Inspector Gjaltema v Randwick City Council. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000.Inspector Gjaltema v Randwick City Council. Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 [2005] NSWIRComm 114 (6 April 2005)

Last Updated: 14 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Gjaltema v Randwick City Council. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000.Inspector Gjaltema v Randwick City Council. Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 [2005] NSWIRComm 114

FILE NUMBER(S): IRC 4743 and 4744

HEARING DATE(S): 06/04/2005

EX TEMPORE DATE: 06/04/2005

PARTIES:

PROSECUTOR:

Inspector Gjaltema

DEFENDANTS:

Randwick City Council

JUDGMENT OF: Haylen J

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr J Rodney, Solicitor

SOLICITORS:

Carroll & O'Dea

DEFENDANTS:

Mr M Cahill of counsel

SOLICITORS:

Sparke Helmore

CASES CITED: Genner Constructions Pty Limited v The WorkCover Authority 2001 NSW IRC 267

The Crown in the Right of State of New South Wales (Department of Education and Training) v Inspector Keenan (2001) 105 IR 181 at 194

LEGISLATION CITED:

JUDGMENT:

- 11 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Haylen J

6 April 2005

Matter No IRC 4743 of 2004

04/4743 - INSPECTOR GJALTEMA v RANDWICK CITY COUNCIL

Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

Matter No IRC 4744 of 2004

INSPECTOR GJALTEMA v RANDWICK CITY COUNCIL

Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

EX TEMPORE JUDGMENT

[2005] NSWIRComm 114

The Court has before it this morning two prosecutions; one brought pursuant to s 8(1) of the Occupational Health and Safety Act 2000, and the second brought pursuant to s 8(2) of that Act. The defendant in each case is Randwick City Council and a plea of guilty has been entered to each charge. This morning I have heard evidence and submissions as to an appropriate penalty.

In relation to the evidence, there was an agreed statement of facts, to which I will return shortly; a factual inspection report by a WorkCover inspector; a number of photographs taken by the WorkCover Authority; some photographs taken by the defendant; and also a prior convictions record which demonstrated that the defendant had no prior convictions. That material constituted the evidentiary case for the prosecutor.

In relation to the defendant, a very extensive affidavit, with numerous annexures, was read, being the affidavit of Mr Frangoples, the director of City Services of the Council, and a person instructed by the defendant to speak on its behalf in relation to these proceedings. I will return to that document in due course.

The prosecutor, in each case in February of this year, filed in Court an amended application for order. Apart from the fact that one charge deals with the duties of the defendant in relation to employees and the other charge deals with the duties of the defendant in relation to non- employees, they are, in all material respects, identical.

The charge states, against that background, that on 13 September 2002 at Doncaster and Todman Avenues, Kensington, there was a failure, both in relation to ss (1) and (2) of s 8 of the Act, to ensure the health, safety and welfare of workers, firstly, of the defendant's employees and, in particular, Mr David Cheffins, and, secondly, in relation to those who were not the defendant's employers and, in particular, a Mr Wodecki in relation to the s 8(2) charge. The particulars were that the defendant failed to provide or maintain a system of work that was safe and without risk to health in relation to excavation activities at the site. The defendant failed to ensure that persons, such as David Cheffins did not enter the excavated trench to perform any work whilst the brick culvert remained in situ undemolished.

In relation to the s 8(2) charge, as I have already indicated, the particulars are almost identical but, with necessary amendment, were in these terms: The defendant failed to adequately provide or maintain a system of work that was safe and without risk to health in relation to excavation activity at the site. The defendant failed to ensure that persons, such as Paul Wodecki, did not enter the excavated trench to perform any work whilst the brick culvert remained in situ undemolished.

The Agreed Statement of Facts is fairly short and, omitting some of the parts that are already covered, it is agreed between the parties that Mr Cheffins was a multi-skilled employee of the defendant and that the defendant had contracted a company to supply excavators, small loaders and loaders to perform this work, and that Mr Wodecki had, in effect, been subcontracted to provide plant and operating services for the work.

On 13 September 2002 work on the project was proceeding at the corner of Doncaster and Todman Avenues, Kensington, and between approximately 7.30am and 8am Mr Wodecki and Mr Cheffins entered the excavated trench in which an old brick storm water culvert was situated. The excavation was approximately five (5) metres long, three (3) metres wide, four (4) metres deep and was supported by way of steel shoring and timber packing. Access to the trench was by way of an extension ladder.

Mr Wodecki and Mr Cheffins were performing what was described as lacing duties. That was a process whereby pieces of timber were used to close a gap between the steel shoring and, as the photos demonstrate, in particular, at places where services were encountered and where the steel shoring was unable to proceed further. Some pieces of timber lacing within the excavation had apparently moved and required fixing on this day; and, whilst that task was being undertaken, the brick culvert collapsed, striking Mr Wodecki and pinning him to the shoring. Mr Cheffins was in the trench at the time that the brick culvert collapsed but he was not struck by any part of the collapsing culvert. Mr Wodecki, as a result of this accident, suffered a dislocated hip and a broken pelvis. The Court is unaware of the length of his absence from work necessitated by this injury, but its simple description indicates a serious injury.

The Agreed Statements of facts continues with this paragraph:

The defendant failed to adequately provide or maintain the system of work that was safe and without risk to health in relation to excavation activities at the site. The defendant failed to ensure that persons such as Mr Wodecki did not enter the excavated trench to perform any work whilst the brick culvert remained in situ undemolished.

The defendant failed to direct persons such as Mr Wodecki not to enter an excavated trench while the brick culvert remained in situ undemolished.

The photographs and the factual inspection report have assisted in my understanding of the nature of the work that was being undertaken by the defendant on the day of this accident as well as the planning that went into that work. I have also been assisted by submissions from the bar table, which were not contested, about the nature of the work. It appears that this work had been progressing for nearly a year and the council's prior experience with this work, which was divided into ten metre sections as it proceeded, had not indicated to it that a problem of this nature, which was experienced on 13 September 2002, was a likely event.

Although the culvert was old, apparently over a hundred years old, it also appears that its replacement was not necessarily directed to its inherent instability but more to an updating of the service and making the service more effective.

Now, the first consideration of course is the objective seriousness of the offence. I should say in this regard the extensive affidavit of Mr Frangoples, which I do not attempt to summarise, has been considered, and I have been taken to parts of it by counsel for the parties. That very extensive document demonstrates the steps taken by the council to, firstly, consider the nature of the works to be performed, the engineering tasks involved, and a considerable amount of the material dealt with the occupational health and safety aspects of the work undertaken and considered by the defendant.

I think at this stage I should say that I accept the defendant's submission that both its history, and the material in relation to this work, demonstrate that it normally and in its day to day operations appears to pay close attention to occupational health and safety. I do not regard this particular accident as being the result of some clear act of negligence or of clear oversight, and I will return to foreseeability in a moment, but it appears to have been a well documented approach to occupational health and safety with a flaw, which unfortunately was a flaw that led to Mr Wodecki suffering a very serious injury.

There is some force in the submissions for the defendant that this event is something of an aberration, considering the long history of the council, its sizeable workforce, of some 600-odd people - of course not all of them involved in construction-type work, or inherently dangerous work - but enough is known of the undertakings of councils to know that there are aspects of its work and its obligations and duties that involve employees in performing work that is dangerous. Documentation indicates that the council takes its occupational health and safety obligations under the act seriously and attempts to address them.

Here, the explanation given on behalf of the council is that in nearly a year of performing this type of work, there was nothing about the stability of the culvert which would place the defendant on notice that there was a risk of this nature when the work was being performed of doing the lacing prior to the culvert being broken open in the demolition stage. Perhaps it should be stated at this point that, nevertheless, the obligation of employers is to be diligent in their approach to occupational health and safety, and the fact that in the past no accident occurred cannot be taken as an indicator that there is no risk with the work being performed. It is rarely, in the experience of the Court, that one finds a workplace accident that has not been preceded by at least some time of the work being performed without incident. That just underlines the strictness of the obligation and the duty of the employer and employer's like this defendant, to take all steps available to it to address the risks which are attended on the type of work that they are performing day to day. But that sets this particular risk in a context that has relevance for the sentencing task, and I take those matters into account.

Now, in relation to the nature of the offence, it is said by the prosecutor that this was work being conducted in a confined space involving an old brick culvert, and that the only means of protection for the work that was being performed on this day was reliance on the existing shoring around the edge of the trench.

It is submitted that in those circumstances the risk of injury was high, and some reliance in support of that submission is placed on the antiquity of the culvert. It is also submitted on behalf of the prosecutor, that the safe work system and procedures were generic and did not identify the peculiarities of this particular excavation, nor the need to be diligent in dealing with aged brick culverts. It was submitted that this was a fundamental deficiency in the defendant's system of work and, thus, it lacked the rigor of any formal assessment to ensure that persons had proper knowledge and information of the risks involved in dealing with aged brickwork located underground.

There are occasions, of course, where the seriousness of the breach is underlined by an injury and, as we all know, the occurrence of an injury is not required for an offence to be committed, and the whole aim of this legislation is to ensure that steps are taken to prevent workplace accidents. When they occur, however, as in this case, the nature of the injury is an indicator of the nature, or can be an indicator of the seriousness of the offence.

Mr Cheffins perhaps was fortunate not to be injured. Mr Wodecki suffered, as I have already indicated, a dislocated lip and a broken pelvis; a serious injury, I would think, by any assessment.

It is said by the prosecutor that it may be possible under this system that was in operation on the day in question to have more serious injuries, and even death. I am not able to say from the evidence as it stands whether the ultimate injury was a real risk here, but it is certainly clear that a very serious risk of injury and serious injury was a possibility. There is some force in those matters raised by the prosecutor.

The defendant points to a number of matters, including the fact that the evidence really does not indicate here that the culvert was known to be unstable.

The prosecutor rather attaches weight to the fact of the age of the culvert, and I would think that a factor that neither counsel have mentioned is the fact that once the defendant had engaged on the demolition course it had to factor into account that the effect of demolition, part by part, as demonstrated by the evidence, may raise the risk of the culvert being made less stable. The fact that that was not an immediately obvious risk, and I do accept that submission for the defendant, does not remove the defendant's obligation to assess that risk and to take steps to address the risk.

Emphasis is placed not only on the extensive system of occupational health and safety in operation prior to the accident, and I accept that description of the defendant's system, but the steps taken afterwards.

As usual, that is something of a two-edged sword. Although a number of things, including the revision of work methods, the number of appointments, including new approaches to occupational health and safety, which I don't detail but are set out very clearly in the defendant's affidavit evidence, it appears that this particular risk was fairly simply addressed by the work of lacing being delayed until the top of the culvert was broken open by an excavator. Having said that, I repeat that I accept the defendant's submission that there was not that degree of foreseeability of this type of accident that would promote this case into the worst case of a breach of s 8 ss(1) or (2).

The defendant, in submissions, concedes that neither the site specific safety plan, nor the site safe method work statements identified or addressed the risk of the top of the brick culvert collapsing, and that is undoubtedly a factor in the reasoning of the defendant in entering its pleas.

It is also conceded that the risk of the old culvert collapsing was foreseeable and should have been identified in advance, but again, with the rider that I have referred to, that here the council, as submitted by its legal representatives, undertook substantial engineering and project management investigations in advance of the work, and that, including the retention of external consultants, none of the investigations identified this particular risk. There is, as part of the balancing that must take place in the sentencing process, force in those submissions for the defendant, including its submission that these factors mitigate against the seriousness of the offence, and to an extent show that this was, as an offence, something of an aberration and, as described by the defendant, more perhaps aptly described as a departure from good practice; nevertheless, the offence is a serious offence.

In relation to deterrence, I am not persuaded that, nor do I think am I seriously asked to, ignore both general and specific deterrence as being an appropriate consideration in this case. In relation to specific deterrence, I am asked to consider that aspect in the light of the detailed work arrangements, occupational health and safety arrangements and the good history of the defendant; I am prepared to do so, although specific deterrence will play a role in setting an appropriate penalty. Its role is reduced, by reference to those matters.

In relation to subjective considerations, it was not contested that when the amended summons was filed in Court there was a response, by way of a plea, that allows these two pleas by the defendant to be accepted as early pleas. I agree with that description, and it is appropriate in those circumstances that the full benefit of an early plea be granted to the defendant, and in each case there will be a discount of 25 per cent on account of that matter.

In relation to other subjective matters, I think it is here available to consider the early plea and what is said in the affidavit evidence for the defendant that there is contrition shown by the defendant.

The defendant has a good record over a long period of time and considering the nature of the works it undertakes, some of it, as I have already stated, inherently dangerous, that record, considering the length of that history and the number of employees involved, can be properly considered as a good record, which regrettably has now been tarnished by these two breaches. Nevertheless, the record is a matter that is proper to be taken into account, and I do so.

I also take into account the steps taken after the accident: Firstly, the closing of the works while an investigation and a consideration of the accident and its causes were considered by the defendant, as well as the WorkCover Authority, and then the steps set out in detail in the affidavit evidence of the defendant in addressing not only this incident, but occupational health and safety matters generally. Again, I am prepared to take those matters into account as appropriate in discounting the penalty for subjective factors.

There was some little discussion about the element of co-operation with the authority. I am unable to determine the extent of cooperation, although I note the nature of the disagreement between the parties. I think, in the circumstances, I am entitled to form the view that there was cooperation, at least to a degree by the defendant, with the WorkCover Authority, throughout its investigations and that matter will be taken into account.

In relation to those matters, I would grant a further discount of 10 per cent, bringing the total discount available to the defendant to 35 per cent in each case. I then need to consider what is the appropriate penalty and then to look at issues of totality.

In my view, in each case, the appropriate initial penalty should be $82,500 reduced by 35 per cent, bringing a total of $53,625 as the

penalty imposed in each case. That penalty needs then to be considered in relation to the application of the principle of totality.

There is no question or no disagreement that this is a case where the Court is required to consider questions of cumulance, concurrence and totality.

There are two offences and the defendant must face the consequences of a breach of both aspects of the Act in relation to employees and non-employees. The important factor here in the application of the totality principle is the identical description of the offence in each case, apart from those to whom the duty was owed.

The Court has been counselled by Full Benches and by the application of longstanding principle, including principle endorsed by the High Court, that where there are common elements, the Court is to strive to ensure that the defendant is not punished more than once for the common elements of the offences. Some little time ago, the Full Bench in The Crown in the Right of the State of New South Wales (Department of Education and Training) v Inspector Keenan (2001) 105 IR 181 at 194 stated that in some cases it may be appropriate to impose a single penalty in relation to multiple offences in the application of the totality principle and after separate penalties had been assessed for each offence. That statement has more recently been followed by a Full Bench in Genner Constructions Pty Limited v The WorkCover Authority 2001 NSW IRC 267, but I think it has probably been reported since then. The general principle of totality I do apply. I think it perhaps not appropriate to impose a single penalty, however, in this particular case.

In relation to matter No IRC 4743 of 2004 I make the following orders:

1. The defendant is found guilty of the charge contained in the amended application for order for a breach of s 8(1) of the Occupational Health & Safety Act 2000 to which it has pleaded guilty.

2. The defendant is fined the sum of $44,000 with moiety of the penalty to be paid to the prosecutor.

3. The defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement, as ordered by the Court.

In relation to matter No IRC 4744 of 2004 the Court makes the following orders:

1. The defendant is found guilty of the breach of s 8(2) of the Occupational Health & Safety Act, as contained in the amended application for order to which it has pleaded guilty.

2. The defendant is fined the sum of $44,000 with moiety of the penalty to be paid to the prosecutor.

3. The defendant is to pay the costs of the prosecutor, as agreed, or in the absence of agreement, as ordered by the Court.

They are the orders in both matters.

LAST UPDATED: 13/04/2005