adequate assessment of the risks posed to employees by falling rock while the jumbo was carrying out drilling operations;

(c) the defendant failed to ensure adequate instruction, training and supervision of employees required the work in close proximity to drilling operations carried out by the jumbo.

3 The defendant was incorporated in March 1989 with two directors who have remained the sole directors since that time. The evidence established that the directors were very experienced in the underground construction and mining industries: they had been engaged in a number of capacities including as employers and as consultants. The defendant described its business as consisting of the provision of supervisory or consultancy services to third party principal contractors in projects in the underground mining and consultancy industry. Since 1989, the company had been involved in a number of large and apparently complex projects. This involvement resulted, from time to time, in the defendant contracting to perform the work itself and employing relatively small numbers of persons to carry out the work. The present offence arose during the defendant's sub-contract for the construction of twin highway tunnels on the Pacific Highway Reconstruction (Yelgun to Chindra section). On this sub-contract the defendant employed some ten or twelve employees, which appears to be the highest number of employees it has engaged since the commencement of its business operations in 1989.

4 It appears to be common ground that the defendant was constructing the tunnels using what was described as the "drill and blast" method. This involved a mechanised drill fitted with two drilling booms, called a "jumbo", being used to drill blast holes. The jumbo was manned by a crew consisting of an operator and an offsider. The offsider performed tasks that included general labouring duties and specific tasks at the rock face, such as changing drilling rods, clearing debris from the drilling process, marking up the face and charging the face with explosives.

5 On 7 February 2001, the duties of the offsider were performed by an employee of the defendant, Mr Mearns. Mr Mearns was an electrician who performed both electrical work and work as the offsider for the jumbo operator. At about 4 00 pm on 7 February 2001, Mr Mearns was performing the task of the offisider while drilling operations were being performed in the south bound heading at the northern portal of the Cudgen tunnel. The jumbo operator was using the drilling boom to drill blast holes into the rock face. Mr Mearns, who was standing to the left of the jumbo, approached the rock face with a device described as a "pelican pick", which he used for the purpose of clearing debris from the drill holes at floor level. Mr Mearns also had a can of spray paint to mark the drill holes for blasting. Whilst he was in the vicinity of the rock face, to the left but in front of the operating jumbo, a rock fall occurred. Mr Mearns was struck on the head, shoulders and left arm/hand in the rock fall. As a consequence of his involvement in the rock fall, Mr Mearns' left thumb was amputated and he sustained soft tissue damage to his elbow, shoulder and back. Mr Mearns returned to work five weeks after the accident and continued to work for the defendant in completing the project. After this project, it appears that there was no contract work requiring employees but the defendant assisted Mr Mearns in finding employment overseas, employment which appears to have been ongoing.

6 While noting that the nature of the undertaking meant that, in a broad sense, the danger of falling rock in such an excavation activity was foreseeable, the prosecutor pointed to an earlier incident which occurred on 1 February 2001 as an aggravating factor. On that day, rock fell from the crown of the tunnel on to the jumbo machine. There were no employees in the vicinity of the rock fall at the time and no injuries resulted. The prosecutor submits that this occurrence, together with the fact that the rock was rendered less stable because of numerous faults, made the potential for injury to those working around the jumbo as a result of rock fall clearly foreseeable.

7 The evidence for the defendant was that its directors were not overly concerned by the incident on 1 February 2001 because they perceived that the risk to the health and safety of workers caused by falling rocks was one that could be averted. The two directors responded to this perceived risk immediately and from 1 February 2001 implemented the following steps to address that risk: reducing the length advanced per round, which meant that a lesser surface area of rock was exposed after blasting; directing the closer spacing of the rock bolts; and, directing the use of thicker primary shotcrete. Based on their experience, they concluded that these measures would minimise the risk of falling rock. In evidence it was accepted, in hindsight, that these measures to reduce the risk of injury to employees were not adequate and that additional measures should have been introduced to protect the defendant's employees, such as Mr Mearns. The defendant, soon after the accident, took the following additional measures by way of directions to its workforce:

(1) Avoid travelling under unsupported crown.

(2) Scale all exposed rock surfaces both mechanically (jumbo, mucker) and manually (scaling bar from safe stance/position).

(3) Maintain ground support (rockbolts and shotcrete) as close as practical to the advancing face.

(4) After face is barred down, lifters drilled and tubes inserted, no one is to advance to the face beyond the jumbo operator's station (visually check face after drilling BEFORE lifter tubes installed, scale if any doubt).

(5) After completion of drilling, the face is to be re-scaled using jumbo and hand scaling as necessary before any further work e.g. charge up, takes place at the face.

(6) In extreme case of bad rock condition, the face will be shotcreted before drilling.

(7) See work procedure on working in front of jumbo.

(8) re-scale rock surface before any work near the face.

It was the defendant's evidence that these steps were implemented immediately after the accident so that any person who was performing cleaning using a pelican pick would not be anywhere near the rock face during drilling of the rock face. It was stated that, following the adoption of this new safety management plan, there were no further incidents at the project regarding work performed by the defendant's employees. The accident involving Mr Mearns was the only personal injury accident which occurred during that project.

8 The parties tendered an Agreed Statement of Facts. In light of the submissions made regarding the appropriate penalty it is appropriate to set out the contents of that document. Omitting formal parts, the following matters were agreed:

2 The Prosecutor conducted investigations into the circumstances surrounding an accident which occurred on 7 February 2001 at Cugden Road Tunnel, Stotts Creek in the State of New South Wales (the accident site).

3 At all material times the Defendant J Gardner Contractors (NSW) Pty Limited (ACN 008 649 778):

3.1 was an incorporated company with its registered office located at Deborah Poulton & Associates, Suite 7, 16 National Circuit, Barton in the Australian Capital Territory;

3.2 was contracted by Abigroup Contractors Pty Limited (Abigroup) to construct a dual road tunnel as part of the Yelgun to Chindra Pacific Highway upgrade;

3.3 carried out excavation work and tunnel construction at the accident site;

3.4 operated a Jumbo drilling machine (Jumbo) at the accident site;

3.5 employed Bradley John Mearns (Mearns) a 31 year old electrician, to perform electrical work, charging the face of the tunnel and other general duties; and

3.6 employed Waka Shane Tamakehu Rangi (Rangi) to operate the Jumbo in carrying out drilling and preparing holes for blasting.

4 On 7 February 2001 at approximately 4.00 pm, Mearns was working as an offsider to Rangi while he operated the Jumbo at the accident site. While standing on the left side of the Jumbo while drilling operations were being carried out by Rangi, Mearns approached the rock face with a pelican pick (or mattock) and a can of spray paint to mark drill holes at floor level for blasting and suffered injuries when he was struck on the head, shoulders and left arm by a rock falling from the rock face wall. Mearns sustained the amputation of his left thumb and soft tissue damage to his elbow, shoulder and back and as a result of his injuries, he was not expected to return to normal duties in the foreseeable future.

5 On 8 February 2001, the Prosecutor attended the accident site and observed as follows:

5.1 a Jumbo drilling machine parked inside the tunnel;

5.2 a pile of rock identified as the rock fall that caused the accident inside the South bound tunnel at the rock face, on the western side;

5.3 a pelican pick lying amongst the rock fall; and

5.4 the northern portal of tunnel where the accident occurred on 7 February 2001.

6 A fault in the rock structure had been identified by the Defendant prior to Mearns' accident.

7 There had been a previous rock fall on 1 February 2001 in which the same rock structure was involved.

8 During this previous rock fall a section of roof fell, causing damage to the Jumbo.

9 The Defendant was aware of these faults in the rock structure.

10 The Defendant was aware that the excavation of the western side of the south bound tunnel had advanced into strongly faulted rock in the days leading immediately prior to Mearns' accident.

11 Rangi had been operating the Jumbo drilling holes in the rock face in an area of faulted rock prior to and at the time of the accident. The rock that injured Mearns fell approximately 3-4 metres away from the Jumbo. It is likely that the rock was dislodged from the rock face from the vibrations caused by the Jumbo drilling operations.

12 Mearns had been employed by the Defendant as an electrician but was also was (sic) working as an offsider to the Jumbo operator and assisted with the loading of explosives.

13 No instructions or information had been given to Mearns, or other employees of the Defendant, concerning working on foot at or near the rock face in close proximity to the Jumbo while drilling or other operations were being carried out (the work area), other than verbal instructions that persons working on foot in the work area must watch continuously for other traffic and pedestrians and must:

'Be careful what you are doing, and keep an eye on the face.'

14 Mearns had not been given any instructions to remain clear of the work zone area.

15 A work method statement (including a safe work method statement) had been produced by the Defendant for the entire job including general method and safe work statements relating to the drilling and the operations of the Jumbo.

16 The work method statement referred to in paragraph 15 was prepared for, and provided to, Abigroup in accordance with the contract between the Defendant and Abigroup.

17 The work method statement referred to in paragraph 15 was not provided to employees for the purposes of carrying out their duties.

18 The supervision of Means and Rangi at the time of the accident was inadequate.

19 Subsequent to the accident, the Defendant revised working procedures to ensure that no person was on foot in the work zone area while the Jumbo was performing any drilling or scaling operations. The Defendant implemented a method of work with further emphasis on rescaling rock faces to prevent the dislodging of unstable or loose rock after drilling.

9 The prosecutor accepted that the defendant had no previous record and that the maximum penalty for this first offence was $550,000. It was emphasised that the maximum penalty for a first offence indicated the gravity of breaches of the Act as perceived by both the Parliament and the community.

10 In relation to the objective seriousness of the offence charged, the prosecutor noted that the work method adopted by the defendant prior to the accident did not prohibit the entry into the work area of the jumbo including areas adjacent to the face of the jumbo in operation. It was submitted that this method of work gave rise to a real and foreseeable risk of injury from rock falls associated with the operation of the jumbo. Prior to the accident, the defendant was also aware that the jumbo had moved into a "highly' faulted area of rock, a factor that the defendant knew or should have known increased the risk of falls of loose, unstable rock in association with the operation of the jumbo. In these circumstances, the defendant's failure was said to represent a "significant breach" of s 15(1) of the Act.

11 For the defendant, it was submitted that, in assessing the nature and quality of the offence (and hence the gravity of the offence and the culpability of the defendant), a relevant consideration was whether there was an obvious or foreseeable risk to safety against which appropriate measures were not taken. In this regard, foreseeability should be assessed according to the past experience of the employer. The directors of the defendant had extensive experience in the industry of underground construction and had never been involved in an accident in which its employees suffered serious injuries. The defendant's directors were of the view that its system of work and safety was sufficient to prevent risk occurring.

12 The defendant acknowledged that the risk to health and safety of falling rocks was foreseeable but that risk had been identified, and a system introduced to minimise and control that risk had been adopted but unfortunately "did not go far enough". This was a case where there was no failure to introduce any system at all to deal with a known danger but was a case where the system introduced was insufficiently comprehensive.

13 Although the employees of the defendant were not given a copy of the safe working method statement, nevertheless, details of the system were distributed and were reinforced in a number of ways. It was submitted that employees and other workers who were required to work in the tunnel project were required to attend a specific induction session on working in the tunnel project which was conducted by the defendant. It was clear from notes used in conducting those sessions that reference was made to hazard awareness specific to tunnelling operations such as the risk of unstable rock formations and falls. It was stated that a fundamental part of the system introduced by the defendant was direct and constant communication between the directors and the employees of the defendant and an informal system of verbal instructions reminding the employees about safe working. This was supported by tool box meetings held from time to time when safety issues were raised. This system involved regular risk assessments after a blast exposed a new section of rock.

DELIBERATION

14 On a consideration of all of the evidence, I am satisfied that this breach constitutes a serious offence. While I am able to accept the defendant's submission in relation to the considerable steps already taken to implement a safe system of work, there was one clear and simple further step required, namely, to prohibit an employee being in the vicinity of the jumbo during the drilling operation. The effectiveness of this simple step was, indeed, accepted by the defendant. The combination of the previous incident where rock fell on 1 February 2001, together with the general nature of the rock encountered in this excavation, made the need for this simple step undeniably foreseeable. I am unable to accept the defendant's submission that the lack of previous injury provided a reasonable basis for the defendant to conclude that its existing system of safety and work were adequate to ensure the safety of its employees. Commonsense readily suggests that, where there is a danger of falling rock in a tunnelling or excavation operation, one of the first requirements of a safe system to ensure the health and safety of employees would be to prohibit them from working in the vicinity. The work was not necessary to be performed during the drilling action - the cleaning up is now safety performed after the jumbo has completed drilling requirements. Further, it is clear that the risk presented by falling rock was potentially far greater than the injuries (themselves significant) suffered by Mr Mearns. Apart from the amputation of his thumb, it is entirely possible that employees working in this situation may have been more seriously injured, for instance by falling rock striking them on the head. In addition, the previous experience of the defendant and the absence of injuries, without requiring employees not to work in the vicinity of a drilling operation, has to be tempered by the fact that the defendant has not continually engaged employees since commencing business in 1989 and, further, although it has been engaged in some large and prestigious projects using employees, the number of employees has been relatively few and those projects have been small in number.

15 In this case, both general and specific deterrents are matters properly to be considered in the assessment of a penalty. The defendant operates in the construction industry which is not only a large and important industry but is one which involves large scale employment by both contractors and sub-contractors. This case demonstrates that experience in the industry and the implementation of a system of work without considering all the implications and risks associated with that work is insufficient to meet the demands of the Act. In relation to specific deterrents, that aspect has a somewhat lesser role to play in the present case but it is not without its significance. The defendant continues to pursue contracts and although no similar work has been undertaken since the accident involving Mr Mearns there is a clear intention for the defendant to pursue this work.

16 Having regard to these matters I am of the view that a penalty of $135,000 is appropriate.

17 In relation to subjective factors, I agree with the prosecutor's submissions that the defendant is entitled to the benefit of a number of considerations. On the material before the Court, I accept that a plea of guilty was entered at an early stage and that the co-operation of the defendant with the WorkCover Authority resulted in this matter coming to this stage with a minimum of time and expense. In my view, the defendant is entitled to a discount of 25 per cent in relation to its early plea.

18 I also accept as a significant factor the absence of prior convictions and the good industrial citizenship demonstrated by the defendant. The defendant operates in a heavy industry which is inherently dangerous. The fact that it has been able to perform work in that industry since 1989 without its employees suffering a workplace injury because of inattention to appropriate systems of work speaks well of the defendant's approach to its work and its workforce. The defendant has enhanced its system of hazard identification and, following the accident which gave rise to these proceedings, the defendant commissioned an expert to assist it in completing a management manual which addresses improvement in the defendant's management and operational procedures including those regarding occupational health and safety.

19 I also accept the defendant's submission that in a number of ways it has demonstrated contrition in relation to the occurrence of the accident and in particular by its concern for and later treatment of Mr Mearns.

20 In relation to these matters, I am of the view that the defendant is entitled to a further discount of 10 per cent. The total discount allowed in this matter is therefore 35 per cent.

ORDERS

1. The defendant is convicted of the offence to which it pleaded guilty in Matter No IRC 1793 of 2002.

2. The defendant is fined the sum of $87,750 with moiety thereof to the prosecutor.

3. The defendant is to pay the prosecutor's costs of these proceedings as agreed or as ordered by the Court.

In relation to Order 3, in the absence of agreement, the matter may be re-listed on notice given to court and the other party within 21 days.

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LAST UPDATED: 17/02/2003