Workcover Authority of New South Wales (Inspector Reynolds) v Rma Demolitions Pty Limited and Visionstream Pty Limited [2007] NSWIRComm 15 (8 February 2007)

Last Updated: 20 June 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of New South Wales (Inspector Reynolds) v RMA Demolitions Pty Limited and Visionstream Pty Limited [2007] NSWIRComm 15



FILE NUMBER(S): IRC 6207 & 6208

HEARING DATE(S): 7/8/2006; 15/11/2006

DATE OF JUDGMENT: 8 February 2007
PARTIES:
PROSECUTOR:
WorkCover Authority of New South Wales (Inspector Reynolds)

DEFENDANTS:
RMA Demolitions Pty Limited
Visionstream Pty Limited

CORAM: Staunton J


CATCHWORDS: Occupational health and safety - pleas of guilty - co-defendants but matters dealt with separately - general principles - factual matters in dispute relating to plea entered by Visionstream - foreseeability - objective seriousness of the offence - relative culpability of defendants equal - general and specific deterrence - no prior convictions - reduction in utilitarian value of plea in relation to Visionstream - subjective features taken into consideration - penalty imposed - orders as to penalty, moiety and costs.

LEGAL REPRESENTATIVES

PROSECUTOR:
Ms K Nomchong of counsel (on 7/8/2006)
Mr D Chin of counsel (on 15/11/2006)
SOLICITORS:
Moray & Agnew

RMA DEMOLITIONS PTY LIMITED:
Mr A Britt of counsel
SOLICITORS:
Dibbs Abbott Stillman

VISIONSTREAM PTY LIMITED:
Mr J Phillips SC
SOLICITORS:
Sparke Helmore



CASES CITED: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Markarian v The Queen [2005] HCA 25: 18 May 2005
R v Gallagher (1991) 23 NSWLR 220
R v Thompson; R v Houlton (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131
Thorneloe v Filipowski (2001) 52 NSWLR 60

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000



JUDGMENT:

- 9 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Staunton J

DATE: 8/2/2007

Matter No IRC 6207of 2005
WorkCover Authority of New South Wales (Inspector Reynolds) v RMA Demolitions Pty Limited
Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

Matter No IRC 6208 of 2005
WorkCover Authority of New South Wales (Inspector Reynolds) v Visionstream Pty Limited
Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT
[2007] NSWIRComm 15

1 The defendants in these matters have both pleaded guilty to an offence under the Occupational Health and Safety Act 2000 (the Act).

2 While both matters were listed to be dealt with together as co-defendants, the evidence and submissions with respect to both defendants was received and heard separately.

3 In relation to the defendant Visionstream Pty Limited (Visionstream) there were factual differences between it and the prosecutor involving employees of RMA Demolitions Pty Limited (RMA) that were viewed by Visionstream as being relevant to the issue of mitigation and the relative culpability as between it and RMA. I will deal with those issues in due course.

RMA

4 The first defendant, RMA Demolitions Pty Ltd (RMA), is charged under s 8(1) of the Act where, it is said the defendant:

Did fail to ensure the health, safety and welfare at work of its employees including Sok Kim Ngauv (‘the injured worker’).

5 The particulars of the charge state:

(i) The defendant failed to ensure that the systems of work and the working environment of its employees were safe and without risk to health in that the work was performed at the site by the injured worker while the defendant had no appropriate supervisor present to ensure that work was carried out in accordance with the terms of the defendant's contract for performance of the work at the site.

(ii) The defendant failed to provide adequate instruction in relation to the work being conducted by its employees at the site such as was necessary to ensure the work was performed precisely consistent with the terms of its undertaking to ensure that the employees of the defendant were not exposed to a risk to their health, safety or welfare.

(iii) The defendant had contracted with Visionstream Pty Limited (ACN 062 604 193) ('Visionstream') to conduct works at the site in accordance with the terms of its quote no Q2196 dated 16 October 2003 which included the following scope of works:

'Provide labour and materials and equipment to remove buried asbestos cement pipes from Hoxton Park Road site'.

(iv) On 12 February 2004 a trench at the site about 1.7 metres in depth and some hundred metres approximately in length had been excavated by persons engaged by Visionstream in order to expose the asbestos pipes prior to their removal from the excavation trench.

(v) At about 10:00am on 12 February 2004 the injured worker accessed the excavation trench at the site to carry out the task of removing the asbestos pipes from the bottom of the trench and whilst he was so doing a section of the trench collapsed inwards and pinned him against the inside wall of the trench.

(vi) As a consequence of the incident the injured worker sustained a fractured pelvis and chest injuries and was unable to resume his normal work for a period of in excess of seven days following the incident.

Visionstream

6 The second defendant in these matters, Visionstream Pty Ltd (Visionstream), was charged with an offence under s 8(2) of the Act, where it is said the defendant:

Failed to ensure that people other than its employees and including Sok Kim Ngauv, (the injured worker), were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, namely, the site.

7 The particulars of that charge state:

(i) The defendant had undertaken works at the site pursuant to a contract with the principal contractor Abigroup Leighton Joint Venture, which undertaking involved the disconnecting and relocating of the existing underground services which consisted of Telstra network cables. The Telstra cables were housed in conduits/pipes made from asbestos.

(ii) The defendant pursuant to its undertaking in respect of the works at the site had subcontracted part of such works and had accepted a quote dated 16 October 2003 being quote no. Q2196 from Ross Mitchell & Associates Pty Limited (a trade name conducted by RMA Demolitions Pty Limited (ACN 092 116 704) (RMA) to carry out the following scope of works:

'Provide labour, materials and equipment to remove buried asbestos cement pipes from Hoxton Park Road site'.

(iii) At approximately 10.00 am on 12 February 2004 the injured worker, an employee of RMA Demolitions Pty Limited (ACN 092 116 704), while in the trench, a top section of the trench collapsed inwards and pinned him against the inside wall of the trench.

(iv) As a consequence of the incident, the injured worker sustained injuries and was unable to resume his normal work for a period of in excess of seven days following the incident.

(v) At all material times the principal contractor, ALJV, Site Safety Rules in respect of the project at the site required all excavations greater than 1.5 metres in depth to be properly shored.

(vi) The incident involving injury to the injured worker resulted from the following failures of the defendant:

(a) It failed to ensure appropriate measures were in place to control the risks in relation to the stability of the trench at all times by having in place proper shoring and support consistent with the requirements of the Site Safety Rules in place.

(b) It failed to properly instruct persons conducting the work of the appropriate timing for removal of props and shoring prior to backfilling the trench.

8 The prosecutor has submitted a statement of facts. Relevantly, those facts are agreed as follows:

Statement of facts: RMA

[1] At all material times the prosecutor was an inspector duly appointed pursuant to clause 11 schedule 3 of the Occupational Health & Safety Act, 2000 under division 1 of Pt 5, and is empowered by s106 of the said Act to institute proceedings in the within matter.

[2] At all material times the defendant, RMA Demolitions Pty Ltd [ACN 092 117 704 ] was a company duly incorporated with its registered office at E G Bolos, Level 2, Suite 128 Burwood Road, Burwood in the State of New South Wales.

[3] At all material times the defendant was an employer.

[4] At all material times the defendant employed Sok Kim Ngauv (‘the worker’).

[5] The defendant had contracted with Visionstream Pty Ltd (ACN 062 604 193) ('Visionstream') to conduct works involving the removal of asbestos cement pipes from a construction site known as the Abigroup Leighton Joint Venture ('ALJV') on the M7 Westlink Project which was located at 33/700 Sunnyholt Road, Kings Park in the State of New South Wales (‘the site’).

[6] The contract between the defendant and Visionstream was based upon a quote from the defendant being quote number Q2196 bearing the date 16 October 2003. Quote number Q2196 detailed the scope of works to be as follows:

‘Provide labour, materials and equipment to remove buried asbestos cement pipes from Hoxton Park Road site.’

[7] On 20 October 2003 Visionstream directed a fax to the defendant confirming acceptance of the defendant’s quote number Q02196.

[8] In February 2004, Visionstream verbally contracted the defendant to remove the asbestos cement pipes from the site, on the same terms as earlier work performed by the defendant at Hoxton Park Road.

[9] At all material times Visionstream was under a contract to the principal contractor at the site, ALJV, to carry out the disconnection and relocation of existing underground services including Telstra network cables.

[10] At all material times the defendant was licensed by WorkCover NSW to conduct class one friable and bonded asbestos removal.

[11] On or prior to 12 February 2004, and prior to any asbestos cement pipes being removed by the defendant, Visionstream had mechanically excavated a trench at the site to expose the asbestos cement pipes.

[12] Visionstream had a documented Safe Work Method Statement dated 13 January 2004 in respect of the works, which identified among other things the risks associated with the trenching work, as indicated in the following extract:

TASK OR CONDITION	INITIAL RISK OR CONSEQUENCE	RATING	AGREED CONTROLS
Commence trenching and manhole excavation	Access and stability of surrounding area	M	Excavations deeper than 1.5 metres to be battered or benched. Ticketed operators

[13] Visionstream did not supply the Safe Work Method Statement to the defendant.

[14] At all material times on and prior to 12 February 2004 the Site Safety Rules issued by the ALJV required all excavations greater than 1.5 metres to be appropriately shored.

[15] Neither Visionstream nor ALJV supplied the Site Safety Rules to the defendant.

[16] The defendant prepared its own safe work method statement, which stated:

“Cleanup – Asbestos fragments are lying on the ground. These fragments are to be picked up and placed in bags immediately...”

[17] On 12 February 2004 the worker was engaged in carrying out work involving the removal of the asbestos cement conduits from the excavation trench whilst standing inside the trench. While carrying out this work the side of the trench collapsed inwards on to him as a consequence of which he sustained injuries including a fractured pelvis and chest injuries.

[18] As a consequence of the injuries suffered by the worker he was unable to resume his normal work for a period in excess of seven days following the incident.

[19] Prior to the incident the worker had been given instructions in relation to the work he was to perform at the site by his supervisor, Brett Riches. This instruction was given at around 7.30 a.m. The supervisor had then left the site, leaving the worker and another employee, Kevin Toun, to carry out the work pursuant to the defendant’s contract with Visionstream.

[20] Prior to the collapse of the trench, the worker was instructed by a Visionstream employee to enter the trench to remove the asbestos cement pipes. The worker obeyed this instruction.

[21] Whilst the worker was in the trench pulling out the asbestos pipes from it, no one from the defendant nor Visionstream requested the worker to get out of the trench and stop pulling out the asbestos pipes by hand.

[22] Inspector Reynolds of WorkCover NSW conducted an inspection of the site commencing at approximately 12.40pm on 12 February 2004 and observed the following:

(a) An open excavation trench approximately 1.7 metres in depth, two metres wide and approximately 40 metres in length running parallel with Sunnyholt Road, Kings Park.

(b) Located at the scene of the incident a section of the excavation trench had collapsed on the western side of the trench. The length of the collapse was approximately six metres.

(c) Located adjacent to the right of the excavation trench an orange plastic safety mesh approximately one metre in height was connected to star pegs that contained yellow plastic caps, running parallel with the excavation trench.

(d) Adjacent to the left of the scene of the incident there were two orange coloured props positioned across the excavation approximately 500mm down from top. The base plates of the steel props were positioned against each vertical wall of the excavation.

(e) Adjacent to the right of the collapsed excavation wall approximately 10 steel props went across the bottom of the excavation and leaning at an angle of approximately 35°. The measurement between each prop was approximately one to two metres.

(f) A bonded asbestos pipeline at the bottom of the excavation trench was running parallel with the longitudinal access of the excavation.

[23] Prior to the accident, the system of work used by Visionstream for supporting the trench had been to use form ply and acrow props to support the walls only when and where the asbestos conduit was being removed. It was being removed in lengths of about 3 metres. Immediately prior to each section of pipe being finally removed, the ply and acrow props were also removed. The pipe was then removed. The excavation then was backfilled, with the ply and acrow props being moved along to the next 3 metre section, immediately before the removal of the next 3 metre section of pipe.

[24] At no time prior to the incident was the excavation battered or benched by Visionstream as required by the Visionstream Safe Work Method Statement, for excavation greater than 1.5 metres depth.

[25] Prior to the accident, there had been a partial collapse of the trench in another section of it about 25 metres away from where the trench collapsed onto the worker.

[26] As a consequence it is alleged that RMA Demolitions, being an employer, on 12 February 2004 failed to ensure the health, safety and welfare at work of its employees including Sok Kim Ngauv.

The particulars of the defendant’s failure are as follows:

(i) The defendant failed to ensure that the systems of work and the working environment of its employees were safe and without risk to health in that the work was performed at the site by the injured worker while the defendant had no appropriate supervisor present to ensure that work was carried out in accordance with the terms of the defendant's contract for performance of the work at the site.

(ii) The defendant failed to provide adequate instruction in relation to the work being conducted by its employees at the site such as was necessary to ensure the work was performed precisely consistently with the terms of its undertaking to ensure that the employees of the defendant were not exposed to a risk to their health, safety or welfare.

Statement of facts: Visionstream

9 In relation to Visionstream, I have already referred to factual differences between the prosecutor and Visionstream in these proceedings. Those differences are in paragraphs [21] and [22] of the facts now following and for ease of identification, have been emphasised.

10 With the exception of [21] and [22], the following facts are agreed to by the defendant:

[1] At all material times the prosecutor was an inspector duly appointed pursuant to clause 11 schedule 3 of the Occupational Health & Safety Act, 2000 under division 1 of Pt 5, and is empowered under s106(1)(c) of the said Act to institute proceedings in the within matter.

[2] At all material times the defendant, Visionstream Pty Ltd (ACN 062 604 193) (‘the defendant’) a company duly incorporated and having its registered office at 472 Pacific Highway St Leonards in the State of New South Wales.

[3] At all material times the defendant was an employer.

[4] The defendant had contracted with RMA Demolitions Pty Ltd (ACN 092 116 704) (“RMA”) to conduct works involving the removal of asbestos cement pipes from a construction site on the M7 Westlink Project which was located at 33/700 Sunnyholt Road, Kings Park in the State of New South Wales (‘the site’).

[5] At all material times the defendant was under a contract to the principal contractor, ALJV, at the site to carry out the disconnection and relocation of existing underground services including Telstra network cables.

[6] At all material times the defendant had contracted with RMA to remove the asbestos cement pipes from the site.

[7] At all material times RMA was licensed by WorkCover NSW to conduct class one friable and bonded asbestos removal.

[8] Prior to 12 February 2004 the defendant had mechanically excavated a trench at the site to expose the asbestos cement pipes.

[9] The defendant had a documented Safe Work Method Statement dated 13 January 2004 in respect of the works, which identified among other things the risks associated with the trenching work, as indicated in the following extract:

TASK OR CONDITION	INITIAL RISK OR CONSEQUENCE	RATING	AGREED CONTROLS
Commence trenching and manhole excavation	Access and stability of surrounding area	M	Excavations deeper than 1.5 metres to be battered or benched. Ticketed operators

[10] The defendant did not supply the Safe Work Method Statement to RMA.

[11] The defendant had a Health, Safety and Environment Risk Assessment which its employees completed on the morning prior to the incident. A box titled trenching and shoring was ticked. This identified a risk with respect to trenching and shoring was ‘present on the job.’ Next to the ticked box was a reference to a guidance sheet which gave specific guidance notes on trenching and shoring.

[12] At all material times on and prior to 12 February 2004 the Site Safety Rules issued by the ALJV required all excavations at the site greater than 1.5 metres to be appropriately shored. The Site Safety Rules also required that all trenches were to be assessed to determine the appropriate system of edge protection i.e.:

(a) Battering

(b) Benching

(c) Shoring

[13] The defendant did not supply the Site Safety Rules to RMA.

[14] However, Safety Coordinators from ALJV conducted daily inspections to ensure that contractors remained compliant with the requirements of the ALJV site safety management plans and rules.
[15] Pursuant to the defendant’s contract with RMA, RMA had supplied a number of its employees to work at the site, including Sok Kim Ngauv (“the worker”).

[16] Inspector Reynolds of WorkCover conducted an inspection of the site commencing at approximately 12.40pm on 12 February 2004. The inspector observed the following:

(a) An open excavation trench.

(b) Located at the scene of the incident a portion of the top section of the excavation trench had collapsed on the western side of the trench. The length of the collapse was approximately six metres.

(c) Located adjacent to the right of the excavation trench an orange plastic safety mesh approximately one metre in height was connected to star pegs that contained yellow plastic caps, running parallel with the excavation trench.

(d) Adjacent to the left of the scene of the incident there were two orange coloured props positioned across the excavation approximately 500mm down from the top of the excavation. The base plates of the steel props were positioned against each vertical wall of the excavation.

(e) Adjacent to the right of the collapsed excavation wall approximately 10 steel props were fixed across the bottom of the excavation and leaning at an angle of approximately 35O. The measurement between each prop was approximately one to two metres.

(f) A bonded asbestos pipeline at the bottom of the excavation trench was running parallel with the longitudinal access of the excavation.

[17] Prior to the removal of the asbestos pipes by RMA on 12 February 2006, support was put in place by the defendant’s employees. This support consisted of:

(a) Acrow props which were positioned every 3 metres supporting the gas pressure main.

(b) Form ply shoring placed in between the existing acrow props one section (approximately 3 metres) at a time.

[18] As one section of support was put in place, the defendant’s employees would exit the trench and RMA workers would enter the trench in that section to remove the asbestos pipes from the supported section only. Following this, the RMA workers would exit and wait outside the trench until the defendant’s had removed the ply and acrow props, backfilled that section, and re-positioned the support in the next 3 metre section.

[19] There was a tool box talk about this procedure where both the defendant’s and RMA workers, including Mr Ngauv, were present prior to the commencement of work.

[20] The procedure for removing the asbestos from the trench was carried out over a number of sections on the morning of the incident.

[21] The prosecutor contends with which the defendant disagrees, at no time prior to the incident was the excavation battered or benched by the defendant as required by the defendant’s Safe Work Method Statement, for excavation greater than 1.5 metres depth.

[22] The prosecutor contends with which the defendant disagrees that prior to the accident, there had been a partial collapse of the trench in another section of it about 25 metres away from where the trench collapsed onto the worker.

[23] At approximately 10:00 am, the worker entered the trench at a time when the additional shoring was not in place and a number of the acrow props supports had been removed. He commenced removing the asbestos pipes by hand. While in the trench at this time, the top of one side of the trench partially collapsed inwards, resulting in injuries to the worker, including a fractured pelvis and chest injuries.

[24] Whilst the worker was in the trench pulling out the asbestos pipes from it, no one from either RMA or the defendant told the worker to get out of the trench and stop pulling out the asbestos pipes by hand.

[25] As a consequence of the injuries suffered by the worker he was unable to resume his normal work for a period in excess of seven days following the incident.

[26] As a consequence it is alleged that Visionstream, being an employer, on 12 February 2004 failed to ensure the health, safety and welfare at work of persons not in it's employ including Sok Kim Ngauv.

The particulars of the defendant’s failure are as follows:

(a) the defendant failed to ensure appropriate measures were in place to control the risks in relation to the stability of the trench at all times by having in place proper shoring and support consistent with the requirements of the Site Safety Rules in place.

(b) the defendant failed to properly instruct persons conducting the work of the appropriate timing for the removal of props and shoring prior to backfilling the trench.

11 In addition to the statement of facts tendered in relation to each defendant, the prosecutor also tendered a bundle of documents in relation to both defendants, comprising the following:

(i) A factual report prepared by Inspector Reynolds, dated 13 February 2004.

On behalf of Visionstream, objection was taken to that inspection report, in particular the sentence in para [1] on page 1 that states:

An open excavation trench approximately 1.7 metres in depth 2 metres wide and approximately 40 metres in length running parallel with Sunnyholt Road.

That objection was relevant to the factual dispute between Visionstream and the prosecutor detailed in paras [21] and [22] of the above statement of facts with respect to Visionstream.

(ii) Record disclosing no prior convictions for both defendants.

12 Also tendered by the prosecution were a collection of photographs taken by Inspector Reynolds. The photographs consist of shots of the collapsed excavation trench and the surrounding area where the accident took place.

RMA

13 On behalf of RMA, the following material was tendered:

(i) Affidavit of Mr Ross William Mitchell. Mr Mitchell is the Managing Director of RMA. RMA was incorporated in 1997. It is primarily engaged in large scale demolition, asbestos, lead paint and other hazardous material removal and site remediation. In his affidavit, Mr Mitchell described major projects that the company has been involved in and its occupational health and safety program and policies. Mr Mitchell also deposed as to the events surrounding the incident which resulted in the injury of the worker, Mr Ngauv and actions taken by RMA following the accident.

(ii) Affidavit of Mr Brett Wayne Riches. Mr Riches is currently employed by Coates Hire in Wollongong as a Branch Manager. He was formerly employed by RMA as a supervisor at the time of Mr Ngauv's accident. In his affidavit, Mr Riches detailed the discussions held on site with both of the RMA employees and Mr Snelling, a Visionstream employee on the day of the accident. He also deposed as to his experience with RMA's safe work methods for excavation and asbestos work.

(iii) Affidavit of Mr Sok Kim Ngauv. Mr Ngauv is employed by RMA. He has been employed there since January 2001. In his affidavit, Mr Ngauv confirmed the interview conducted on 11 March 2004 with Inspector Reynolds on behalf of WorkCover. In doing so, he clarified certain statements made to Inspector Reynolds in the course of that interview. He also described what occurred on the day of the incident.

(iv) Affidavit of Mr Kevin Toun. Mr Toun is employed as a labourer by RMA and has been working there since December 2002. In his affidavit, Mr Toun detailed the work instructions that he and Mr Ngauv received from Mr Riches for the task to be performed at the Kings Park work site. He also described the events leading up to and following the collapse of the trench. Mr Toun also clarified answers given in an interview conducted on 13 September 2005 by Inspector Reynolds on behalf of WorkCover.

(v) Affidavit of Mr Brian Seidler. Mr Seidler is the Executive Director of the Master Builders Association of New South Wales. Mr Seidler deposed as to Mr Mitchell's involvement in MBA-NSW as a Councillor representing the Specialist Contractors Sector of the building industry. He also detailed Mr Mitchell's involvement with the Asbestos Removal Contractors Association (ARCA) in his current role as President and also as a member of the Demolition and Asbestos Consultative Committee, established by WorkCover. Mr Seidler also commented as to Mr Mitchell's good character, diligence and commitment to safe occupational health and safety in the workplace.

(vi) Affidavit of Ms Maureen Buchtmann. Ms Buchtmann is the co- proprietor of a business registered under the name of M & J Buchtmann Consultants. In her role at M & J Buchtmann, Ms Buchtmann works as an occupational health and safety consultant and educator to the CFMEU; a WorkCover Assist Educator; and OHS consultant and Educator to Unions NSW; and a consultant on many consultative committees such as the Demolition Asbestos Consultative Committee. Ms Buchtmann has provided consulting services to RMA previously and she has also worked alongside Mr Mitchell in his position as President of the Asbestos Removal Contractors Association in WorkCover Committees. In her affidavit, Ms Buchtmann outlined her previous experiences working with Mr Mitchell in various committees and working as a consultant to RMA. Ms Buchtmann also commented as to Mr Mitchell's good character and his commitment as an employer to occupational health and safety.

14 In addition to the above affidavits, an exhibit note folder of RMA, containing various occupational health and safety policies and work manuals was also tendered.

15 In relation to RMA, no oral evidence was required.

Visionstream

16 On behalf of Visionstream, the following material was tendered:

(i) Affidavit of Mr Noel Snelling. Mr Snelling is employed by Visionstream as a Field Manager and has worked at Visionstream since 1994. Mr Snelling's experience with Visionstream includes working in and around trenches and excavations, Foxtel installation and design supervision, new estate design and construction of infrastructure. In his affidavit, Mr Snelling described Visionstream's background and the separate service contracts with the Abigroup Leighton Joint Venture (ALJV) and RMA relevant to the work being undertaken at the time of Mr Ngauv's accident. He also detailed Visionstream's risk assessment protocols and occupational health and safety policies and procedures. Mr Snelling detailed the events on the day of the accident involving Mr Ngauv and actions taken by Visionstream following the accident. As well, Mr Snelling outlined the factual circumstances relevant to the disagreement between the parties as to why the trench at that point was shored but not battered and benched as the prosecutor asserts it should have been in para [21] of the facts filed by the prosecutor.

17 Because of the factual dispute between the prosecutor and Visionstream as earlier highlighted, Inspector Reynolds, Mr Ngauv, Mr Toun and Mr Snelling were required for cross examination.


Relevant principles

18 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account.

19 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]:

....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

20 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474.

21 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646.

22 On the issue of foreseeability, the Full Bench in Capral also stated:

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.


23 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows:

... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

24 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

25 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure:

... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender.

26 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]:

Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. ... (emphasis added)

27 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]:

... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

28 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to.

Considerations

29 Both defendants have no prior convictions. As such, the maximum penalty that can be imposed with respect to both offences is $550,000 each.

30 Between them, the defendants had an obligation to ensure that a safe system of work existed and was communicated to the workers undertaking the removal of cement asbestos pipes from the trench in question.

31 The Full Bench in Capral held at 650 that ‘a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences’.

32 Further, as was stated in Capral, the presence of foreseeability ‘will necessarily result in the offence being more serious in nature’. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476).

33 Both of the defendants recognised that the work to be undertaken on site encompassed risks and undertook risk assessments prior to the work being undertaken.

RMA

34 RMA had been previously contracted by Visionstream to do similar work at another Abigroup Leighton Joint Venture (ALJV) site located at Hoxton Park Road, near Liverpool. However, the task at that location involved removing asbestos pipes from trenches that were no deeper than knee height. Trenches of that depth did not require benching or other support.

35 Perhaps relying on that past experience, Mr Brett Riches, site supervisor on behalf of RMA, prepared a safe work method statement for the task. He did so in the absence of any knowledge of the site and without being provided with Visionstream's safe work method or the ALJV site safety rules. While Mr Riches' safe work method statement had in place comprehensive measures for controlling risks associated with handling asbestos, no mention was made of risks associated with working in or near trenches.

36 On the day the work was to be done, the manner in which it was to be conducted was discussed between Mr Riches and Mr Noel Snelling, field manager of Visionstream. Subsequently, Mr Riches had a brief toolbox meeting with Mr Ngauv and Mr Toun, the employees of RMA who were to do the actual work involved.

37 Following his discussion with Mr Snelling, Mr Riches' understanding of how the work was to be performed was as follows:

... the backhoe would pull pipes out of the trench and place them outside the trench. The pipes would then be collected by Sok and Kevin and placed on the RMA truck. During the discussions I told Mr Snelling words to the effect:

I said: “RMA workers will not enter the trench because it’s a confined space. Our employees are not certified to work in a confined space. And I am concerned about the stability of the soil in the trench”.

38 Mr Riches deposed that he conveyed the above work instructions to Mr Toun and Mr Ngauv, the two RMA employees and reiterated that they were not to enter the trench. Aside from this discussion, no other safety assessment or induction was conducted.

39 Notwithstanding the instructions given by Mr Riches to the RMA employees, it would appear the work was subsequently undertaken in the manner deposed by Mr Snelling as follows.

Step 1: We would work on the trench in approximately three metre sections.

Step 2: Visionstream workers would place form ply shoring into one section of the trench between the existing gas supports.

Step 3: When this support was in place, Visionstream workers would exit the trench and the RMA workers would enter the trench in the supported section and remove the asbestos from this section only.

Step 4: Visionstream workers would then re-enter the trench and remove the form ply shoring.

Step 5: That section of the trench would then be backfilled within 5 minutes of support being removed.

Step 6: This process would then be repeated for further sections along the trench.

40 The likely reason for the work being undertaken in such a manner, contrary to his instructions, was that Mr Riches did not stay to supervise the work which Mr Toun and Mr Ngauv were to undertake. He left after 20 minutes on site to attend a meeting with another RMA client. His brief explanation of how RMA perceived the work was to be undertaken must have been superseded by an explanation by Mr Snelling to Mr Toun and Mr Ngauv. Mr Toun, in his affidavit, expressed the view that it was his belief that Mr Snelling was supervising their work in the absence of Mr Riches. It appears that Mr Riches did not leave any instructions as to who was to supervise either of the workers.

41 In any event, leaving the site without any confirmed form of supervision was unsatisfactory in that although Mr Toun and Mr Ngauv were well acquainted with asbestos removal work generally, they were inexperienced in conducting asbestos removal work in relation to a relatively deep trench. Given the circumstances, it was imperative that an experienced senior employee such as Mr Riches, who had considerable experience working around excavations and asbestos, be present on site to ensure the work was conducted safely and that neither Mr Toun nor Mr Ngauv entered the trench or, if they were to do so, it was pursuant to proper instructions and supervision by Mr Riches. As events transpired, the failure to do so compromised their health and safety.

Visionstream


42 The work being undertaken by Visionstream as part of the overall project was to disconnect and relocate existing underground Telstra network cables to a new location. In undertaking that work, Visionstream discovered that there were asbestos conduits that required to be removed and disposed of. Because of that, RMA was subsequently contracted by Visionstream to do that task, predominantly because they had already done similar work for Visionstream on another project.

43 In addition to the task being undertaken by RMA for Visionstream, there was also, running along the line of the trench, a high pressure gas main. In order to ensure that was not damaged in the task being undertaken, it was necessary to support that gas main along the line of the trench. That was done by placing acrow props every two to three metres.

44 As the facts make clear, as well as Mr Snelling's evidence, Visionstream was well aware of the risks attached to working in and around an excavated trench. It had, prior to the commencement of the work by RMA on 12 February 2004, developed a document titled Visionstream Risk Identification, Assessment and Control (Minor Projects). That assessment identified the collapse of ‘trench or embankment’ as a moderate risk. That same risk was also identified in a Safe Work Method Statement prepared for the job. The controls in that Safe Work Method Statement echoed the ALJV Site Safety Rules to bench or batter excavations that were deeper than 1.5 metres except that the ALJV Site Safety Rules went somewhat further by stating:

All trenches will need to be assessed to determine the appropriate system of edge protection i.e:

(a) Battering

(b) Benching

(c) Shoring

45 At this point, some explanation of the expressions benching, battering and shoring is required. They are methods of support used in the excavation of trenches and the like. The Code of Practice issued by WorkCover titled Excavation (exhibit 13) describes the three methods thus:

Both benching and battering of excavation walls are methods of work which minimise the risk of the soil or rock slipping onto the excavation.

Benching is the creation of stepped sides to an excavation. This is done by forming a series of vertical and horizontal planes forming a number of steps in the wall of an excavation. (See Figure 3a.) Benching is used to reduce the height of the vertical wall of an excavation by cutting a series of steps. A risk assessment should be conducted to determine the height and width of the steps necessary to ensure stability.

A batter is where the wall of an excavation is sloped back to a predetermined angle. Battering should commence from the bottom of the excavation. (See figure 3b.)

and:

Shoring may include any suitable system of temporary supports and sheeting material used to maintain the stability of the sides of an excavation. The installation and removal of shoring should take place from outside an excavation.

46 A diagrammatic example of benching, battering and shoring was included in the Site Safety Rules applicable to the work being undertaken. A copy of that diagram is annexed to this judgment for reference purposes only.

47 Mr Snelling was aware of the need to ensure that excavations deeper than 1.5 metres were appropriately benched, battered or shored. He pointed out that Visionstream conducted daily risk assessments of the trench to ensure the appropriate support measures were in place as required. As he said:

At the time of the incident, I was aware of the requirement for trenches deeper than 1.5 metres to be benched, battered or shored. In accordance with this requirement, all parts of trenches in the Relocation Project that exceeded 1.5 metres were benched.

48 There was evidence in the form of photographs produced by the defendant that depicted benching of the trench having been undertaken prior to the incident on 12 February 2004. What is not clear from the photographs is the location of the site where the trench collapsed vis-a-vis the section of the trench depicted in the photographs. The evidence is that the section of the trench where the collapse occurred was not benched.

49 According to Mr Snelling, in that part of the trench where Mr Ngauv and Mr Toun were working on the day of the accident, he and Mr Leonello, a fellow Visionstream employee and an experienced backhoe driver, had conducted an informal risk assessment and determined that that section of the trench was 'self supporting and solid' and did not consider the trench to be at risk of collapse. Nevertheless, Mr Snelling further assessed the necessity for the erection of shoring in the form of plywood held in place with acrow props as an added security for those workers who were to be in the trench removing the asbestos conduit. As he said in cross examination:

Q. Your assessment was that the trench as it stood, that is, without persons working within it, was self supporting in that sense?

A. Yes.

Q. But that when workers descended into the trench to perform work in removing the pipe, then some instability might have occurred as a result of the work?

A. Might have occurred, yes.

Q. And that is the reason you saw the need for the Formply system to be in place?

A. Yes. Yes.

Q. So you identified a risk of potential instability of the sides of the trench during the performance of the removal of work of the pipe?

A. That's correct, yeah.

50 In short, Mr Snelling properly and fairly conceded in his evidence that he identified the risk of instability that might arise when the workers were working in the trench. In other words, whilst he had assessed the trench as self supporting standing alone, he did, in his assessment, qualify that by deciding that shoring was required to address any possible instability that might occur when the workers were in the trench.

51 There was considerable evidence given as to the actual height of the trench in the location where Mr Ngauv was working at the time of the incident.

52 It should be pointed out at this stage that Mr Ngauv was the worker in the trench whereas Mr Toun was working at the edge of the trench, receiving material handed up to him by Mr Ngauv.

53 It was the Inspector's assertion that the height of the trench at the time of the accident was 1.7 metres. If that was correct, then there was a mandatory obligation for benching, battering or shoring to be in place as considered appropriate. On behalf of the defendant, it was not conceded that the height of the trench at that particular location on the day in question exceeded 1.5 metres, removing the mandatory requirement for benching, battering or shoring as determined.

54 No official measurements were taken by the Inspector to determine the depth of the trench at the time of the accident when his formal investigation was underway. Any assessment by him as to the depth of the trench was reliant predominantly on a visual assessment standing a short distance from the edge of the trench together with that of others who would appear to have been around the site at the time of Mr Ngauv's accident.
55 According to Mr Snelling, it was his assessment that the depth of the trench at that point was 1.3 metres. He based that assessment on material provided by Telstra as to the original placement of the asbestos conduits. As he explained:

[52] Annexed and marked 'M' is a copy of the Telstra Graphical Data Delivery for the Sunnyholt Road site. This diagram shows the position of two manholes that were put in place at the time the asbestos conduits were originally installed.

[53] The depth of these two manholes as marked on this diagram were 0.6 metres and 1.3 metres respectively.

[54] I am aware from my experience with trench excavation that pipes and conduits are positioned approximately 300 millimetres above the depth of the manholes to prevent the pipes from being damaged by any water build up in the bottom of the manholes.

[55] The asbestos conduits being removed on the day of the incident were solid and unbroken and ran on a gradient between the two manholes.

...

[57] This knowledge, in conjunction with the Telstra Graphical Data delivery, provided us with an approximate position of the asbestos conduits.

56 In the absence of any formal measurement, evidence as to the depth of the trench was reliant on the evidence of Mr Ngauv and Mr Toun, the two workers involved in the incident. According to Mr Ngauv, he said that when he was standing upright in the trench at the site of the accident, the edge of the trench was above his head and that he was approximately 1.68 metres in height. According to Mr Toun, who was standing on the edge above the trench receiving material from Mr Ngauv, Mr Ngauv's head was a number of inches below the edge of the trench. There was some evidence, albeit peripheral in nature, that the height or depth of the trench was greater on one side of the trench than the other because of the sloping gradient of the land. Whilst that was an issue that was raised, it was not a matter I can place any reliance upon as far as determining, to the proper standard, the actual depth of the trench.

57 There is no reason to suggest that either Mr Ngauv or Mr Toun gave evidence that was deliberately misleading as to their recollection of the depth of the trench given the respective positions they had at the time of the accident. Certainly, on any view, when seen by me in these proceedings, Mr Ngauv appeared more than 1.5 metres (or, in imperial terms, five feet) in height. Nevertheless, based on the evidence before me, there was sufficient uncertainty surrounding any accurate assessment as to the depth of the trench to conclude with any certainty what the depth of the trench was at the location and at the time the accident occurred involving Mr Ngauv. Nevertheless, I am satisfied on the evidence, particularly of Mr Ngauv and Mr Toun, that the trench was at least 1.5 metres in height but, beyond that, I cannot be satisfied to the requisite standard.

58 In other words, I am satisfied beyond reasonable doubt that the depth of the trench was at least 1.5 metres but cannot be satisfied to the requisite standard the extent to which the depth of the trench exceeded 1.5 metres.

59 Ultimately, in my view, the depth of the trench is not as relevant a factor as it would appear to have been considered on first considerations. In other words, there was an acknowledgment by Mr Snelling, on behalf of the defendant, of the need for proper shoring of the trench at the location in which the workers were removing the asbestos. Mr Snelling himself acknowledged in his step by step procedure how the work was to proceed. That is, Visionstream workers would place formply shoring supported by acrow props into a section of the trench between the gas supports. Only when this was done would RMA workers enter the trench and remove the asbestos conduit from that section of the trench. In other words, at no time was it ever intended that RMA employees should be located in the trench where there was no shoring in place. That certainly was not the position at the time the fall occurred in that at the time Mr Ngauv was standing in a section of the trench where there was no shoring in place.

60 It seems clear that Mr Ngauv understood he was supposed to remove the asbestos conduits from the trench only after the formply walls had been put in place with acrow props by Visionstream workers. That much is evident from his evidence in cross examination as follows.

Q. Mr Nguav, the pattern of the work being performed that day was: You did not take out the pipes from the trench until after the form ply walls were put in place together with the props by the Visionstream workers?

A. Yes.

Q. You were working behind them as it were?

A. Yes.

Q. Do you understand that?

A. Yes.

Q. So you had to wait for them to do any work? You had to wait until they had put the form plywood walls up and put the walls across?

A. Yes.

Q. Because the trench was already dug, but you could not go into the trench if the form plywood was not put up, could you?

A. Yeah.

Q. You agree with me? You could not go into the trench, the work you were doing that morning, before morning tea, the Visionstream workers had to put the wooden walls up and the props across before you were able to do any work, do you agree with that?

A. Yes.

Q. So you had to wait. For the work for you to do until they had put the wooden walls up and the props across, do you agree with that?

A. Yes.

Q. Because you knew that the wooden walls and the props going across was for your safety?

A. Yes.

Q. Do you understand that?

A. Yes.

Q. That is why you had a meeting at the beginning of the day to tell you the order of the work being performed, do you agree with that?

A. Yes.

Q. Were you aware in the trench there was a high pressure gas line?

A. Yes.

Q. And other props in the trench beyond the wooden form ply (were) there for the high pressure gas line, wasn't it? Along the trench there were other props all the way along the trench?

A. Yes.

Q. And that was there for the high pressure gas line?

A. Yes.

61 Despite his understanding of the method by which the work was to proceed, difficulty seems to have arisen after the morning tea adjournment. That is, up until that time, the work had been progressing in the way that Mr Snelling had outlined and the way that Mr Ngauv and Mr Toun understood. That is, they would follow the Visionstream workers along the trench once the formply, secured with props, had been put in place. When Mr Ngauv and Mr Toun returned from morning tea, it was before the Visionstream workers. There is no dispute about that. There is also no dispute that when they did return to the worksite, Mr Ngauv got back into the trench and into an area where the formply had not been put up. As he agreed in cross examination:

Q. When you finished morning tea you went back to the trench?

A. Yes.

Q. The Visionstream people when you got there had not arrived back from morning tea?

A. I don't remember.

Q. What happened was that you and Kevin got back, did Kevin come back with you?

A. Yes.

Q. And you and Kevin got back there first, is that so?

A. Yes.

Q. And you and Kevin, you jumped back in the trench to complete the work?

A. Yes.

Q. And you were doing the work in the trench in an area where the form ply had not been put up?

A. Yes.

62 There is no explanation as to why Mr Toun was in that part of the trench notwithstanding that he knew, as his earlier evidence confirmed, that the formply secured with the acrow props was in place in order to ensure his safety as he worked along the trench. Certainly, it was not required nor was it intended that he do so, as Mr Snelling confirmed both in his evidence and in his affidavit material. As he said:

[66] During the morning tea break I could not see the trench and only discovered that Mr Ngauv had re-entered the trench when we returned from the break approximately 15 to 30 minutes later. Neither I nor my crew had instructed any employee of RMA to re-enter the trench.

[67] On returning to the trench, I noticed that one of the RMA workers was in the trench with an acrow prop in his arm.

63 It would seem that the acrow props Mr Ngauv had in his hand was in fact one of the acrow props used to support the gas line and not an acrow prop being used to keep the plyboard in place in order to provide stability in the trench.

64 There is no evidence Mr Ngauv removed the prop. Certainly, he denies that and Mr Snelling did not see him remove it. In any event, it is immaterial because Mr Ngauv was, at the time the collapse occurred, working in a non-shored area of the trench. In doing so, I accept that Mr Ngauv was deviating from the accepted work method that he had previously followed prior to the morning tea adjournment. Why he did so is unclear. It may well be, and I can put it no higher than this, that Mr Ngauv simply did not understand some of the instructions he was given. I formed the view that Mr Ngauv's grasp of English, notwithstanding some of the answers he gave, was not as great as he suggested. In any event, the fact that Mr Ngauv was standing in an unshored area of the trench contrary to the system that he had adopted up to the morning tea adjournment, does not negate from the fact that Visionstream failed by way of supervision and instruction, to ensure that Mr Ngauv was not placed at risk to safety by failing to ensure that he did not enter that part of the trench before shoring had occurred.

65 Notwithstanding the prosecutor's assertion to the contrary, there is no evidence on which I can be satisfied that there had been a prior and partial collapse of the trench at a section approximately 25 metres away from where the trench collapsed on Mr Ngauv.

66 The only evidence of such an event is that of Mr Ngauv. Certainly, Mr Toun did not observe such an event and nor did the Inspector when he attended the site after the accident. It may be that what Mr Ngauv observed was a section of the trench that had been benched. In any event, it is an allegation that cannot be sustained on the evidence.

Respective culpability of RMA and Visionstream and other relevant considerations

67 Taken together, the failure of RMA to ensure that its employees were properly supervised in the work being undertaken created a risk to safety. The failure on the part of Visionstream to ensure that the method of work adopted, that is, that Mr Ngauv was to work only in a shored area of the trench heightened the risk which was already created by RMA's omission. Together, their failings rendered the risk of injury to Mr Ngauv as foreseeable.

68 Having considered the facts and circumstances in these matters and the findings I have made, I am of the view the respective culpability of the defendants is equal.

69 In consideration of all those matters, I assess the respective offences as being in the mid range of seriousness and will assess penalty for both defendants on that basis.

70 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

71 Immediately following the accident, RMA held a meeting with management to discuss the implications of the accident. Management were instructed to conduct toolbox meetings to convey the following to employees:

(i) They were not to access excavations on a work site until a job safety analysis was complete and incorporated into the safe work method statement;

(ii) RMA employees were to accept on-site instructions for work from RMA personnel only.

(iii) Any change in scope of work was to be referred to RMA management;

(iv) RMA original documentation is not to be released to a client or 3rd party under any circumstances.

72 RMA also undertook to ensure that these directives, particularly relating to accepting instructions from RMA personnel only and the prohibited entry of employees into excavations without a complete job safety analysis, were incorporated into a safe work method statement. They were also incorporated into a re-issue of the employment manual handbook.

73 Following the accident, RMA retained the services of Ms Maureen Buchtmann of M & J Buchtmann Consulting, to conduct an audit of their OHS management systems. In conducting the audit, Ms Buchtmann stated:

I found that the management systems already used by RMA were quite robust and do not require too much more input from me...

The current OH& S management systems at RMA also demonstrate an ongoing commitment to ensure that training and supervision is provided to employees.

74 On behalf of RMA, Mr Mitchell's commitment to safety was also attested to in the affidavit of Mr Brian Seidler, of the Master Builders Association of New South Wales. Mr Seidler states that:

In all my dealings with Mr Mitchell, I have found him to act in the best interests of those who undertake work in the demolition and asbestos removal industries. Mr Mitchell's diligence in improving these industries' safety procedures and awareness is recognised by his peers, industry organisations and the construction unions. He has applied his broad knowledge and diligence to the occupational health and safety procedures and systems within his own company.

75 Immediately after the accident involving Mr Ngauv, Visionstream issued a safety alert to staff reiterating the safety requirements for excavations and trenches. Visionstream’s national health and safety manager also re-trained its field staff about workers' safety on site, particularly relating to contractors. Visionstream also developed a program called ‘Project 5’ for the purposes of promoting occupational health and safety awareness in late 2004. The program has commendably received a Comcare Safety Award for 2006 for excellence in occupational health and safety.

76 Visionstream has also introduced online safety learning modules for field staff, contractors and managers, which address hazard and risk control measures. Visionstream has also established a Senior Management Safety Committee to regularly review safety performance and formulate safety strategies.

77 Both of the defendants are to be commended for their prompt action in taking these remedial steps.
78 All of the above demonstrates a clear commitment to workplace safety by RMA and Visionstream.

79 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that:

We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.

80 In respect of specific deterrence, the Full Bench held in Capral at 644-645:

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act.

81 General deterrence is a relevant consideration in this instance. Both of the defendants operate in industries where the workers’ safety is a paramount consideration and risks to safety are ever present. However, in light of the remedial steps undertaken by the defendants, considerations of specific deterrence will be tempered accordingly.

82 Both defendants are entitled to have their plea of guilty taken into account in determination of penalty. In assessing the impact of the plea, the Court is guided by the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. In relation to RMA, I award a discount in favour of the defendant of twenty five per cent. In relation to Visionstream, the utilitarian value of the entry of the plea of guilty has been eroded by the nearly two days of hearing in relation to the factual matters in dispute between it and the prosecutor. Accordingly, the discount will be modified to fifteen per cent.

83 In addition to the remedial steps taken above, both defendants have cooperated with WorkCover in its investigations and have expressed contrition for the incident involving Mr Ngauv. I accept that both defendants have taken the incident very seriously and have made the appropriate adjustments to the deficiencies in their respective workplace safety policies.

84 RMA’s actions to assist Mr Ngauv following the incident are also laudable. While Mr Ngauv was recovering from his injuries, RMA paid Mr Ngauv his usual pay in addition to his worker’s compensation insurance payments. RMA also organised a medical examination to confirm Mr Ngauv’s suitability to return to work on 19 April 2004. Mr Ngauv continues to be employed by RMA as a full-time employee.

85 Both defendants are entitled to further favourable consideration in relation to the above matters.

86 Taking into account all the matters referred to, I make the following orders:

(1) Matter No IRC 6207 of 2005: WorkCover Authority of New South Wales (Inspector Reynolds) v RMA Demolitions Pty Ltd: Prosecution arising under s 8(1) of the Occupational Health and Safety Act 2000:

(i) The defendant is guilty of the offence charged;
(ii) I impose a penalty in this matter of $78,000;

(iii) I allocate a moiety to the prosecution on the usual terms.
(2) Matter No IRC 6208 of 2005: WorkCover Authority of New South Wales (Inspector Reynolds) v Visionstream Pty Ltd: Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000:

(i) The defendant is guilty of the offence charged.
(ii) I impose a penalty in this matter of $90,000.

(iii) I allocated a moiety to the prosecution on the usual terms.

(3) I order the defendants pay the prosecutor's costs of the proceedings relative to their particular offence as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

[<img src="/ircjudgments/2007nswirc.nsf/files/SiteSafetyRules.jpg/$file/SiteSafetyRules.jpg" alt="Site Safety Rules in 2007 NSWIRComm 15">]



LAST UPDATED: 2 August 2007