Inspector Green v Coffey and Cork [2004] NSWIRComm 110 (28 April 2004)

Last Updated: 3 May 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Green v Coffey and Cork [2004] NSWIRComm 110

FILE NUMBER(S): IRC 2711 & 2712

HEARING DATE(S): 08/04/2004

DECISION DATE: 28/04/2004

PARTIES:

PROSECUTOR

Inspector Richie Green

FIRST DEFENDANT

Stephen Coffey

SECOND DEFENDANT

Martin Cork

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr M P Cahill of counsel

Solicitor: Mr J O'Connell

WorkCover Authority of New South Wales

FIRST DEFENDANT:

Mr B K B Cross of counsel

Solicitor: Mr Hennessy

Curwood & Partners

SECOND DEFENDANT:

Mr R S Warren of counsel

Solicitor: Ms S Gill

Hunt and Hunt Lawyers

CASES CITED: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29

R v Thompson; R v Houlton (2000) 49 NSWLR 383

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Occupational Health and Safety Act 1983

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: BOLAND J

Wednesday 28 April 2004

Matter No IRC 2711 of 2002

INSPECTOR RICHIE GREEN v STEPHEN COFFEY

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983

Matter No IRC 2712 of 2002

INSPECTOR RICHIE GREEN v MARTIN CORK

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983

JUDGMENT

[2004] NSWIRComm 110

1 Stephen Coffey and Martin Cork ("the defendants") were directors of Horvat Construction Pty Ltd ("Horvat"), a company that is now under external administration pursuant to a Deed of Arrangement dated 16 February 2001.

2 Horvat was prosecuted for a breach of s 16(1) of the Occupational Health and Safety Act 1983 in relation to an incident that occurred on 15 May 2000 at Darling Point in the State. The defendants were also prosecuted for breach of s 16(1) pursuant to s 50(1) of the Act. The defendants pleaded guilty. Having heard the evidence and submissions relating to sentence in respect of the defendants the Court was advised that the prosecutor sought leave to withdraw the charge against Horvat. Counsel appearing for Horvat and Mr Cork and counsel appearing for Mr Coffey took no objection to this course. The Court granted leave to the prosecutor to withdraw the charge against Horvat with no order as to costs.

3 The incident that occurred on 15 May 2000 involved the collapse of a wall exposing certain persons not in the employ of Horvat to risks to their health and safety. One person suffered serious injuries as a result of the collapse. The application for order in relation to Mr Coffey contained the following particulars:

1. At all material times the defendant was a director of Horvat Construction Pty Ltd [ACN: 051 943 009] (“the said corporation”), a corporation whose registered office is situated at Suite 607, 20 Bungan Street, Mona Vale, in the State of New South Wales.

2. At all material times the said corporation conducted business in the State of New South Wales as a construction firm offering, amongst other things, its services in respect of management of construction projects.

3. At all material times the said corporation carried on business in its undertaking as a construction firm offering its services in respect of the management of a construction project at the said premises such service being performed for fee or reward.

4. On the said date and at the said premises the said corporation did contravene section 16(1) of the Occupational Health and Safety Act 1983 (“the said Act”), in that being an employer it did fail to ensure that persons not in it’s employment, particularly Luke Maxwell and Jarmo Silvola, were not exposed to risks to their health or safety arising from the conduct of the corporation’s undertaking, to wit, while they were at it’s place of work in that:

a. Failed to provide or maintain a safe system of work in relation to the stabilisation of the existing western, double skin masonry wall of the building that was being renovated at the said premises at 4a Etham Avenue Darling Point in relation to the employer’s non-employees, particularly Luke Maxwell, Michael Lyall, Arti Salmi and Jarmo Silvola.

b. Failed to provide proper or adequate shoring to the western wall of the premises at 4a Etham Avenue Darling Point prior to the commencement of toothing work to the said wall.

c. Failed to provide proper or adequate training in relation to the identification of the hazards including safe work procedure for toothing work at the said premises at 4a Etham Avenue Darling Point.

d. Failed to provide proper or adequate information in relation to the identification of the hazards (and safe work procedure for toothing works) at the said premises at 4a Etham Avenue Darling Point.

e. Failed to provide proper or adequate instruction in relation to the identification of the hazards at the said premises at 4a Etham Avenue Darling Point.

f. Failed to provide proper or adequate supervision of persons, particularly Luke Maxwell, at the said premises at 4a Etham Avenue Darling Point.

g. Failed to properly and or adequately warn non-employees, particularly Luke Maxwell, Michael Lyall, Arti Salmi and Jarmo Silvola, of the dangers at the said premises at 4a Etham Avenue Darling Point.

h. Failed to make arrangements for ensuring safety and absence to the exposure of risks to health of the employer’s non-employees, particularly Luke Maxwell, Michael Lyall, Arti Salmi and Jarmo Silvola, at the said premises at 4a Etham Avenue Darling Point, particularly failing to make arrangements for the provision of an adequate risk assessment.

i. Fail to provide or maintain means of egress from the said premises at 4a Etham Avenue Darling Point that was safe and without risks to health to the employer’s non-employees, particularly Luke Maxwell.

As a result of the said failures, Luke Maxwell sustained serious injuries and Michael Lyall, Arti Salmi and Jarmo Silvola were placed at the risk of injury.

5. The defendant, being a director of the said corporation, is deemed to have contravened section 16(1) of the Occupational Health and Safety Act 1983 pursuant to section 50(1) of the Occupational Health and Safety Act 1983.

4 The particulars of the charge relating to Mr Cork were essentially the same in relevant respects as those relating to Mr Coffey.

5 The prosecutor tendered an agreed statement which contained the following facts (formal parts omitted):

4. At all material times the Defendants, STEPHEN COFFEY and MARTIN CORK, were duly appointed directors of the Company.

5. At all material times, the Company carried on business in the management of construction projects, both the State of New South Wales and elsewhere.

6. At all material times Luke Maxwell carried on business as a sub-contract bricklayer and also provided his services as a building foreman or site supervisor through Maxwell Bricklaying Services Pty Ltd, ACN 066 900 829. At all material times Mr Maxwell’s services were contracted exclusively to the Company.

7. At all material times FDF Demolition & Salvage Pty Ltd (FDF), ACN 079 906 068, carried on the business of demolition at the said premises and elsewhere in the State of New South Wales.

8. At all material times Kathleen Byrne and John Byrne were the registered owners of the subject portion of the premises known as 4a Etham Avenue, Darling Point [‘the site’]

9. In December 1999 Kathleen and John Byrne engaged the services of Benchley Architects to prepare architectural drawings in relation to the proposed renovation or reconstruction of a portion of the premises located on the site [‘the works’].

10. On 16 December 1999 Kathleen Byrne and John Byrne contracted with Sameh Ibrahim, trading as the Ibrahim Consulting Group, to provide engineering advice in relation to the structural design of the works and to prepare engineering documentation with respect to the proposed works detailed in the architectural drawings prepared by the architects. By virtue of the subject contract, Sameh Ibrahim agreed to carry out spot checks of the structural works constructed at the site during the course of the works.

11. On 6 February 2000 Kathleen Byrne and John Byrne contracted the Company to provide its services as a construction manager in relation to the works. [‘the construction management contract’]

12. Pursuant to the terms of the construction management contract the Company was obliged, amongst other things, to develop a preliminary construction programme, review and monitor such programme, and to advise and make recommendations regarding construction techniques. In addition, the Company was required to co-ordinate and supervise the work undertaken by trade contractors.

13. On 16 February 2000 Kathleen Byrne and John Byrne contracted FDF Demolition and Salvage Pty Ltd to provide its services as a demolition contractor in relation to demolition works to be performed at the site as part of the works.

14. On or about 17 February 2000 Luke Maxwell commenced work at the site.

15. Thereafter, Mr Maxwell acted as the foreman of works at the site. In this regard, Mr Maxwell consulted with and gave instructions in relation to the work to be performed at the site by various trade sub-contractors, such as FDF Demolition Pty Ltd and the formwork carpenters, who were working at the site.

16. Prior to the commencement of the works, including the demolition work to be performed by FDF Demolition and Salvage Pty Ltd, while the Company had a Company Safety Plan, the Company did not prepare any site specific occupational health and safety plan, i.e. no risk assessment or safe work method statement. Nor did the Company prepare a dilapidation survey, including an evaluation of the stability of the external brickwork of the premises.

17. Similarly, the Company did not require FDF Demolition and Salvage Pty Ltd or any other sub-contractor to develop and/or submit a safe work method statement before commencing work.

18. Further, the Company did not provide Mr Maxwell with a safe work method statement prior to Mr Maxwell commencing works preparatory to the laying of the concrete slab for the first level, including but not limited to the trimming nibs and the “toothing” of the retained masonry walls.

19. On 17 February 2000 a site meeting was held between Luke Maxwell, Francesco De Francesco, a person employed by FDF Demolition and Salvage Pty Ltd [‘FDF’] and Sameh Ibrahim. The purpose of the meeting was to discuss aspects of the demolition that was to be undertaken.

20. At that meeting Mr Ibrahim advised Francesco De Francesco and Luke Maxwell that the double skin wall attached to each of the western and eastern external walls be retained as a buttress to support the perimeter brick walls. The returns of the North-Eastern and North-Western corners were also retained as a buttress.

21. Mr Ibrahim also designed the “toothing” of the retained masonry walls required for the laying of the suspended first floor slab.

22. But, Mr Ibrahim was not asked to and did not prepare a shoring detail for the support of the western wall.

23. Further, Mr Ibrahim alleges that he advised Mr Maxwell that an independent structural engineer should be consulted with respect to the preparation of a shoring plan for the support of the retained masonry walls, but Mr Ibrahim did not arrange for a follow up inspection of the wall stabilisation on the site.

24. On or about 22 February 2000, following notification to WorkCover, FDF commenced demolition work in respect of the said premises. The specific demolition tasks that were scheduled to be undertaken by FDF included, amongst other things, demolition of a portion of the existing roof and any supporting structures; demolition of existing ceilings, existing timber floors and related supporting structures in the relevant portions of the building; the demolition of a staircase; and demolition of brickworks nominated in the architectural plans.

25. The demolition of the relevant portions of the dwelling was completed by 25 February 2000. At that time, the relevant portions of the roof and its supporting structures, the ceilings, the floors and the windows had all been stripped out of the portion of the building that was under renovation. The façade of the dwelling remained, but no external or internal bracing and/or shoring of the walls was installed, notwithstanding the prior advice that the double skin wall attached to each of the western and eastern external walls be retained as a buttress to support the perimeter brick walls.

26. At this point in time the retained western masonry wall was in excess of 8 metres in length and in excess of 6 metres in height. Nonetheless, the only support provided for stabilization of the western wall was the two buttress/nib walls which were retained by FDF by partial demolition of the pre-existing structure.

27. Prior to 15 May 2000, apart from a visual inspection of the external walls of the existing dwelling undertaken by Sameh Ibrahim, the Company made no attempt to determine whether the retained masonry walls, and in particular the western wall, were bowed or otherwise showing signs of stress associated with the demolition work that had been undertaken by FDF. In addition, the Company did not undertake any assessment of the condition of the mortar joints, or brick ties in the retained masonry walls, including the western wall.

28. Further, prior to 15 May 2000 two formwork carpenters, Mr Jarvo Silvola and Mr Arti Salmi, who were working from time to time on the site observed the unsupported western wall and were sufficiently concerned about the risk of the wall becoming unstable that they raised the issue with the site foreman, Mr Maxwell. Mr Maxwell assured them that the wall was stable. Mr Maxwell did not raise those concerns with Mr Coffey or Mr Cork, or any other employees of the Company.

29. In the days immediately preceding 15 May 2000 following the laying of the internal portions of the formwork deck, Mr Maxwell commenced “toothing” the retained masonry walls in preparation for the pouring of the suspended concrete first floor slab.

30. On 15 May 2000 Mr Maxwell attended at the site, together with a labourer employed by the Company, Mr Michael Lyall. On that day 2 sub-contract formwork carpenters, Mr Jarmo Silvola and Mr Arti Salmi were also working at the site.

31. At about 8.00 am on that morning:

(i) Mr Silvola and Mr Salmi were working below an opening in the formwork, completing the formwork for the internal staircase from the ground floor to the first floor;

(ii) Mr Lyall was also working in the vicinity of the staircase; and

(iii) Mr Maxwell was working on the formwork deck at the said premises near the western wall.

32. Mr Maxwell, after observing a piece of render falling onto the formwork from the western wall, noticed that the wall was swaying.

33. Mr Maxwell tried to support the wall with his hands. Mr Maxwell then realised that he was not able to do so and attempted to run away, as the wall collapsed. Subsequently, Mr Maxwell was buried in the rubble from the collapsing wall. Mr Maxwell remained trapped under the masonry and debris for approximately 1 hour and 20 minutes. For a part of the time that Mr Maxwell was trapped, he was unconscious. Mr Maxwell also suffered an asthma attack.

34. Further, after the collapse, the formwork onto which the wall collapsed became unstable and there was a significant risk of that structure collapsing under the weight of the debris from the wall collapse.

35. Due to the risk of a collapse, the formwork and its deck had to be propped and reinforced before Mr Maxwell could be freed.

36. As a direct result of the accident Mr Maxwell suffered a severe injury to his left thigh with a deep wound and the muscle exposed. He also suffered a fracture of his right femur, multiple abrasions, a shoulder dislocation, multiple bruising, internal bleeding, bruising to his penis requiring surgery and some cracked ribs. Mr Jarmo Silvola was placed at risk of injury.

37. In consequence of the injuries sustained Luke Maxwell was hospitalised subsequently having surgery to remediate the injuries in which he sustained. Upon the completion of the investigation of the said accident by the Workcover Authority on the 9 August 2001 Mr Maxwell was still unable to return to his former duties.

38. Further, as noted above, Mr Lyall, Mr Silva and Mr Salmi were working in the vicinity of a penetration through the formwork deck at the time of the collapse. As a consequence, Mr Lyall, Mr Silva and Mr Salmi were all at risk of injury from both the actual collapse of the western wall and from the subsequent risk of a collapse of the formwork onto which the wall had fallen. In this regard, Mr Salmi was actually struck by bricks and pieces of masonry from the collapse that fell through the penetration into the area in which he was working at the time of the incident.

39. On 16 February 2001 the said corporation entered into a Deed of Company arrangement with John Lord, Administrator. The Deed of Company arrangement has yet to be satisfied and the company has yet to be discharged from administration.

40. Prior to the incident the subject of these proceedings, the Company had undertaken the following actions in relation to safety:

(a) In 2000, the Company engaged Mel Crook and Associates to develop an Occupational Health and Safety Policy. At the time of the accident a Company policy had been developed, but site specific policies were still to be developed;

(b) Safety inductions were undertaken; and

(c) Weekly documented site safety inspections were undertaken.

41. Subsequent to the incident the subject of these proceedings, the Company undertook the following remedial actions:

(a) The Company ensured that a site specific Safety Policy, incorporating specific work method statements for the demolition of the western wall, was developed for the site;

(b) The Company ensured that site specific safety policies were developed for its other sites;

(c) The Directors of the Company immediately attended the site and, with an engineer and WorkCover representatives, ensured the safety of the site;

(d) The Company continued the weekly documented site safety inspections; and

(e) External scaffolding was erected with a stair tower for access.

6 In addition to the agreed statement of facts the prosecutor tendered:

(a) A factual inspection report relating to the subject incident by Inspector Ritchie Green dated 15 May 2000;

(b) Thirty five colour photographs of the incident scene taken by Inspector Green on 15 May 2000;

(c) Five photographs (one black and white and four colour) taken by Inspector Green on 15 May 2000 showing various aspects of the collapsed wall;

(d) An engineering report on the wall collapse by Michael Cheng, Engineer, Construction - Intervention.

7 The evidence for the defendants consisted of their affidavits. The defendants were not required for cross-examination. In his affidavit Mr Coffey described his background, qualifications (carpenter) and experience including self-employment as a building contractor in Yorkshire, England and surrounding districts. Mr Coffey described the establishment of Horvat in partnership with Mr Cork and the company's early success. In December 2000, however, Horvat was placed in Administration. It was deposed that the main cause for the appointment of the Administrator was a contractual dispute regarding a development in Ultimo. Horvat lost $700,000 in that dispute.

8 In relation to the Darling Point site Mr Coffey described the engagement of Mr Maxwell as site foreman, his experience and Mr Maxwell's responsibilities including:

[I]dentifying and implementing any workplace, health and safety policy instruction or a procedure for a building site and to oversee the continuance and observance of any such policy or direction.

9 In relation to the subject incident Mr Coffey said:

In the days leading up to the accident, I had spoken to Luke Maxwell with the object of getting an up date report on the progress of works on the site. I was aware that the ground floor of the site had been constructed and that the works were moving onto the first floor with the procedure for laying the formwork and prepping for laying the floor on the first floor to be much the same as the procedure when constructing the ground floor. It seems to me that Luke Maxwell understood my direction in that regard.

One of those directions that we had discussed when constructing the ground floor and which was to apply for each subsequent floor, was to maintain the short wall, which was constructed perpendicular to the Western Wall, in tact to act as a buttress. This wall was of nine inch brick construction and was approximately 1 to 1.2 metres long when measured from the Western wall and 3 metres in height, the same height as the Western wall (which is the wall which fell down). There was also another nib wall located 4 metres to the North of this buttress wall, which was also to act as a buttress to the Western wall. This wall was approximately half a metre in length when measured from the Western Wall and was, again 3 metres in height, the same height as the Western Wall.

At the time of the accident, Luke Maxwell had been directed to, as part of the procedure for laying the first floor slab, to cut “toothings” in the brick wall which was along the Western wall, for the purpose of laying the concrete floor. I had specifically directed Luke Maxwell not to remove any brick work from either of the short walls (referred to above as the buttress and nib walls) which were acting as buttresses to the Western wall. Removal of any bricks from either of these walls would seriously and detrimentally affect the integrity and stability of the entire Western wall. I believe that Luke Maxwell did remove some bricks from these buttrice (sic) walls in order to “tooth” them.

10 Mr Coffey said that in about March 1999 Horvat engaged Mel Crooks and Associates, a firm involved in occupational health and safety, to develop both company and site specific occupational health and safety policies. Mr Coffey said that at the time of the accident a Company policy had been developed, but site-specific policies were still to be developed. Mr Coffey also said prior to the accident, safety inductions of staff were undertaken and weekly documented site safety inspections that were undertaken by Mr Maxwell.

11 Following the accident Mr Coffey said Horvat undertook a number of steps to ensure safety. In particular, Horvat ensured that a site-specific safety policy, incorporating specific work method statements for the demolition of the western wall, was developed for the site. Further, Horvat ensured that site-specific safety policies were developed for all of its other sites. Site safety officers were appointed to each site. At the Darling Point site:

[E]xternal scaffolding was erected with a stair tower for access. The building was in a state as requested by Mr Maxwell for the purpose of constructing the first level’s flooring. This including scaffolding for floor work and supporting walls in order for the pouring of the flooring on that level to take place.

12 Mr Coffey said he was "was deeply affected by what had happened and felt a great deal of sadness for Luke’s condition" and continues to "feel remorse and I maintain a reluctance to employ someone and ever have the same experience again."

13 Mr Coffey's income tax returns for the financial years ended 30 June 2000, 30 June 2001, 30 June 2002 and 30 June 2003 were tendered. In relation to these Mr Coffey deposed that:

The income disclosed in the copies of my income tax returns represents the entirety of my income for the financial years stated. I have no income outside of Australia. The money I earned from Raindex Enterprises Pty Ltd was for consultancy fees. This company is owned by my son to whom it was transferred at the time of my family split-up. I remain a director of the company because two directors are required under the Memorandum and Articles of Association of the company.

I was divorced in approximately the year 2001 and achieved a modest amount of money from the joint property settlement with my ex-wife.

Since that time I have been living on this amount of money which represents my savings. This amount has been gradually decreasing since the year 2001.

14 Mr Cork described his background and experience (carpenter and site foreman) and the setting up of Horvat in 1991 to engage in residential and commercial building work. Mr Cork said his role was office based and that he was the Director in charge of administration and the day to day running of the company.

15 Mr Cork referred to the appointment of an external administrator in December 2000 and the subsequent entering into of a Deed of Arrangement. Mr Cork said that given Mr Maxwell's "proven ability to act as site foreman at these sites, he was appointed site foreman at the project of Ethan Avenue, Darling Point."

16 In relation to the assistance provided to Mr Maxwell, Mr Cork said:

Following the accident, Mr Coffey and I were in touch with Mr Maxwell on a daily basis to check his progress. We also made several visits to hospital. Horvat continued paying Mr Maxwell his average take-home pay for up to six weeks (until his personal accident insurance payments commenced) to ensure that he would not suffer any financial hardship as a result of the accident.

17 Mr Cork also referred to the appointment of Crooks & Associates and that Mr Crooks "had provided site specific safety manuals and was in the process of implementing site inductions on all projects at the time of the accident." Mr Cork said a site-specific safety manual had been issued in respect of the Darling Point site and to the best of his belief and knowledge, Mr Maxwell had been provided with a copy of this document prior to the accident. It was further deposed that:

Mr Maxwell had attended safety seminars organised by Horvat and conducted by Mr Crooks prior to the accident.

All Horvat employees were issued with personal protection equipment including a hard hat, steel cap boots and ear and eye protection.

Until the accident to Mr Maxwell, Horvat had a very good safety record. To the best of my knowledge, no serious accidents had occurred on Horvat sites other than small cuts and sprains.

18 Mr Cork indicated that he was currently employed at Provent Property Group (“Provent”) as a development manager. Mr Cork said he understood Mr Maxwell had recovered well and he had returned to the work force as a builder/foreman. Mr Cork deposed:

I remain deeply upset by this incident. I understand the importance of work place safety and this incident has had a lasting affect on the way I carry out my business.

Consideration

19 The primary consideration in sentencing is the gravity of the offence viewed objectively. Any penalty will be set according to the seriousness of the offence on a scale of zero to the maximum in these cases, which is $55,000. Having determined the objective seriousness of the offence, a consideration of subjective features of the offence will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified.

20 Relevant considerations going to the objective seriousness of the offences in the two matters before the Court are as follows:

(a) Whilst Horvat had retained the services of an occupational health and safety consultant to develop a company wide occupational health and safety policy, including “site particular” occupational health and safety packages, site-specific packages had not been put in place prior to the subject incident. There was evidence that Horvat provided site safety inductions prior to the subject incident although the nature and extent of these inductions were not in evidence. It was also said that Mr Maxwell undertook weekly documented site safety inspections but no details of these were provided.

(b) It was said in Mr Coffey's affidavit that Mr Maxwell was responsible for identifying and implementing any workplace health and safety policy, instruction or procedure at a site occupied by Horvat. As Mr M Cahill of counsel for the prosecutor submitted, however:

The Corporation was not entitled to contract out of its liability under the Act by retaining the services of Mr Maxwell as an independent, self-employed site supervisor. Nor could the Corporation merely appoint Mr Maxwell to supervise the site without ensuring appropriate systems of work were in place, including safe work methods and that Mr Maxwell was trained in and complied with those systems.

(c) In September 1999 a report by a geotechnical engineer (PPK Environment & Infrastructure Pty Ltd) indicated that the western wall was cracked. The further report by the WorkCover engineer, Mr Cheng, stated:

The Geotechnical Investigation by PPK Environment & Infrastructure Pty Ltd was ignored.

The toothing work would have severely undermined the integrity of the brickwalls concerned. The wider the tooth and/or the more the number of openings made, the weaker the wall will become.

The construction of the new brick wall on the ground floor could stiffen the eastern side of the western wall a bit before its collapse

Owing to the harsh coastal atmosphere and weathering, the deterioration of weak lime mortar joints and the ties of the stretcher bond brickwalls is evident.

The wall toothing work at the perimeter walls which are part of the new building structure should have been specified, inspected and monitored by the structural engineer.

The collapse of the western wall, which was reported cracked by the geotechnical engineer, then severely undermined by toothing work and not stabilised by bracing/shoring, was triggered by gust.

(d) Mr Cheng also said in his report:

The wall toothing work was carried out without any specifications, drawing details, work method statements and risk assessment.

A safe system of work should have been devised in conjunction with the structural engineer, the main contractor/builder and the demolisher.

...

No proper bracing and/or shoring work was done to support the walls on which toothing work had to be done.

(e) The failure to provide shoring, or to otherwise support the western masonry wall, constituted a breach of Clause 17 of Regulation 73 of the Construction Safety Regulations which provides:

Where any construction work is carried on which is likely to reduce, so as to endanger any person, the security of any part of an existing building or structure or of a building or structure in the course of construction, take all practicable precautions by shoring or otherwise to prevent danger to any person from the collapse of the building or structure or the fall of any part thereof.

(f) Prior to 15 May 2000 two formwork carpenters were sufficiently concerned about the risk of the wall becoming unstable that they raised the issue with Mr Maxwell but no action was taken.

21 In his affidavit Mr Coffey said:

I had specifically directed Luke Maxwell not to remove any brick work from either of the short walls (referred to above as the buttress and nib walls) which were acting as buttresses to the Western wall. Removal of any bricks from either of these walls would seriously and detrimentally affect the integrity and stability of the entire Western wall. I believe that Luke Maxwell did remove some bricks from these buttrice (sic) walls in order to “tooth” them.

22 I am prepared to take this evidence into account in Mr Coffey's favour in determining the objective seriousness of the offence. However, Mr Coffey's direction to Mr Maxwell pales almost into insignificance when the defendant's other failures are considered and which include the failure to make any assessment of the condition of the mortar joints or brick ties in the retained masonry walls, including the western wall, the failure to have proper regard to the fact the western wall was cracked, the failure to provide shoring, or to otherwise support the western masonry wall, the failure to provide proper or adequate supervision of Mr Maxwell, the failure to provide proper or adequate information in relation to the identification of the hazards (and safe work procedure for toothing works) and the failure to provide adequate training and instruction relating to hazards on the site.

23 The state of the western wall represented an obvious risk to safety about which no proper steps were taken to avoid the risk, namely, that it might collapse and injure persons. There was no excuse, in my opinion, for the failure to take all practicable precautions by shoring or otherwise to prevent danger to any person from the collapse of the wall.

24 A relevant aggravating factor is that the injury caused to Mr Maxwell by the offence was substantial: Crimes (Sentencing Procedure) Act, s 21A(2)(g). Mr Maxwell suffered multiple fractures, multiple abrasions, multiple bruising, internal bleeding, bruising to his penis requiring surgery and some cracked ribs.

25 It is clear from the Full Bench's consideration in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 that general deterrence is a major consideration in occupational health and safety cases. Indeed, the Full Bench at [75] said: "The need for general deterrence in relation to serious offences under the Act is undeniable." This case is yet another example of the dangers associated with work in the building and construction industry. It is appropriate that an element be included in the penalties in this case for general deterrence.

26 I do not consider that the penalties should reflect a significant element for specific deterrence. I do not consider there is a serious likelihood the defendants would re-offend.

27 I consider the following mitigating factors prescribed by s 21A(3) of the Crimes (Sentencing Procedure) Act may be taken into account in respect of both defendants:

(f) the offender was a person of good character;

(g) the offender is unlikely to re-offend;

(h) the offender has good prospects of rehabilitation;

(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner.

28 Additionally, prompt and appropriate steps were taken to avoid a re-occurrence of the subject incident, the defendants have no prior convictions, the defendants cooperated with the WorkCover Authority in its investigation of the incident and the defendants pleaded guilty.

29 As to the guilty pleas, the Court is required to take these into account: s 22 of the Crimes (Sentencing Procedure) Act. I intend to discount any penalties by 17.5 per cent for the utilitarian value of the pleas: R v Thompson and R v Houlton (2000) 49 NSWLR 383.

30 Mr Coffey has asked that the Court take into account his financial circumstances pursuant to s 6 of the Fines Act 1996. Mr Coffey had no taxable income for the 2002 and 2003 tax years. Since 2001 he has been living on money from the joint property settlement with his ex-wife. It is appropriate that I take these matters into account although it was not said by the defendant that his taxable income and money from a divorce settlement represented the means of the defendant within the meaning of s 6 of the Fines Act. It is difficult to accept that the limited information provided by Mr Coffey was all that was reasonably and practicably available to him to provide to the Court so that the Court may make an informed assessment of the defendant's means. The onus is on the defendant if he wishes the Court to have regard to s 6 of the Fines Act to the fullest extent that is available and I am not satisfied in this case that it was unreasonable and impracticable for the defendant to provide more information than what he has. No submissions were made by counsel for Mr Cork regarding his financial circumstances and I note that Mr Cork is currently employed.

31 On the question of parity, counsel for the prosecutor submitted:

The charges laid against the Defendants arise out of the same facts and circumstances. The Defendants are entitled to the benefit of the principles requiring the courts to ensure parity in sentencing as between “co-offenders”.

32 Both Mr Cork and Mr Coffey were directors of Horvat. The charges against them are in the same terms and arise out of the same facts. The obligations of both defendants to ensure safety were the same. Mr Coffey was the director more closely associated with the on site aspects of Horvat's work including the supervision of Mr Maxwell whilst Mr Cork's role was office based. However, there was no evidence to the effect that Mr Coffey had visited the site and would, therefore, have had a better appreciation of the risk to safety presented by the western wall.

33 I am, therefore, of the opinion that the objective seriousness of the offences is the same in each case and that equal weight should be given to the subjective factors except that Mr Coffey's financial circumstances warrant a reduction in the amount of any penalty that is determined.

34 I consider that an appropriate penalty in relation to Mr Cork is $10,150. In the case of Mr Coffey it is $8,150.

Orders

35 The Court makes the following orders:

Stephen Coffey - Matter No IRC 2711 of 2002

1) A verdict of guilty is entered.

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

3) The defendant is fined an amount of $8,150 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.

Martin Cork - Matter No IRC 2712 of 2002

1) A verdict of guilty is entered.

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

3) The defendant is fined an amount of $10,150 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.

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LAST UPDATED: 28/04/2004