Inspector Green v Heinrich Constructions Pty Limited [2003] NSWIRComm 199 (20 June 2003)

Last Updated: 30 June 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Green v Heinrich Constructions Pty Limited [2003] NSWIRComm 199

FILE NUMBER(S): IRC 979

HEARING DATE(S): 24/03/2003

DECISION DATE: 20/06/2003

PARTIES:

PROSECUTION

Inspector Ritchie Green

DEFENDANT

Heinrich Constructions Pty Limited

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Mr M Cahill of counsel

Solicitor: Mr N A Correy

Moray & Agnew

DEFENDANT

Mr S Wilson

Solicitor: Turks Legal

CASES CITED: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29

Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66

Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992)

Inspector Moore v Blacktown City Council [2003] NSWIRComm 47

Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464

Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312

Tyler v Sydney Electricity (1993) 47 IR 1

Wong v Melinda Group Pty Ltd (1998) 82 IR 118

WorkCover Authority of New South Wales (Inspector Victor Page) v Rawson Homes Pty Limited [2003] NSWIRComm 77

WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264

WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383

WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163

LEGISLATION CITED: Crimes (Sentencing Procedures) Act 1999

Occupational Health and Safety Act 1983

Supreme Court (Summary Jurisdiction) Act 1967

Workers' Compensation Act 1987

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Boland J

Friday 20 June 2003

Matter No IRC 979 of 2002

INSPECTOR GREEN V HEINRICH CONSTRUCTIONS PTY LIMITED

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

JUDGMENT

[2003] NSWIRComm 199

1 Heinrich Constructions Pty Limited, the defendant in these proceedings, had contracted with Barclay Mowlem Construction Limited ("BMCL") to provide formwork at a construction site in Rockdale, New South Wales. The provision of formwork included the use of what is known as a "Climbtrac system" which is a formwork system utilised for the construction of vertical formwork surfaces such as lift shafts, stair walls, columns and external perimeter walls on multi-storey buildings. The Climbtrac system is a proprietary jump-form system developed and manufactured by Boxer Engineering Pty Ltd ("Boxer").

2 On 4 September 2000 it was intended that the Climbtrac system be lifted from level 8 to level 9 by crane to form the formwork for the pouring of the walls of the lift shaft core on level 9. Richard Harnett, a formwork carpenter employed by the defendant, stayed on the platform of the system to free the system if it became jammed during the crane lift. As it was being lifted by the crane, part of the system, including the platform upon which Mr Harnett was standing, became detached from the tracks. Mr Harnett jumped clear by grabbing steel reinforcing bars embedded in the top of the wall of the lift shaft core. As he was hanging from the bars, the platform of the Climbtrac system swung inwards and crushed Mr Harnett's legs against the lift shaft core wall. Mr Harnett suffered broken tibias in both legs.

3 The defendant was prosecuted in relation to the incident on 4 September 2000 pursuant to s 15(1) of the Occupational Health and Safety Act 1983. Section 15(1) provides:

15. Employers to ensure health, safety and welfare of their employees

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

4 In his application for an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 the prosecutor, Inspector Ritchie Green of the WorkCover Authority of New South Wales, alleged that the defendant:

· failed to provide and maintain plant, to wit the Climbtrac system, in a condition that was safe and without risk in that the Climbtrac system contained only two lifting points for connection to a crane and had no secondary arrestor plates for use during its usual manner of operation.

· failed to provide and maintain a safe system of work for the lifting of the Climbtrac system.

· failed to provide such information, instruction, training and supervision as may be necessary to ensure health and safety in relation to work involving the use of the Climbtrac system.

5 The defendant pleaded guilty to the charge against it.

6 An agreed statement of facts was tendered by the prosecutor. After describing the Climbtrac system in some detail, the agreed statement described how Mr Harnett came to be injured on 4 September 2000:

10 By letter dated 23 February 2000 Boxer certified the Climbtrac System as being correctly set up to commence work on Tower B at the site.

11. By letter of 13 March 2000 Boxer notified Heinrich of specific recommended structural and safety modifications required to the external platforms of the Climbtrac System, including the addition of two additional crane lifting points and secondary arrestor plates. No further action was taken in respect of this letter by either Heinrich or Boxer until subsequent to 4 September 2000.

12. A letter dated 17 March 2000 directed to Heinrich, from consulting structural engineers, Kneebone Beretta & Hall, certified the Climbtrac system frame assembly as structurally adequate to support impose (sic) loads.

13. Until 4 September 2000 the construction of Tower B at the site continued with the Climbtrac System being operated in the manner described in paragraph 9 above.

14. On 4 September 2000 it was intended that the Climbtrac System be lifted from level 8 to level 9 to form the formwork for the pouring of the walls of the lift shaft core on the said level.

15. On previous occasions at the site when the platforms of the Climbtrac System had been lifted they had been known to jam from time to time. Some employees of Heinrich, and in particular Richard Harnett, were known to have ridden the platform as it was lifted by the crane so as to free any such jams.

16. On 4 September 2000 time had been designated on the hammer head crane located at the site by BMCL for the lifting of the Climbtrac System.

17. An employee of BMCL, Ian Hartmann, was operating the said crane.

18. Another employee of BMCL, Danny Wasson, a dogman, was designated by BMCL to direct the lift.

19. James Magee, the BMCL Safety Officer, identified Ian Davies an employee of Lindales Pty Limited as a certified dogmen and asked him to assist in directing the lift with Danny Wasson, as the regular second BMCL dogman was on leave.

20. The two dogmen were further directed in the tasks they were to complete that morning by another employee of BMCL, Laurie Tucker.

21. At approximately 10.00am preparation for lifting of the Climbtrac System commenced, with the shutters being moved away from the lift shaft core, and the Climbtrac System tracks being extended.

22. The first stage of the lifting process commenced with the formwork inside the lift shaft core being lifted by the crane.

23. Aaron Moxham, an employee of the Defendant acted as a spotter to ensure that persons were not below the external platforms whilst they were being lifted.

24. Danny Wasson then directed the lifting of the eastern external platform. During the lifting of this platform Danny Wasson’s two-way radio started to beep indicating that it was going flat. The lift was completed with the eastern external platform being placed safely.

25. There had been a history of the batteries of two way radios utilised by BMCL at the site going flat during a short period of operation, and there were few back-up batteries. The two way radios were provided at the site by BMCL

26. BMCL had on a number of occasions requested that Motorola, the manufacturer of the two way radios, attend the site to remedy the defects. Despite these attendances there were still difficulties experienced with the two way radios.

27. The hook of the crane was then removed and attached to the western external platform number 6.

28. Prior to lifting the western external platform number 6, the battery of the two-way radio of Danny Wasson went flat.

29. Ian Davies was requested by Danny Wasson to call the jump of the western external platform.

30. The only lift involving the Climbtrac system that Ian Davies had carried out prior to this was the lift of the eastern external platform earlier that morning.

31. Richard Harnett was located on the western external platform number 6 during the lift. Harnett had been on the eastern external platform during its lift earlier that morning.

32. Richard Harnett continued to ride the platform whilst it was lifted to ensure the free and unimpeded travel of the external climb frame and flipper components of the platform.

33. When the platform was in the appropriate position to complete being lifted, Ian Davies instructed the crane operator, Ian Hartmann, to stop. The crane continued to lift the platform.

34. Danny Wasson and Ian Davies both then asked for the crane to be stopped again.

35. Danny Wasson shouted this command as the battery of his two way radio was flat.

36. The crane operator only heard the final direction to stop and immediately took his hand off the hoisting lever. This stopped the crane continuing to lift. The external platform momentarily stopped before the external platform number 6 became detached from the tracks.

37. The platform then commenced to pivot about the 2 lifting points located at the front of the platform as it was no longer attached to the tracks affixed to the wall of the lift shaft core.

38. Richard Harnett jumped clear to the top of the lift shaft core and caught hold of embedded reo bars in the top of the wall of the lift shaft core.

39. Whilst Richard Harnett was hanging from the reo bars, as a consequence of the significant rotation of the external platform, the lateral bracing at the bottom of platform crushed his legs between itself and the lift shaft core wall.

40. Danny Wasson who was standing on top of the internal lift box without fall protection reached out and grabbed Richard Harnett and pulled him up on top of the internal platform.

41. Mr Harnett suffered broken tibias in both legs as a result of the said incident and was unable to attend to his employment for a period in excess of seven days immediately following the incident.

7 Mr M Cahill of counsel for the prosecutor also tendered a factual inspection report by Inspector Green relating to the incident, 24 colour photographs showing the worksite and the aftermath of the incident, and the defendant's record of prior convictions showing that an offence in 2000 under s 155(1) of the Workers' Compensation Act 1987 had been dealt with under s 10 of the Crimes (Sentencing Procedures) Act 1999.

8 Mr S Wilson, solicitor for the defendant, tendered an affidavit by Gerhard Hoss Heinrich, general manager and director of the defendant. Mr Heinrich was not required for cross-examination. Mr Heinrich's affidavit addressed the following relevant matters:

· He had been in the building and construction industry, primarily in the construction of formwork and the operation of numerous formwork systems for more than 24 years.

· The defendant employs 280 employees.

· The defendant's induction procedures and occupational health and safety procedures and systems.

· The use of the Climbtrac system including that since the incident on 4 September 2000 Mr Heinrich had been made aware of correspondence that Boxer claimed it posted to the defendant. The correspondence, dated 13 March 2000, enclosed details of modifications "that should be carried out to enhance the safety features of the "Climbtrac System'". The letter said "These modifications to the main 'Climbtrac' Frame will provide the means to have additional safety during lifting operations i.e. greater overtravel control." Mr Heinrich deposed that:

At the time of the accident, I had never seen or physically received this correspondence. There had been no follow up by Boxer by way of subsequent written correspondence. There was no copy of the correspondence sent to the Company's site office at the Rockdale Gardens site, no mention was made to the modifications that are claimed to be attached to the correspondence.

If I had been made aware of the modifications, I would have immediately implemented the changes with the assistance of Boxer.

· Following the accident, the defendant made immediate arrangements for Mr Harnett's wife to fly from their Gold Coast residence to visit her husband in Sydney. The defendant offered to help in the support of costs of Mr Harnett's children whilst his wife was in Sydney. Upon Mr Harnett's discharge from hospital the defendant arranged air transport for he and his wife to the Gold Coast and kept in contact with him during his recovery. Mr Harnett subsequently returned to work with the defendant as a formwork carpenter on the Climbtrac system.

· Mr Heinrich was very distressed over the fact that Mr Harnett had been injured and regretted the accident. Mr Harnett lost no pay or entitlements during his rehabilitation.

· Mr Harnett had been previously instructed in the work method process of using the Climbtrac system and had completed numerous lifts of the Climbtrac platforms. Mr Harnett had received a copy of the defendant's site safety plan and had attended a safety induction course.

· The defendant's safety plan identified both prior to the accident and under the revised safety plan following the accident that no employee was to ride on any machinery unless it was designed to carry passengers.

· Following the accident the defendant modified the procedure in relation to the lifting of the Climbtrac system including communications and tracking procedures. The defendant has also instructed that no personnel were to remain on the platform during the lifting process.

· Mr Heinrich understood that before the accident Mr Harnett had been told by his supervisor on a number of occasions not to ride on the platform whilst it was being lifted.

Submissions for the prosecutor

9 Mr Cahill helpfully provided detailed written submissions. The submissions addressed the facts underpinning the plea and the relevant objective and subjective factors to be taken into account in sentencing.

10 In summary, in relation to the objective factors, it was submitted:

· The maximum penalty is $550,000.

· The primary factor to be considered in determining sentence is the objective seriousness of the offence charged. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 79.

· In the present case the defendant was aware of the need to prohibit workers from riding on portions of the Climbtrac system whilst they were being "jumped" into position. The defendant had in place a written safety rule that prohibited workers, including Mr Harnett, from riding on machinery "unless it [was] designed to carry passengers." However, due to platforms becoming jammed in the course of previous "jumps", an informal practice had developed which involved workers such as Mr Harnett, riding on the platforms whilst they were being "jumped" into position so that any jams could be released whilst the lift continued.

· Further, Boxer notified the defendant of the need to undertake modifications to the lifting platforms. The modifications were designed to render the platforms more stable - thereby reducing the risk of the platforms jamming whilst being "jumped" and also to reduce the risk of the platforms disengaging from the climbing track at the end of a "jump" due to over-travel. Neither Boxer nor the defendant took any further steps to ensure that the proposed modifications were made.

· In the circumstances, the defendant's failure to ensure that its employees did not ride the Climbtrac platforms whilst they were being "jumped" constituted a significant breach of basic safe working principles.

· Further, that the defendant was cognisant its employees were not complying with the relevant safe working standard must aggravate the offence.

· Both general and specific deterrence are matters that should be taken into account in determining the appropriate penalty to be imposed. It is rare that a sentencing court need not impose a sentence that includes an element of general deterrence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29. In this regard, the construction industry is notoriously dangerous and the dangers associated with high rise building construction are manifest. In relation to specific deterrence, the defendant is entitled to have its good industrial record taken into account.

11 In relation to the subjective factors it was submitted:

· The defendant is entitled to have the full benefit of the early plea of guilty and to have this reflected in an appropriate discount of the sentence.

· A plea of guilty may attract a greater degree of leniency where the Court is satisfied that the plea of guilty reflects contrition on the part of the defendant.

· The defendant is entitled to a discount with respect to its undoubted cooperation with the WorkCover Authority in the investigation of the incident leading to the charge.

· The defendant is entitled to the leniency that is normally extended to an employer who does not have a significant record of failing to meet its obligations under the occupational health and safety regime.

12 Mr Cahill submitted that the offence reflected a significant failure on the part of the defendant to meet its obligations under the Act and that the Court should impose a significant monetary penalty upon the defendant.

Submissions for the defendant

13 The submissions on behalf of the defendant may be summarised as follows:

· The defendant pleaded guilty at the earliest opportunity.

· The defendant's managing director, Mr Heinrich, was not aware of the manufacturer's recommendations regarding modification of the Climbtrac system although it was not contested that the information was sent to the defendant.

· The defendant did not endorse or authorise Mr Harnett to ride on the platform though the defendant acknowledges that clearer instructions or supervision should have been given to Mr Harnett not to ride on the platform.

· The defendant did not have substantial control over the communications system although it acknowledges that it should have taken some action given that some of the defendant's employees were aware of malfunctions in the two way radios.

· The defendant had in place documented work safety procedures and an induction program for new employees that addresses occupational health and safety issues.

· The risks to safety caused by the defendant's omissions were not of such a nature that they would attract a penalty at the high end of the scale.

· The defendant is remorseful and contrite. The defendant provided assistance and support to the injured worker and his family.

· The defendant is effectively a one-person operation.

· The defendant has a demonstrable commitment to occupational health and safety.

· The defendant has a good safety record.

· The defendant cooperated fully with WorkCover.

Consideration

14 As I noted in WorkCover Authority of New South Wales (Inspector Victor Page) v Rawson Homes Pty Limited [2003] NSWIRComm 77:

The proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act, namely, the establishment of safe standards and the protection of the workforce: WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 at par [19] per Hungerford J.

15 The defendant submitted that the Court should regard the defendant as a "one man" operation. I note there are only two directors and that Mr Heinrich formed the company. However, I also note the company is not an insubstantial one, employing some 280 employees.

16 The critical failure on the part of the defendant was its failure to ensure that persons did not ride on the Climbtrac platform as it was being lifted by crane to the next highest level. The defendant did have in place a specific instruction that employees were not to ride on any machinery unless it was designed to carry passengers. It was admitted by the defendant, however, that "Some employees of Heinrich, and in particular Richard Harnett, were known to have ridden the platform as it was lifted by the crane so as to free any such jams." Thus the defendant was aware of the risk to safety of riding on the Climbtrac platform but failed to enforce its instruction to employees, and in particular, Mr Harnett, not to do so. The risk was, therefore, reasonably foreseeable and could have been avoided by simple instruction and supervision.

17 The other failures by the defendant were the failure to provide and maintain the Climbtrac system in a condition that was safe and without risk. As the accident on 4 September 2000 demonstrated, if the platform was lifted too high it would become detached from its tracks affixed to the wall of the lift shaft core and then pivot in midair. The manufacturer, Boxer Engineering, had apparently earlier recognised the need for additional lifting points to prevent pivoting and the need for secondary arrestor plates for greater "overtravel" control and had passed on its recommendations to the defendant to modify the system accordingly. In relation to the failure to modify I accept Mr Heinrich's evidence that if he had been made aware of the modifications he would have immediately implemented them. However, it seems to me that if the platform could come free of its tracks if a crane lifted it too far - an eventuality that, in my opinion, was reasonably foreseeable - it represented a serious detriment to safety which should have been obvious not only to the manufacturer but also to the defendant. Steps should have been taken independently by the defendant to remedy the danger, especially in circumstances where it was aware that employees were known to ride on the platform.

18 I note from the evidence that Boxer certified that Heinrich had assembled the Climbtrac system on site in accordance with its specifications and I expect that the defendant believed that given such certification it was entitled to rely on this as representing the system was safe to use. In this respect, however, given the strict liability upon an employer under s 15(1) of the Act it is incumbent on the employer to take steps to ensure that any system such as Climbtrac does not present a risk to health and safety and not to rely solely on someone else's assurance regardless of whether that someone else manufactured the system or is to be regarded as an expert in relation to the system: See Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 at [31].

19 There was also the failure by the defendant to take action to ensure that the two way radios used by its employees in the crane lifting process were reasonably dependable. Knowing that the radios were defective, it was reasonably foreseeable that they might fail during a lifting operation and critical instructions might not be heard by the crane operator. Simple remedial steps could have been taken by the defendant to ensure the radios were in proper working order. The fact that the defective radios were supplied by Barclay Mowlem is no excuse for continuing to use them in operations as critical as crane lifts.

20 The occurrence of death or serious injury may manifest the degree of seriousness of the risk to safety: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch’ng) (1999) 90 IR 464 at 476; WorkCover Authority of NSW (Inspector Ankucic) v McDonald’s Australia Ltd (2000) 95 IR 383 at 428-428; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185. In this case Mr Harnet suffered broken tibias in both legs.

21 In relation to the relevance of the maximum penalty for an offence, Wright J, President observed in Walco Hoist Rentals at 185-186:

The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council at 407 - 408.

22 The maximum penalty in this matter is $550,000.

23 I consider that the offence was in the moderately serious range but it was not a case of an employer completely ignoring a known and apparent danger or having no regard to appropriate occupational health and safety standards in the workplace.

24 In relation to deterrence, the principles were discussed by a Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. In this connection I take into account that the defendant operates in an inherently dangerous industry and in the construction of high-rise buildings it is an essential part of the building operation to use cranes, hoists and lifting platforms. In setting the level of penalty it is important to ensure it is set at a level that will realistically operate as a deterrent but not so high as to be oppressive.

25 As to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps to improve safety following an accident are relevant. I accept that the defendant has a proper perspective on the fundamental importance of a high standard of occupational health and safety in its workplaces. The measures taken by the defendant to improve its occupational health and safety systems since 4 February 2000 include:

· Remedial steps to review the work method procedures associated with the use of the Climbtrac system. This included a workplace risk assessment, consultation with employees about possible improvements and the introduction of modifications as outlined in the Improvement Notice issued by WorkCover.

· A safe work method statement entitled “Operation of the Climbtrac Lift & Stair Wall Lifting Procedures” that was produced specifically for the operation of the Climbtrac system.

· The Climbtrac system was not used by any employee after the accident until the safe work method statement and the procedures contained in it had been introduced and explained to employees.

· The “Operation of the Climbtrac Lift & Stair Wall Lifting Procedures” document was compiled following a complete review of work practices utilised prior to the accident and best practice procedures associated with the use of the Climbtrac system. Employees were directly consulted during the review as to the proposed changes and procedures.

· The revised procedure focused heavily on ensuring all personnel leave the attached platform area and made particular reference to warning signs that were placed on each platform that stated “No Personnel to ride on platform while platform is being lifted”.

· The defendant has also re-emphasised to employees that ridding on the platform is not permitted through the regular tool box meetings on site.

· In addition to conducting the audit of work method procedures and implementing a written Safety Procedure Manual, the defendant informed Boxer and requested changes to the platform screens on the 4 platforms to be increased, that being rear platforms screens increased from 2 metres to now being 3 metres in height and end platform screens being increased from 3 metres to now being 4 metres in height.

· The defendant also modified the work method statement to ensure the surface area where personnel work is stable and clear of any loose hazard. This includes the removal of any rubbish, loose concrete, reinforcement and formwork materials from the area so as to eliminate any potential trip hazards and to ensure the platform could be manoeuvred without any restrictions.

· The new work procedures have been incorporated and implemented on each subsequent occasion the platforms have been lifted.

· In particular, the defendant reinforced the requirement that a “spotter” be engaged to supervise the area below the lifting to ensure it is kept clear of personnel.

· In addition to introducing the new lifting procedures, the defendant has modified the Climbtrac system consistent with the specifications provided by Boxer by attaching arrestor plates, attaching additional lifting lugs for a 4 chain lift to each platform and continually monitoring that the tracks are in there perfect vertical position and the alignment is correct we are also ensuring that all rolling gear and bearings are properly greased and maintained.

26 The comprehensive and commendable changes undertaken by the defendant following the accident indicate the seriousness with which the defendant treats the matter. Accordingly, whilst I have had regard to the need for specific deterrence, it has not figured prominently in my consideration as to penalty.

27 There are a number of subjective factors to be taken into account in sentencing. These factors are:

1. The defendant pleaded guilty at an early stage.

2. The defendant cooperated with the prosecutor in his investigations.

3. The defendant has taken commendable steps to ameliorate the particular risks that gave rise to the charge in this matter.

4. The defendant is committed to an ongoing program of occupational health and safety improvement.

5. The defendant has no prior convictions under the Occupational Health and Safety Act. The defendant has operated in the building and construction industry for more than 24 years and has a very good safety record.

6. The defendant provided very commendable assistance to the injured worker and his family and showed genuine remorse and contrition.

28 Having regard to the objective seriousness of the offence committed by the defendant, I consider an appropriate penalty to be $85,000 with a discount for the early plea of 25 per cent and a further 10 per cent for other subjective factors. This results in a fine of $55,250.

Orders

29 The Court makes the following orders:

1) The offence is proven and a verdict of guilty is entered.

2) The defendant is convicted of the offence as charged.

3) The defendant is fined an amount of $55,250 with a moiety thereof to the prosecutor.

4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

LAST UPDATED: 23/06/2003