Inspector David Singh v Michael Angelo Petrozzi trading as Consulting Earth Scientists [2006] NSWIRComm 35 (13 July 2006)

Last Updated: 13 July 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector David Singh v Michael Angelo Petrozzi trading as Consulting Earth Scientists [2006] NSWIRComm 35

FILE NUMBER(S): IRC 7575

HEARING DATE(S): 15/12/2005

DECISION DATE: 10/02/2006

PARTIES:

PROSECUTOR:

Inspector David Singh

DEFENDANT:

Michael Angelo Petrozzi t/as Consulting Earth Scientists

JUDGMENT OF: Haylen J

LEGAL REPRESENTATIVES

PROSECUTOR:

Ms P McDonald of counsel

SOLICITORS:

Phillips Fox

DEFENDANT:

Mr M Cahill of counsel

SOLICITORS:

Sparke Helmore

CASES CITED:

LEGISLATION CITED:

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: HAYLEN J

10 February 2006

Matter No IRC 7575 of 2004

INSPECTOR DAVID SINGH v MICHAEL ANGELO PETROZZI t/as CONSULTING EARTH SCIENTISTS

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

JUDGMENT

[2006] NSWIRComm 35

1 Since 1995, Michael Angelo Petrozzi has carried on business trading as Consulting Earth Scientists, a business concerned with the conduct of environmental site assessments, site remediation, landfill design, environmental monitoring and environmental and geo-technical engineering. Initially, Mr Petrozzi practised by himself but ultimately came to employ a small number of people so that, by December 2002 and January 2003, there was a small number of people engaged in this undertaking. One such person was Mr Stephen McCormack who was employed at the end of July 2002 as a senior environmental engineer.

2 On 14 January 2003, Mr McCormack was working at a site in Bay Street, Botany. In the course of inspecting the roof area of a factory for the presence of asbestos, he received severe burns when he came into contact with live cabling used to power overhead cranes at the site.

3 Following an investigation of this incident by the WorkCover Authority, Inspector Singh commenced proceedings against Mr Petrozzi alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000. When the matter was first listed on return of the summons, Mr Petrozzi entered a plea of guilty although there continued to be discussions as to the scope of the charge and the Agreed Statement of Facts. At the sentencing hearing, Mr Petrozzi continued his plea of guilty to an Amended Application for Order. This judgment deals with the facts surrounding the incident on 14 January 2003 and the submissions made in relation to an appropriate penalty.

4 The Amended Application for Order alleged that on 14 January 2003 Mr Petrozzi, trading as Consulting Earth Scientists, contravened s 8(1) of the Occupational Health and Safety Act 2000 in that the defendant being an employer failed to ensure the health, safety and welfare at work of his employee, Mr McCormack. The particulars of the defendant's contravention were:

(a) a failure to undertake an adequate risk assessment of the safety hazards to employees conducting environmental audit work at the premises at Bay Street, Botany;

(b) a failure to ensure a safe system of work for the defendant's employee, Mr McCormack, while performing the task of inspecting light fittings on the underside of the roof area of the building at the premises.

It was alleged that, as a result of these failures, Mr McCormack was exposed to risk of serious injury.

5 The prosecutor tendered an inspector's factual report, a facsimile relating to the way in which the work was to be performed on the day and a variety of photographs depicting the area and surrounding environs where this incident occurred.

6 An Agreed Statement of Facts was tendered. This document succinctly sets out the circumstances surrounding the offence and it is appropriate that, omitting formal parts, it be reproduced to assist in a proper understanding of the nature of the breach. For relevant purposes that document stated as follows:

1 ...

2 At all material times, Mr Petrozzi:

2.1. Was engaged in the business of environmental consulting, business development and management, and was the principal of that business, trading as Consulting Earth Scientists (CES);

2.2. Contracted with Marsim Properties Pty Ltd (ACN 082 042 082) trading as Marsim Group Constructions (Marsim) to provide a hazardous materials audit and a soil and preliminary ground investigation at 34 Bay Street, Botany, New South Wales (premises);

2.3. Employed Stephen McCormack (Mr McCormack) as a Senior Environmental Engineer and Marija Jukic (Ms Jukic) as an Environmental Scientist to perform work at the premises in the course of Mr Petrozzi's business

3 At all material times ABB Australia Pty Limited (ACN 003 337 611):

3.1 Was engaged in the business of electrical and mechanical engineering at the premises, trading as 'ABB Jones & Rickard' (undertaking);

3.2. Controlled the premises that were used by persons, including Mr McCormack and Ms Jukic, as a place of work.

Background

4 As at 14 January 2003 (day of the incident), ABB Jones & Rickard was in the process of relocating its operations. In the weeks preceding the day of the incident, ABB Australia Pty Limited continued to occupy the premises.

5 On 13 December 2002, a site inspection of the premises was undertaken for the purpose of CES providing Marsim with a fee proposal to undertake a soil and groundwater investigation report.

6 The site inspection was attended by Mr Petrozzi and Ms Jukic on behalf of CES, Mr Duncan McAndrew, Senior Estimator, and Mr Murray Offord, on behalf of Marsim, Mr Lou Pigna, Workshop Manager (Mr Pigna), on behalf of ABB Australia Pty Limited and Mr Graham Nyland from Environ Australia Pty Limited, site auditor. The group were signed in and out of the premises at reception, and were accompanied by Mr Pigna for the duration of the inspection.

7 On 2 December 2002, CES provided a tender document to Marsim to undertake a hazardous materials audit and a soil and preliminary ground investigation at the premises.

8 By letter dated 6 January 2003, Marsim engaged CES 'on behalf of our client 34 Bay Street Pty Limited (ACN 100 640 784)' to undertake a soil and groundwater investigation and contaminated materials audit of the structures at the premises.

9 By facsimile dated 9 January 2003, Marsim wrote to ABB Jones & Rickard, marked to the attention of Mr Pigna, stating, inter alia:

As discussed today, please find following schedule of dates we require access to the site for the purposes of carrying out further site investigation works ... Items 2 & 3 [the tasks to be performed on the day of the incident] are essentially a non invasive site inspection by our Consultants who will need access to both the building and ABB personnel to answer questions about the use of the building etc ...

The environmental site assessment shall be carried out at all times under the strict supervision of our Consultants who shall be instructed to comply with the OH&S regulations of ABB. Additionally, they shall be instructed to comply with any site specific safety inductions and entry requirements that may be required.

10 On 13 January 2003, Mr Petrozzi received email correspondence from Marsim requesting that contractors be equipped with safety boots and safety glasses. The email also stated:

Additionally, all personnel are required to arrive at reception and sign in and out each and every day. Your contact for ABB Jones and Rickard is Lou Pigna.

11 By facsimile dated 13 January 2003, Marsim wrote to ABB Jones & Rickard, marked to the attention of Mr Pigna, stating:

Further to our telephone conversation on Friday 10 January 2003, we write to confirm that the following people from Consulting Earth Scientists (CES) shall be attending your offices tomorrow 14 January 2003 at 10am to commence the site investigation works in accordance with the program sent to yourselves on 9 January 2003:

· Marija Jukic

· Stephen McCormack

· Michael Petrozzi

CES have been instructed to arrive to site with all appropriate safety equipment and have been advised to sign in at reception with yourself.

12 On 14 January 2003, Mr McCormack and Ms Jukic attended the premises. Mr Petrozzi did not attend. Approximately one to two hours before the site attendance, Ms Jukic had telephoned Mr Pigna to confirm that they were visiting the site. Mr Pigna told her that he was occupied in the process of shifting the factories and that he was at another site. He told her to contact another employee, Mr Glen Ford, Electrical Coordinator (Mr Ford), if he, Mr Pigna, was not present on Ms Jukic's arrival at the premises.

13 Mr Pigna was not at the premises when Ms Jukic and Mr McCormack arrived, and Mr Ford was not expecting them.

14 Ms Jukic and Mr McCormack were not signed into the premises at reception.

15 Mr Ford gave Mr McCormack and Ms Jukic a tour of the premises lasting approximately five minutes.

16 Mr McCormack explained to Mr Ford that he would be inspecting the building and taking samples where necessary to confirm the presence or absence of hazardous material.

17 Mr McCormack sought access to the underside of the roof of the building for inspection. Mr Ford indicated that he could use an overhead crane. The crane indicated by Mr Ford had not been used for some time, however, there were two other overhead cranes in the area that were available for use.

18 Mr Ford told Mr McCormack that there was a handrail on the crane.

19 Mr Ford left Mr McCormack and Ms Jukic to carry out their work. Mr McCormack and Ms Jukic separated as they were performing different work.

20 Mr McCormack was undertaking a hazardous materials audit, looking for asbestos, polychlorinated biphenyl, synthetic mineral fibres, lead and nickel admium.

21 During his inspection, Mr McCormack climbed to the crane service platform of one of the overhead cranes at the premises, being the crane indicated by Mr Ford. Mr McCormack was confused about which stairway to the crane service platform he was meant to use, as there were sets of stairs leading to both the Bay 4 cranes (being non working but live cranes 5 and 6) and Bay 5 cranes.

22 Mr McCormack inspected the roof near his head and determined that there was no asbestos in the roof material.

23 Mr McCormack then moved to inspect fluorescent light fittings further away from the crane service platform.

24 Mr McCormack observed the handrail leading across the crane and decided it was safe to walk across the crane without falling.

25 Mr McCormack was not aware that the crane service platform at the top of the stairs was different and separate from the walkway of the main beam of each of the cranes. He accessed the walkway believing it was part of the platform area. Mr Ford did not explain the difference between the crane service platform and the working part of the crane.

26 Mr Ford did not refer to any chain guard on the crane service platform. Mr McCormack did not encounter any chain guard on the crane service platform.

27 McCormack walked along the crane, without taking notice of safety warning signage stating 'Danger Beware of Roof Bracing' and 'Danger Live Wires', and traversed the narrow side beam of the crane leading to an adjacent crane. McCormack did not notice warning signs about the danger of live wires as he was focused on avoiding a fall. Mr McCormack was exposed to a risk of a fall from heights of over nine metres.

28 At the point where the cranes abutted, there were two small upright posts securing cables. Mr McCormack climbed over the posts and stepped a short distance before coming into contact with three live crane collector wires with his lower right leg at the same time as making contact with a metal wall brace with his hand.

29 Mr McCormack felt a pulsating sensation in his right hand and realised that he had earthed himself by touching a steel wall. He tried to let go of the wall and could not release his hand for about 10 seconds. He then went into a spasm. He could see bright flashing lights in his head and felt like he was falling. He called for help. The pulsing stopped as the electricity was turned off. He slumped down and lay diagonally over two beams. He remained conscious and tried to remain positioned on the beams. He was rescued in a competent manner by ABB Australia Pty Limited staff.

Injuries

30 As a result of the incident, Mr McCormack sustained electrical burns to his right leg between the knee and his right ankle. He lost 90% of a muscle along the outside of his leg and 50% of the muscle along the shin. Mr McCormack wore a foot splint for approximately 4 months after the incident. He also underwent skin grafts for burn injuries over the entry and exit wounds. He has minor exit burn wounds all over his body which have healed. He initially returned to work on restricted duties. Mr McCormack returned to full unrestricted duties on 30 September 2003. He has permanent scarring on his leg and minor loss of mobility to his right foot.

Investigation

31 ...

Findings

32 ...

33 No formal instruction was given by CES or ABB Australia Pty Limited to not work at heights without fall protection. However, at the same time, Stephen McCormack was told by ABB Australia Pty Limited there was a hand rail on the crane and he believed that would be sufficient.

34 Mr McCormack was left to make his own risk assessment as to the safety of accessing the roof area using the overhead crane. He was aware of the height concerns with the crane but did not envisage the risk of coming into contact with live wires. Mr McCormack did not receive any training from CES on how to assess risks and determine whether or not to proceed based on that risk assessment. Mr McCormack provided the following information to the Prosecutor:

We have internal training and different tasks that we have to do as part of our job. At the time no specific work method statement or safety plan was produced for this job. I have been asked this a few times but I did my own risk assessment while I was in the building and I did not see people welding and people driving forklifts in the area. I was taking note of obvious dangers in my mind. I was thinking 'do not go near the guy welding and watch out for forklifts while walking around the factory'. But as for overhead cranes I did not immediately envisage the risk of electricity. At the time, in my own internal risk assessment, I was more worried about the height of the crane and the possibility of falling.

35 Mr McCormack had been instructed not to work near live wires, however, he was not aware that he was working near live wires.

36 There was no written assessment conducted by CES concerning the risk to safety for CES employees carrying out an environmental audit at the premises. Prior to attending sites, CES staff make contact while arranging work to organise site inductions and briefings. CES staff then work in accordance with the site instructions given. A list of PPE required for the site is also obtained.

37 CES did not have a documented procedure for the safety of its employees conducting site visits.

Prosecution

38 ...

As a result of the said failures, Stephen McCormack was exposed to risk of serious injury.

It was also agreed that Mr Petrozzi had no prior convictions under occupational health and safety legislation nor had he any other record.

7 For the defendant, two affidavits were read and the deponents were not required for cross-examination. Mr Petrozzi described how the business evolved while he was undertaking post-graduate studies at the University of Sydney. He gave details of awards, scholarships and other recognitions that he had received during his education.

8 Consulting Earth Scientists had been established in 1995 and for the first four years of its operation the business was carried out on a part-time basis while Mr Petrozzi was undertaking his doctoral studies at the University of Sydney. From 1999 until approximately six months prior to the incident, Mr Petrozzi was essentially self-employed as a sole trader, the business operated out of the front bedroom of his family home and, at this stage, no employees were engaged. In approximately February 2000, the business was expanded and he engaged his first employee. In approximately June 2002, he retained an organisation referred to as "The Brief Group" to review the system of work of the business and to provide advice regarding the development of an improved occupational health and safety system.

9 At the time of the accident involving Mr McCormack, the business employed two persons on a full-time basis. Since then, the business had moved to its own premises and, at the time of the hearing, engaged 10 full-time employees and a casual bookkeeper.

10 Mr McCormack was employed as a senior environmental engineer at the end of July 2002. Mr Petrozzi regarded him as an experienced and well-qualified environmental engineer who had conducted a diverse range of projects both in Australia and overseas prior to commencing with Consulting Earth Scientists. Mr McCormack had been engaged in field inspections since 1992.

11 Ms Jukic had commenced employment with Consulting Earth Scientists in April 2000. Prior to commencing with the business, she had completed an accredited occupational safety and health programme for elected safety and health representatives, a course accredited by the Workplace Western Australian Commission. The course was said to be of one week's duration covering topics such as legislation, consultation and communication hazard identification, risk assessment and control, accessing information, accident/incident investigation, working with committees and the development of safety systems. Ms Jukic also completed the Mining and Resource Contractor's Safety Training Association General Safety Induction in 1997, a course covering topics such as site safety procedures, applying personal safety measures, identifying and reporting incident/hazards, applying emergency procedures and maintaining personal wellbeing.

12 Mr Petrozzi stated that in and around January 2003, Consulting Earth Scientists had entered into a contract with a company supplying services to the Bay Street, Botany site. Consulting Earth Scientists was to undertake a hazardous material audit and preliminary ground inspection of the site. It was Mr Petrozzi's evidence that, after he was retained to provide these services at the ABB Jones Rickard site, he attended the site to undertake a preliminary inspection. He attended the site with Ms Jukic and met Mr Duncan McAndrew and Mr Graham Niland from Marsim and Mr Lou Pigna from ABB. Mr Pigna conducted a tour of the site and Mr Petrozzi discussed with him the type of work that would be undertaken on the site by Consulting Earth Scientists, including access to various parts of the premises, both inside and outside the factory building. Based on his discussions with Mr Pigna, Mr Petrozzi understood that Mr Pigna would meet his staff on their arrival at the site, that they would be inducted according to ABB's occupational health and safety system and that his staff would be accompanied by a member of ABB's staff whilst they were present on the site.

13 On 14 January 2003, Mr Petrozzi did not attend the site but Mr McCormack and Ms Jukic attended with Mr McCormack being commissioned to undertake a hazardous materials audit while Ms Jukic was commissioned to undertake stage 1 environmental assessments.

14 Mr Petrozzi stated that at all times there was co-operation with the WorkCover Authority during its investigation and that Consulting Earth Scientists and its representatives complied with all WorkCover queries and requests for interviews. On hearing of the accident, Mr Petrozzi immediately attended the hospital to see Mr McCormack. He said he was "devastated" by the accident and was "deeply distressed" that such an incident had occurred involving a member of his staff. He was very concerned about the injuries sustained by Mr McCormack. He remained in regular contact with Mr McCormack while he was in hospital and, after being released from hospital remained in contact with him by telephone monitoring his recovery and rehabilitation. When Mr McCormack was ready to return to work, Mr Petrozzi arranged for him to perform light duties with a gradual return to full duties under the guidance of his doctor. Mr Petrozzi said he deeply regretted the fact that the incident had occurred, that Mr McCormack had been injured and that there were breaches of the Occupational Health and Safety Act. He stated that he was committed to occupational health and safety and welfare of all his employees and others at workplaces where his business operated. He said he strived to ensure an accident free workplace, that he was committed to the process of continual safety improvement and said that this had been demonstrated by steps already taken by the business.

15 Mr Charlie Furr was the senior environmental scientist/operations managers for Consulting Earth Scientists, a position he had held since September 2003. In this role he was responsible for, amongst other things, supervision of field work. In addition the occupational health and safety co-ordinator reported to him as well as to Mr Petrozzi. Mr Furr chaired operations meetings, usually held weekly, at which occupational health and safety issues were discussed with staff. It was explained by counsel for Mr Petrozzi, without demur, that initially Mr Petrozzi had carried out the role of occupational health and safety co-ordinator but during 2003 that role had been carried out by other persons until the role was assumed by Mr Furr.

16 Mr Furr conceded that he was not employed by Consulting Earth Scientists at the time of the incident but he had familiarised himself with the circumstances surrounding the matter. Mr Furr described the present induction system for staff noting that it was carried out over the first two weeks of employment with a follow-up over the first 90 days of employment. Inductions were to be undertaken before staff commenced any work on site. During inductions, staff were provided with their own copy of the Consulting Earth Scientists' occupational health and safety manual. The occupational health and safety policies and procedures of the business were explained during induction including the operation of site safety rules which formed part of the occupational health and safety manual and provided specific standards for occupational health and safety. A training needs analysis was also completed during induction and emergency contact details obtained.

17 Field staff were issued with a personal protective equipment kit by the occupational health and safety co-ordinator. The kits contained safety equipment such as safety hats, high visibility vests, hearing protection, eye protection, Tyvek suits, respirators, dusk masks, a range of gloves and sunscreen. Staff were also provided with suitable workwear for working outdoors including safety boots, clothes and hats. The content and function of the kits were explained when issued to staff and, where appropriate, suppliers of components found in the kit (eg half-face respirators) provided training in their use. At the time of the incident and prior to the kits being available staff were issued with their own steel toe capped safety boots, eye protection, hard hats and safety net vests. Other safety equipment such as hearing protection, Tyvek suits and sunscreen was provided in each company vehicle.

18 Where a hazard inspection undertaken for a particular job indicated site specific risks that were not addressed by the equipment in the kits then management strategies were required to take steps to remove, minimise or avoid the risk: such strategies might require appropriate equipment to be obtained and training provided prior to the commencement of work.

19 Mr Furr explained the development of the occupational health and safety management of the business system adding that in July 2002, The Brief Group had been engaged to tailor an occupational health and management system to the individual and particular needs of Consulting Earth Scientists. The business had requested the creation of an occupational health and safety and injury management system and risk management workshops for employees. The Brief Group was asked to conduct site visits following the completion of the system manual and the risk management workshop to assist in the implementation of the system. There were to be four audits completed over the following three years to be conducted by accredited occupational health and safety auditors and reviewed by an external consulting group. These steps were designed not only to comply with occupational health and safety legislative requirements but to enable the business to receive a discount on workers compensation premiums. It was clarified during evidence that ultimately no application for a premium discount had been made by the business.

20 Mr Furr understood that at the time of the incident these occupational health and safety documents were in a draft form and were in the process of being adapted for implementation. There had been regular meetings with The Brief Group to discuss the development and adaptation of the system to ensure that it was suitable for the business. The system had now been finalised and implemented for approximately two years following "significant work" undertaken by the staff of Consulting Earth Scientists. Mr Furr spoke of the detail of the documented management system and the occupational health and safety system and safety policies. He explained the duties of the occupational health and safety co-ordinator and the training required for that position and how safety issues were discussed at all operations meetings that were generally held weekly. He also described the commitment of the business to occupational health and safety and gave details of a number of initiatives implemented since the incident, including the appointment of an occupational health and safety co-coordinator, formalising the occupational health and safety system and issuing personal protective equipment kits to all staff. He also noted that Mr McCormack's accident was the only lost time injury experienced by the business since it commenced operation. Internal building safety audits were performed by the occupational health and safety co-ordinator every six months and the project safety plans were reviewed and signed off by the operations manager or the principal before site work was commenced.

21 Mr Furr described Mr McCormack's position within the business, his qualifications and experience and the circumstances in which he came to be at the ABB site in January 2003. It was Mr Furr's understanding that, on arrival at the site, Mr McCormack and Ms Jukic were taken on a guided tour of the factory but they were then left to perform their work and were unaccompanied while performing that work on site. It was also his understanding that it was not explained to Mr McCormack that the crane service platform at the top of the access stairs was different and separate from the walkway on the main beam of each crane. Mr McCormack apparently used the walkway believing it was part of the platform area. It was understood that Mr McCormack conducted his own risk assessment having been left to his own devices by employees of ABB. He was not given any reason to consider that there might be a risk of electrocution when crossing the walkway on the crane beam. He had not been provided with any warning or information concerning the hazards of electrocution associated with the roof area and no conditions were placed on his access to the area.

22 The business had paid the gap between Mr McCormack's salary and the amount paid to him by way of workers compensation and he was permitted to continue to accrue leave with paid superannuation during his absence from work. The business strongly supported Mr McCormack's return to work which was initially on restricted duties to be performed four hours per day for three days a week from the end of April 2003. By mid-June 2003, Mr McCormack was able to return to full-time work with duties restricted to exclude lifting in excess of 20Kgs and walking on uneven surfaces. By the end of September 2003, Mr McCormack was declared fit for pre-injury duties, remained in employment with the business and continued to be so employed. It was Mr Furr's view that Mr McCormack had made a good recovery and, while he had scarring to his legs and some loss of function, he appeared to be able to fully participate in sports and was able to undertake an active social life.

23 In addresses, the prosecutor confirmed that the maximum penalty that could be imposed in this case was $55,000. In relation to the objective seriousness of the offence it was submitted that this incident was entirely foreseeable by the defendant. The risks that were faced were the possibility of a fall from a height of 9 metres and injury by electric shock exposing an employee again to a fall from a height of 9 metres. The defendant had previously been on site and had inspected the work that was to be performed over the period of January and February 2003. The role to be undertaken by Mr McCormack in inspecting the building was clearly hazardous, both as to the material being considered and the need for access to the roof area, and this made the failure to provide harness equipment all the more serious. There was no risk assessment conducted by the defendant and, because there was a possibility of fatal injuries from the risks faced at the site, this was to be assessed as a very serious breach of the Act.

24 There were simple remedial steps available to the defendant to address the risks: there could have been a risk assessment; the power to the overhead crane could have been isolated while Mr McCormick was working in that area and fall protection equipment could have been provided.

25 There was a need for both general and specific deterrence in reaching an appropriate level of penalty. In particular, the defendant was now the employer of 10 persons, thus resulting in a clear role for specific deterrence. As to subjective factors, the prosecutor agreed that there was an early plea and co-operation with the WorkCover Authority.

26 For the defendant, it was submitted that the incident had to be considered in the context of a very small business just starting but, nevertheless, already engaging experts to craft an occupational health and safety policy to its very specific needs, having regard to the nature of the work in which the business was involved. Unfortunately, that task had not been completed when the incident occurred involving Mr McCormack but the defendant had taken steps in relation to occupational health and safety. There had been an inspection of the site where the work was to be performed: an arrangement was made for ABB to induct the defendant's employees and for them to be accompanied during the work by an ABB staff member. Neither of those things occurred and the work was therefore undertaken without the assistance that had been arranged by the defendant. It was immediately conceded that, once induction training had not been supplied by ABB and when the defendant's employees were left to their own devices without being accompanied by an ABB staff member, it was not appropriate for Mr McCormack and Ms Jukic to undertake the work - in effect, they should have "downed tools".

27 It was also to be borne in mind that both Mr McCormack and Ms Jukic were highly trained specialists with significant training and practical experience in the conduct of relevant field work. These employees were not simply left to their own devices by the defendant, rather, they found themselves in a position where none of the support arranged from ABB was provided to them. Mr McCormack, after a five minute tour of the factory, was simply told that the cranes were not working but he was not warned of the risk of electrocution when working in that area of the factory. The arrangements made by the defendant had totally failed because Mr Pigna was not present and it appeared that when Mr McCormack and Ms Jukic arrived they were not expected. If ABB had complied with the arrangement made by the defendant there was little likelihood that the two employees would have been exposed to these risks and little likelihood that Mr McCormack would have been injured at all.

28 These matters were placed before the Court as mitigating the seriousness of the offence since the defendant otherwise acknowledged that it was his primary obligation not only to satisfy himself that his employees were to be inducted, informed and supervised by an appropriately qualified ABB employee but also that the defendant had to have some system in place to ensure that those steps were taken or that, alternatively, safety measures were put into operation before his staff commenced work at the site.

29 While the defendant accepted that general deterrence was a proper consideration in the determination of the penalty to be imposed, it was submitted that the circumstances of the defendant were such that there was little, if any, role for specific deterrence. The defendant was a first offender who had early in the life of the business taken steps to address occupational health and safety in recognition of his responsibilities in that regard and sought to develop a "customised" occupational health and safety system to meet the highly specialised needs of this business. The defendant had also taken steps since the incident to ensure that his occupational health and safety policy and systems were adequate to meet the needs of his business. It was further submitted that the Court could be well satisfied that the defendant was unlikely to re-offend.

30 In relation to subjective factors, it was submitted that the defendant was entitled to the benefit of his early plea and that the early plea reflected such contrition that it was proper to attract a greater degree of leniency. It was apparent from the evidence that the incident had a significant personal impact on the defendant and that he went to significant lengths to provide both direct personal support to Mr McCormack as well as substantial financial support while Mr McCormack was absent from work. The defendant also provided significant support to Mr McCormack during his rehabilitation to full-time employment. In addition, there had been full co-operation with the WorkCover Authority.

31 A further defence submission caused the Court some concern by seeking to have this defendant considered less culpable for the accident involving Mr McCormack and concluding that the greater culpability lay with ABB. ABB has been prosecuted under the Act in relation to this accident and has challenged the way in which the charge has been framed. Those proceedings were before a Full Bench at the time of the hearing of these submissions on penalty and have not yet been resolved. The indications were that ABB would be defending any charge that survived its challenge in the proceedings before the Full Bench. The Court expressed its concern that in the present proceedings it was being asked to make a determination of the culpability of ABB when that party was not before the Court and where it was, itself, the subject of defended proceedings. The Court has since been informed by the prosecutor that, as presently advised, the proceedings against ABB will be maintained on a factual basis not inconsistent with the material contained in the Agreed Statement of Facts in the present matter. The defendant does not wish to await the ultimate judgment in the proceedings concerning ABB and that stance is understandable. ABB has not appeared in these proceedings nor was there cause to do so; normally this situation would be accommodated by a joint hearing but circumstances have arisen preventing this usual course. Notwithstanding the somewhat tentative advice of the prosecutor, I find I am unable to properly determine the culpability of ABB in this accident without all the evidence of its involvement. I therefore proceed to deal with the issue of sentence against the evidence otherwise brought forward by the prosecutor and the defendant.

DELIBERATION

32 I accept the prosecutor's description of this offence as constituting a significant and serious breach of the Act. While it is true that the defendant had skilled employees and persons experienced in field work at this early stage of the development of the business, the evidence does not support a finding that Ms Jukic had utilised her qualifications in occupational health and safety to take control of the operation once it became apparent that induction was not to be provided by ABB at the site. There is no evidence that Ms Jukic was the nominated occupational health and safety representative of the defendant although apparently qualified in this regard. Importantly, as conceded by the defendant, there was no occupational health and safety fallback position in the absence of induction being provided by ABB.

33 The defendant's two employees did not appear to discuss what should be done in the absence of induction by ABB and there were no policy guidelines imposed by the defendant to assist them. The two employees went their separate ways to perform their different tasks, apparently carrying out an ad hoc risk assessment while they performed the work, rather than before the work was performed. There was nothing in the defendant's system that required them to do otherwise.

34 It was obvious that Mr McCormack would be required to perform work at heights. When he came to perform work in the roof area of the factory at the site he was working at a height of approximately 9 metres and did so without fall protection or a safety harness. Work at heights was part of the scheduled work to be performed and it was foreseeable that working at such a height without safety equipment posed a risk. In relation to the risk of electrocution, Mr McCormack had been informed that the overhead cranes were not operating but in circumstances where, at the other end of the factory, overhead cranes were in operation. It was clear that there had to be a source of power for the operation of any of the overhead cranes, yet it appears that no enquiry or request was made to have the power isolated in the area in which Mr McCormack intended to work. There was nothing in the defendant's system of occupational health and safety that required Mr McCormack to take those steps in the absence of ABB failing to properly induct the defendant's employees. It is also apparent that the defendant made some assumptions as to the nature and content of the induction to be provided by ABB based upon the size and standing of that company rather than by the defendant personally considering the form and nature of the induction to be provided.

35 These conclusions, nevertheless, need to be considered in the overall context of the defendant's operation. The defendant was in the early stages of operating his business with employees and had taken proper steps to have a relevant system of occupational health and safety drafted by experienced consultants. That task was apparently well advanced but not yet finalised when the accident occurred involving Mr McCormack. Perhaps, in some recognition of lacking a finalised system, the defendant took steps to have ABB induct his employees in their safety system and to also accompany them during their work. This is not a case where the defendant had totally disregarded the need for a safe system of work or had ignored obvious risks confronting his employees in the performance of his work. These matters need to be put in balance in setting an appropriate penalty.

36 The defendant accepted the role of general deterrence in setting the penalty but suggested that there was little need for specific deterrence. The defendant's business has now grown to the point where it employs 10 people. While the defendant is to be commended for the steps taken following the incident involving Mr McCormack and has adopted a detailed occupational health and safety policy, there is a place nevertheless for specific deterrence in the setting of an appropriate penalty, although I accept that its role is much diminished in light of the factors drawn to attention by the defendant.

37 In relation to subjective factors, I accept that the plea of guilty was entered at the earliest possible time and that the defendant is entitled to a discount of 25 per cent in recognition of the utilitarian value of the plea. I also accept the defendant's submission that he entered this plea to an Amended Application for Order. The evidence also establishes the defendant's contrition, not only by the early plea but also by the steps taken in relation to the welfare and rehabilitation of Mr McCormack and the attention apparently promptly paid in ensuring that a detailed system of safety would be adopted that addressed not only the risk exposed by this incident but would address the types of risks that might be expected in conducting a business of this nature. In addition, the defendant, although a sole practitioner for a number of years, has been conducting this business for nearly 10 years and has an unblemished record apart from the accident involving Mr McCormack. Having regard to the types of risks that are likely to be faced in the conduct of his business, it may be stated that the defendant has a good industrial record. These aspects serve to further mitigate the penalty that should be finally imposed.

ORDERS

1. The defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 7575 of 2004, a breach to which the defendant has pleaded guilty.

2. The defendant is fined the sum of $9,000 with half that sum to be paid to the prosecutor by way of moiety.

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

LAST UPDATED: 13/07/2006