Inspector Maurice Vierow v Barclay Mowlem Construction Limited [2008] NSWIRComm 1 (10 January 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Maurice Vierow v Barclay Mowlem Construction Limited [2008] NSWIRComm 1



FILE NUMBER(S):
IRC 34 and 35

HEARING DATE(S):
12 December 2007

DATE OF JUDGMENT:
10 January 2008

PARTIES:
PROSECUTOR:
Inspector Maurice Vierow

DEFENDANT:
Barclay Mowlem Construction Limited

CORAM:
Boland J


CATCHWORDS: Occupational health and safety - Prosecutions under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - Construction industry - Crane toppled over - Death and serious injury - Guilty pleas - Multiple failures to ensure safety - Objective seriousness of the offences towards the higher end of the seriousness range - Subjective factors - Parity - Totality - Fines imposed - Costs

LEGAL REPRESENTATIVES
PROSECUTOR:
Mr R Reitano of Counsel
Solicitor: Mr G P Diggins
WorkCover Authority of New South Wales

DEFENDANT:
Mr B D Hodgkinson of Senior Counsel
Solicitor: Mr M J Byrnes
Clayton Utz Lawyers

CASES CITED:
Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan [2001] NSWIRComm 106; (2001) 105 IR 181
Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66
Inspector Maurice Vierow v Linddales Pty Ltd [2007] NSWIRComm 255
Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Narayan v Inspector Dave Chamings [2007] NSWIRComm 281
Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s 21A(2)(d)
Occupational Health and Safety Act 1983
Occupational Health and Safety Act 2000 ss 8, 8(1), 8(2)


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BOLAND J

Thursday 10 January 2008

Matter No IRC 34 of 2007

INSPECTOR MAURICE VIEROW v BARCLAY MOWLEM CONSTRUCTION LIMITED

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


Matter No IRC 35 of 2007

INSPECTOR MAURICE VIEROW v BARCLAY MOWLEM CONSTRUCTION LIMITED

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

JUDGMENT
[2008] NSWIRComm 1

1 Barclay Mowlem Construction Limited ('the defendant') was the principal contractor at a construction site at 172 Casuarina Way, Kingscliff known as ‘Peppers at Salt’. The defendant employed Mr Peter Davis as its construction supervisor/foreman on the site. The defendant had contracted with Marveldale Pty Ltd, trading as East Coast Concrete Contractors ('Marveldale') to undertake concreting tasks on the site. Marveldale employed Mr Michael Charles Palmer and Mr Caine Lauder at the site.

2 The defendant had also contracted with Linddales Pty Ltd ('Linddales') for the supply of labour to the site. Pursuant to that contract Linddales supplied Mr Mark James.
3 On 15 January 2005, Mr James was working as the operator of a Manitou mobile crane. In the process of transporting concrete in a kibble suspended by a chain from a jib attached to the boom of the Manitou, the crane hit a bump, became unstable and toppled over down a ramp. As a consequence, Mr Palmer received fatal injuries after being struck by the jib and kibble. Mr James received serious injuries as a result of being thrown around the interior of the cabin of the crane as it fell.

4 The defendant was prosecuted by Inspector Maurice Vierow of the WorkCover Authority of New South Wales for breach of ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000. Those subsections provide:

Duties of employers

(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

(2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

5 In the application for order in relation to the charge under s 8(1) of the Act it was alleged that the defendant failed to ensure the health, safety and welfare at work of all its employees, in particular Peter Davis in that the defendant:

(a) Failed to provide and maintain a system of work that was safe and without risk to the health of Davis for the construction of staircase 5.1;

(b) Failed to ensure that plant, in particular a Manitou mobile crane, provided for use in the construction of staircase 5.1 was safe and without risk to Davis’ health when properly used;

(c) Failed to provide such information, instruction and training as was necessary to ensure Davis’ health and safety at work;

(d) Failed to provide such supervision as was necessary to ensure Davis’ health and safety at work.

6 In the application for order in relation to the charge under s 8(2) of the Act it was alleged that the defendant failed to ensure that persons not in its employment, in particular Michael Charles Palmer, Caine Lauder and Mark James, were not exposed to risks to their health and safety arising from the conduct of its undertaking whilst at its place of work in that the defendant:

(a) Failed to provide and maintain a system of work that was safe and without risk to the health of the workers for the construction of staircase 5.1;

(b) Failed to ensure that plant, in particular a Manitou mobile crane, provided for use by the workers was safe and without risk to their health when properly used;

(c) Failed to provide such information, instruction and training as was necessary to ensure the workers’ health and safety at work;

(d) Failed to provide such supervision as was necessary to ensure the workers’ health and safety at work.

The defendant pleaded guilty to both charges.

7 Linddales was also prosecuted under s 8(1) of the Act in relation to the same incident. In Inspector Maurice Vierow v Linddales Pty Ltd [2007] NSWIRComm 255 the Court imposed a penalty of $80,000.

Agreed statement of facts

8 The prosecutor tendered an agreed statement of facts of some 39 paragraphs with 12 attachments. The attachments were as follows:

1. Series of 15 photographs taken by Inspector Maurice Vierow on 15 January 2005 and 19 January 2005

2. Factual Inspection Report prepared by Inspector Maurice Vierow, dated 25 January 2005

3. Serious Incident Technical Report prepared by Bill Chachaty, Engineer, dated 17 March 2006

4. Page 1 – 8 of the Manitou Operators Manual dated 7 December 1995

5. Barclay Mowlem Safe Work Method Statement for Manitou Operations on Project 908 dated 26 October 2004

6. Barclay Mowlem Safe Work Method Statement for Manitou Operations on Project 908 dated 3 February 2005

7. WorkCover NSW Code of Practice-Technical Guidance

8. Australian Standard AS 2550.5-1993 Cranes, hoists and winches—Safe use Part 5: Mobile cranes

9. Australian Standard AS 2550.5-2002 Cranes, hoists and winches—Safe use Part 5: Mobile cranes

10. Australian Standard AS 1418.5-1995 Cranes, hoists and winches Part 5: Mobile cranes

11. Australian Standard AS 1418.5-2002 Cranes, hoists and winches Part 5: Mobile cranes

12. Prior convictions statement for defendant.

9 In relation to the persons who were placed at risk, the agreed facts indicated that Mr Palmer was employed as a labourer and his normal duties involved the performance of concrete patching work. Mr Lauder was employed as a concretor and exercised supervisory functions on behalf of Marveldale at the site. Mr James had worked in the construction industry for 25 years. Whilst working for Barclay Mowlem, Mr James had received training and had subsequently been certified to operate a non-slewing mobile crane. He had also been trained and subsequently certified for a forklift licence and basic scaffolding tickets. Mr Davis was the construction supervisor/foreman of the defendant responsible for the area of the site in question.

10 The work being performed at the time of the incident involved the construction of concrete stairs located adjacent to the bottom of a ramp (“the ramp”) leading to the basement areas of sections of the site known as buildings 4 and 5. The bottom section of the ramp had a slope of approximately 8.2 degrees, which levelled out at the base of the ramp. The surface of the ramp was predominantly compacted gravel with a transverse strip of rock spalls approximately 600mm in width at its base.

11 The agreed facts explained that the way the work was to be performed was that the concrete was to be transferred from a HiMix Concrete agitator truck to a kibble suspended by chain from a jib attached to the boom of the Manitou. This transfer was to take place in an area at the top of the ramp. The Manitou was then to reverse down to the bottom of the ramp before proceeding to travel slightly up and across the slope of the ramp at an angle of between approximately 45 degrees and 60 degrees to a concrete block wall parallel to the stairway being constructed. The kibble was then to be positioned at the required location with the assistance of workers present in the stairway area and its contents discharged. Messrs Palmer and Lauder were the workers in the stairway area who were required to position and discharge the kibble. As earlier indicated, Mr James was the driver of the Manitou.

12 The statement of agreed facts described what happened:

On 15 January 2005, James discussed the method of work with Davis and James agreed with Davis that the method of work discussed above was the best method. Prior to agreeing on the above method of work, Davis asked James, being licensed to operate the Manitou, to assess staircase 5.1 and to ensure it was okay to use the Manitou.

Since receiving his certificate of competency in October 2004 James had driven the Manitou with the kibble on it half a dozen to a dozen times. James had not previously performed the sort of work set out in [paragraph 11 above].

At or around 7.00 am, the first pour of concrete at staircase 5.1 occurred using the above system of work without incident. This pour was directly supervised by Davis and took place in his presence. Davis was standing next to the Manitou as the pour took place.

After the first concrete pour, the Manitou was reversed back down the Ramp to the same position it had been prior to the commencement of the approach for the first pour. The Manitou then commenced its approach to the wall for the second pour. This approach was on a different angle to that for the first pour with the result that the Manitou approached squarer to the wall and on a greater angle to the Ramp.

During the course of the approach for the second pour of concrete, the Manitou hit a bump, became unstable and toppled over down the ramp and into the basement area of building 5.

As a result of the Manitou toppling over, Palmer received fatal injuries and James received serious injuries. Palmer received his injuries as a result of running out of the stairway (presumably in an attempt to escape what he thought was the path of the falling crane) and being struck by the jib and kibble. James received his injuries as a result of being thrown around the interior of the cabin of the Manitou as it fell.

The Manitou toppled over because its positioning across the slope of the ramp with an elevated kibble weighing (together with the concrete contained therein) 1100 kilograms transferred the centre of gravity of the Manitou beyond its lateral tipping axis.

13 In describing how the system of work was unsafe, the agreed facts noted that the risk associated with using plant in the manner earlier described was well recognised. Australian Standard AS 2550.5-2002 Cranes, hoists and winches—Safe use Part 5: Mobile cranes (“AS 2550.5-2002”) specifically states that when travelling with a suspended load a mobile crane should avoid traversing across a slope. It was further explained in the agreed statement that:

The concrete block wall parallel to staircase 5.1 was 3.6 metres in height. Reinforcement bars protruded a further one metre vertically from the top of the wall resulting in an overall height of 4.6 metres over which the kibble had to be lifted. The physical layout of the site at the area of the concrete pour and the space available for the operation of the Manitou was such that it appears that the Manitou had to approach the concrete block wall with its boom extended and elevated resulting in an elevated suspended load.

Travelling and manoeuvring with a raised and freely suspended load resulted in excessive swinging and inertia forces being exerted by the load. These forces adversely affect the stability of a mobile crane. Page 1-8 of the operator’s manual for the Manitou states: Never transport a load high up.

14 Alternative means of supplying concrete to staircase 5.1 were available and these were described as including:

· the use of a slewing, telescopic boom-type mobile crane equipped with a hoisting winch;

· the use of a boom-type concrete placing unit;

· the use of a concrete pump coupled to a concrete line;

· the use of the Manitou as configured on 15 January 2005 but approaching staircase 5.1 from an angle which positioned the Manitou in the basement area...

15 The agreed facts described the unsafe nature of the crane itself. The crane was equipped with a spirit level indicator in the operator’s cabin to indicate whether or not the crane was level. This indicator did not show the degree of slope of the ground upon which the Manitou rested nor the extent of out-of-level positioning of the crane. The relevant Australian Standard requires that the slope indicator shall indicate the extent that a crane is out-of-level. Further, the crane failed to comply with cl 7.3 of AS 1418.5-2002 in the following ways:

· a load indicator system to measure and display the mass of the load being lifted was not fitted;

· a rated capacity limiter to restrict further motion of the crane within the tolerance of 100% to 110% of the rated capacity was not fitted;

· an angle indicator to indicate the angle of the boom or jib to the horizontal at each operating position was not fitted;

· a telescopic boom length indicator to indicate the operating length of the extended boom was not fitted.

16 The defendant's failure to provide information, instruction and training was recorded in the agreed facts in the following terms:

Clause 10.1.1 of AS 1418.5-2002 requires that the manufacturer of a mobile crane provide sufficient charts to clearly define the rated capacity of the crane for all configurations (“rated capacity charts”). That Standard sets out various minimum requirements for rated capacity charts including the degree of level applicable to the chart. The rated capacity charts in the Manitou did not comply with clause 10.1.1 in that:

a) They were printed in French rather than English.

b) They were not applicable to the Manitou as configured but rather to when it was fitted with forks. The Manitou on the day was fitted with a jib attachment and therefore the ratings were wrong.

c) The speeds at which the Manitou may travel with suspended loads were not shown.

d) No charts were provided to clearly define the rated capacity of the Manitou when on sloping ground.

e) The tyre size, ply rating and pressures for the Manitou duty were not shown.

f) The in-service wind speed for each configuration was not shown.

With the exception of the failure to show the in-service wind speed for each configuration, the various failures to comply with AS 1418-2002 set out in paragraph 29 also constituted failures to comply with AS 1418.5-1995. Clause 122 of the Occupational Health and Safety Regulation 2001, amongst other things, requires a seller or transferor of plant to provide the purchaser or new owner of plant with any information, data or certificate provided or kept in accordance with AS 1418.5-1995.

The defendant had not devised a safe work method statement for the construction of staircase 5.1.

The defendant had in place a safe work method statement for the operation of the Manitou (“the SWMS”). The SWMS identified the tipping of the machine as a potential hazard in its operation with a jib attachment. The control measures prescribed by the SWMS included ensuring that the machine was operated on a level surface. On 15 January 2005 the Manitou was operated by James on a slope of 8.2 degrees. James failed to check the spirit level indicator and later commented that he did not regard such a step as necessary. Davis, the defendant’s supervisor at the site, had not read the SWMS.

The SWMS provided that “all inductees must, before operating the Manitou, sign off that they have read and understood the Manufacturer’s Operators Manual”.

The operator’s manual in respect of the Manitou did not show the allowable slopes or load charts for the Manitou as configured on 15 January 2005.

As at 15 January 2005 James had read only some of the operator’s manual.

When interviewed on 27 January 2005, James had no recollection of having read the SWMS.

Subsequent to the accident on 15 January 2005, the defendant revised the SWMS for the operation of the Manitou. The revised SWMS deals in specific terms with the activity step of travelling with a load. It provided as follows:

Always travel with the load facing uphill when travelling with a load on a longitudinal slope (ie. ramp).

Tilt correction must be used when travelling on side slope. The machine must not travel on side-slope beyond the tilt-correction capacity of the machine (ie. the bubble on the spirit level in the operator’s cabin must always be between the two black lines).

17 As to the failure to provide supervision, the agreed statement indicated that Mr James was issued with certification to operate the Manitou on 1 September 2004. He had operated the Manitou under supervision for a period of about one and a half to two months prior thereto. During most of the time that Mr James operated the Manitou it was fitted with a forklift attachment rather than a crane jib. Mr James was said to have estimated that as at 15 January 2005 he had driven the Manitou between half-a-dozen and a dozen times configured in the manner that it was on that day.

18 Further, it was stated that Mr Davis had no experience operating a Manitou crane. He held no certificate of competency to operate such a crane and was unaware of its capabilities and limitations.

19 It was an agreed fact that the attempted second pour of concrete occurred in the absence of supervision.

20 Finally, the agreed statement advised that the defendant had three prior convictions under the Occupational Health and Safety Act 1983.

Evidence for the defendant

21 The defendant's evidence consisted of an affidavit of Mr Mark Vining, General Manager - Human Capital. Mr Vining was employed by Laing O'Rourke Australia Management Services Pty Limited, a related entity of the defendant. Mr Vining was authorised by the defendant to make his affidavit in these proceedings. Exhibited to the affidavit were 40 documents referred to in the affidavit.

22 Mr Vining explained that the defendant was part of a larger group of companies, the Laing O’Rourke Australia Group, which constitutes a large multi-disciplined engineering and construction business operating throughout Australia, United Kingdom, Middle East, South East Asia, the Pacific Rim and Europe. The Group employs over 2103 employees throughout its operations in Australia. In addition, the Group engages approximately 60 subcontractors (including concrete and labour hire subcontractors) (approximately 1000 workers in total) at any given point in time.

23 At the time of the incident the defendant employed approximately 33 employees to perform work and provide supervision at the construction site at the ‘Peppers at Salt’ Site. Mr Vining stated that at the time of the incident, Mr Peter Davis was a full-time employee of the defendant, engaged in the position of Construction Foreman in the Building Group North division, and he was responsible for supervising work performed at the Site, among other things.

24 Mr Vining confirmed that the defendant's engagement of Marveldale and Linddores and employees of these two firms were engaged to work on the site.

25 The deponent referred to the defendant's current policy relating to occupational health and safety and the policy that applied at the time of the incident. Mr Vining also relayed the defendant's strong commitment to ensuring the health, safety and wellbeing of its employees, contractors, clients and members of the general public.

26 Reference was made to the defendant's OHS Management System (OHSMS) at the time of the incident, which included the following:

The OHSMS applied to all business units of the Building Group operations of the Defendant and included the following:

(a) Section 1 - General - dealing with, among other things, the Defendant's health and safety obligations and management framework;

(b) Section 2 - Policy - dealing, among other things, with the Defendant's OHS Policy;

(c) Section 3 - Planning - dealing, among other things, with:

(i) the identification of hazards and assessment and control of risks using safe work method statements, job safety analyses and worksite inspection;

(ii) the selection, engagement and control of suppliers and subcontractors, including requiring suppliers and subcontractors to submit appropriate safety documentation such as safety policies, procedures, work method statements and copies of certificates, registrations and licenses of personnel and plant; and

(iii) the preparation of a specific Health and Safety Plan for all construction projects;

(d) Section 4 - Implementation - dealing, among other things, with responsibilities and accountabilities for OHS, training, competency and induction, consultation, communication and reporting, hazard identification, risk assessment and control, control of risks associated with plant and subcontractor management;

(e) Section 5 - Measurement and Evaluation - dealing, among other things, with the inspection and auditing of projects, the OHSMS, safe work method statements (SWMS) and plant and equipment;

(f) Section 6 - Management Review - dealing, among other things, with operational and strategic review of the OHSMS;

(g) Section 7 - Management Systems Cross Reference; and

(h) Section 8 - References - setting out relevant procedures, work instructions and forms such as P0401 - Purchasing and Subcontracting, P0502 - Plant and Equipment, P1301 - Induction and Training and W0950 - Risk Assessment and Work Method Statements.

At the time of the Incident, the OHSMS was certified as compliant with AS/NZS 4801:2001...

It was noted that hard copies of, and electronic intranet access to, the OHSMS and the Supporting Documentation were available at each of the defendant's workplaces, including the ‘Peppers at Salt’ site. To the extent that the matters dealt with in the OHSMS and Supporting Documentation were relevant to a worker, Mr Vining stated that the worker was required to undergo training in order to become familiar with his or her responsibilities and the prescribed safety requirements. This was undertaken, for example, by induction training, toolbox talks, competency training and OHS Committee meetings.

27 The defendant had in place a Project Safety Plan at the time of the incident. In particular, the Project Safety Plan:

(a) required all employees to receive general safety induction, site specific induction and work activity induction training (delivered to all relevant employees...);

(b) required communication, including communication via Site Instructions, tool box sessions, subcontractor co-ordinator meetings and OHS Committee meetings;

(c) required plant and equipment to be maintained in a safe and serviceable manner;

(d) required subcontractors at the Site to submit a Site Safety Plan and SWMS covering all construction activities to be undertaken by the subcontractor prior to commencing work at the Site (submitted by all relevant subcontractors...);

(e) detailed the procedure for emergency preparedness and response at the Site;

(f) required regular monitoring and measurement of project operations and activities that could have a significant impact on safety using a variety of means including weekly safety inspections, random checks and ongoing auditing;

(g) required safety records to be prepared, controlled, filed and maintained on Site;

(h) contained the results of a detailed risk analysis undertaken on 25 May 2004, dealing with risks and potential hazards at the Site and their control measures; and

(i) detailed the requirements for supervision at the Site.

28 According to Mr Vining, the Project Safety Plan was reviewed quarterly. However, further review was required outside of the quarterly period if there was a significant change in the work at the Site or evidence that the risks assessments were no longer valid. A copy of the Project Safety Plan was provided to all signatories and a master copy was kept in the Project Director's office. Further, a copy of the Project Safety Plan was provided to each subcontractor during the tender process and formed part of each successful subcontractor's contractual obligations.

29 It was Mr Vining's evidence that in accordance with the requirements of the Project Safety Plan, at the time of the incident, the defendant, among other things:

(a) had established an active OHS Committee at the Site. The OHS Committee met weekly and discussed matters such as first aid, near misses, site rules and perceived risks at the Site...

(b) held regular tool box talks at the Site...

(c) held weekly subcontractor meetings at the Site which were attended by various supervisors and managers to discuss, amongst other things, safety at the Site...

(d) had a system in place to ensure that Site Safety Plans submitted by subcontractors were reviewed and verified...

(e) had a system in place to ensure that the SWMSs submitted by subcontractors were reviewed and verified...

(f) had a system in place to ensure that Site Safety Instructions were issued to subcontractors to ensure compliance with their safety obligations...

(g) had a system in place to ensure that weekly safety checks were undertaken by the foreman of each building at the Site...

(h) had a system in place to ensure that daily safety checks were undertaken at the Site... and

(i) had a system in place to report incidents, including near miss incidents.

Examples of the Project Safety Plan in action were provided in the exhibits to the affidavit.

30 Mr Vining described the hierarchy of supervision within the defendant's operations and the relevant OHS Responsibility Statements that applied to each level of supervision. The defendant had appointed a Project Director and Project Manager for the site who were responsible for the overall management of construction activities at the site. Reporting to the Project Manager were two Site Managers. The Site Managers were appointed to manage construction work on Buildings 1 to 4 and Buildings 5 to 8 respectively. In relation to the day-to-day supervision of the construction work being undertaken on building 5 it was noted that Mr Davis was responsible for supervising the structural work. In addition, the defendant engaged a Project Safety Advisor for the site. The Project Safety Advisor’s responsibilities included:

(a) reviewing and verifying subcontractors' Site Safety Plans and SWMSs, including reviewing copies of weekly SWMS checklists for each subcontractor on Site;

(b) conducting daily safety checks at the Site and completing Weekly Safety & Environment Checklists;

(c) managing, reviewing (including reviewing the appropriateness of corrective action) and responding to accident reports, in consultation with the Project Director and Project Manager;

(d) issuing Site Safety Instructions and ensuring that any non-conformance was closed out by a specified date or referred to the Project Manager;

(e) preparing Project Monthly OHS & Environment Report and ensuring that the Report is provided to the Project Manager and Area OHS Manager;

(f) attending OHS Committee meetings and tool box talks; and

(g) attending all Project Safety Advisors' Meetings.

31 Mr Vining described the occupational health and safety arrangements between the defendant and Marveldale and the defendant and Linddores. The contractual arrangement with Marveldale required Marveldale to:

(a) prepare and provide a Site Safety Plan prior to commencing work at the Site. Relevantly, the Site Safety Plan:

(i) outlined Marveldale's safety management strategy in relation to concrete work to be undertaken at the Site;

(ii) listed the hazards and associated control measures for concrete placement at the Site, including the placement of concrete in or around footings, columns, the ground and suspended slabs;

(iii) identified Marveldale's employees who had completed the Work Activity Induction on 10 June 2004, including Mr Caine Lauder, Supervisor, Marveldale;

(b) prepare and provide relevant SWMSs;

(c) familiarise itself and comply with the Project Safety Plan;

(d) immediately inform the Defendant of all accidents involving its employees in the prescribed circumstances;

(e) nominate one of its on-site employees as a safety representative for Marveldale at the Site;

(f) maintain a detailed register of plant and equipment; and

(g) prepare and provide weekly reports on prescribed matters, including personnel and plant on Site.

32 In relation to Linddores, the Site Specific Plan dealt with, among other things, hazard identification, risk assessment and control, induction, training and SWMSs.

33 In relation to training Mr Vining stated that as required under the Project Safety Plan, Mr Davis, Mr Palmer, Mr James, and Mr Lauder were provided with general safety induction training, work activity induction training and site-specific induction training prior to commencing work at the Site. In addition to having completed OHS Induction Training, Mr James had achieved the certificate of competency for non-slewing mobile cranes having been assessed by an external provider.

34 In relation to the Manitou, Mr Vining stated that after purchasing the crane in 2001, the defendant:

(a) developed a SWMS for Manitou Operations;

(b) developed a maintenance schedule and records for the Manitou to ensure that the Manitou was maintained;

(c) provided trainee operators with the opportunity to attend external training and assessment on the Manitou;

(d) provided operators with training on the safe work procedures set out in the Manitou SWMS;

(e) provided operators with on-the-job training under the direct supervision of experienced and competent Manitou operators; and

(f) developed a training log-book for trainee operators.

35 Mr Vining described the procedures put into place to avoid a re-occurrence of the incident. Immediately following the incident:

(a) the Site was secured;

(b) the use of the Manitou was suspended on the project and the use of all Manitou’s across the Defendants operations Australia wide was suspended;

(c) the Defendant’s Corporate OHS Risk Manager and the OHS Manager for Building Group – North assisted the WorkCover Authority of New South Wales with its investigation into the incident;

(d) counselling support was provided by the Company on-site to all workers for the following week, and was made available to Mr James.

36 Further, shortly after the incident, the Corporate OHS Risk Manager issued two Safety Alerts to the defendant's employees. The first Safety Alert outlined the immediate action required for the use of all Manitou’s at the defendant's workplaces, whilst the second and subsequent Safety Alerts specified ongoing controls required for the operation of the Manitou crane.

37 Since the incident, the following steps were taken:

(a) the Manitou SWMS was revised in consultation with the OHS Committee, experienced and competent Manitou operators, OHS professionals and Site management, so as to include detailed directions relating to the tipping of the Manitou and use of the tilt correction device to level the cabin;

(b) on 9 February 2005, the Defendant issued instructions to all Group Safety Managers to review existing procedures for operating Manitous within each Business Group. The revised Manitou SWMS was provided to each Group Safety Manager to guide the review process;

(c) on 10 February 2005, representatives from the Defendant and NTP met to discuss the suitability of the McCormack lifting jib due to concerns that the safe working load marking at each point of the McCormack jib did not correspond with those specified by the structural engineer responsible for design verification; and

(d) a Manitou-specific Operators' Training Program was prepared by NTP in consultation with the Defendant, and training packs were provided to the Defendant’s employees.

On 1 March 2005, Manitou operators at the Site completed the Training Program.

38 In relation to cooperation with the investigating authority, Mr Vining stated:

The Defendant notified WorkCover of the Incident on the day it occurred.

Subsequently, WorkCover conducted an investigation into the Incident. The Defendant has at all times cooperated with WorkCover in the conduct of the investigation by responding to requests for information in a timely manner and making its officers available at the earliest possible time.

The Defendant entered a plea of guilty at an early opportunity.

39 In connection with remorse and contrition, Mr Vining stated:

The Defendant expressed its condolences to the family of the deceased. Further, the Defendant offered Mr Palmer's family financial assistance with funeral costs through representatives of the CFMEU.

Further, the Defendant was extremely concerned about the health and wellbeing of Mr James. To assist Mr James, the Defendant provided the services of a professional counsellor through its Employee Assistance Program to Mr James during his hospitalisation and after his release from hospital.

40 As to the defendant's community standing, it was stated:

The Defendant is an active participant in activities that promote the welfare of its employees and the community. For example, the Defendant:

(a) supports the Queensland Cancer Fund;

(b) supports Vision Australia;

(c) is a sponsor of the Freedom Foundation One80TC;

(d) supports the Police Citizens Youth Association; and

(e) offers a range of scholarships to tertiary students, including for example, the University of Technology, the University of Sydney, Newcastle University and the University of New South Wales.

Over the past 5 years, the Defendant has contributed in excess of $500,000 to charities, including the charities listed above.

Consideration

41 The defendant has pleaded guilty to two charges under s 8 of the Occupational Health and Safety Act. Both charges involve extensive and serious failures to ensure the safety of personnel at the 'Peppers at Salt' site on 15 January 2005. The failures included a failure to provide and maintain a system of work that was safe and without risk to health, a failure to ensure plant was safe, a failure to provide such information, instruction and training as was necessary to ensure the health and safety at work of personnel and a failure to provide such supervision as was necessary to ensure health and safety.

42 It is difficult to comprehend why such a reputable firm, with long experience in the construction industry and which undoubtedly had very good occupational health and safety policies and practices in place according to the evidence of Mr Vining, failed in so many ways to ensure the health and safety of personnel on the site. But fail it did, leading to the creation of a risk that had tragic consequences.

43 The failure in relation to the system of work occurred essentially because the defendant allowed the crane to traverse across a slope with a raised and freely suspended load. This resulted in excessive swinging and inertia forces being exerted by the load. Those forces adversely affected the stability of the crane.

44 It was quite unnecessary for the crane to be used for transporting the concrete to staircase 5.1. As the agreed facts revealed, there were at least four alternative means of supplying concrete, all of them simple and straightforward.

45 In relation to the unsafe plant, the agreed facts show that the crane did not have indicating and limiting devices fitted that would have assisted the operator to assess whether the crane was safe to operate. Furthermore, the crane's rated capacity charts did not comply with the relevant Australian Standard, thereby constituting a failure to provide necessary information. As to the failure to provide information and instruction the defendant had not devised a safe work method statement for the construction of staircase 5.1; neither Mr Davis nor Mr James had read the SWMS applicable to the operation of the crane, which required the crane to be operated on a level surface; and whilst the SWMS provided that “all inductees must, before operating the Manitou, sign off that they have read and understood the Manufacturer’s Operators Manual” the operator’s manual did not show the allowable slopes or load charts for the Manitou as configured on 15 January 2005.

46 Critically, in relation to the failure to provide supervision, Mr Davis had no experience operating a Manitou crane. He held no certificate of competency to operate such a crane and was unaware of its capabilities and limitations. Moreover, the attempted second pour of concrete occurred in the absence of supervision.

47 As it was recently observed by the Full Bench in Narayan v Inspector Dave Chamings [2007] NSWIRComm 281 at [40]:

[40] Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] and [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 1123; (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32].

48 The risk, which was the subject of the breaches in these proceedings, was the risk to the health and safety of personnel as a consequence of the crane toppling over. Manifestly, the risk in this case was serious indeed.

49 In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 it was held that it will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible. See also Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 70. The risk of the crane toppling over and injury or death being the result was foreseeable. That the risk was foreseeable was evident from the training documents completed by Mr James when he gained his Manitou operator’s ticket in September 2004 and from the SWMS applicable to the operation of the Manitou.

50 All of the foregoing factors - the unsafe system of work, the unsafe plant, the inadequacies in the provision of information, instruction and training, the failure to provide supervision, the potential for serious consequences flowing from the risk, the foreseeability of the risk and the availability of simple, straightforward measures that would have avoided the risk - lead irresistibly to the conclusion that in terms of the objective seriousness of the offences they are towards the higher end of the seriousness range.

51 General and specific deterrence are further considerations to be taken into account in determining sentence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [71] to [80]. The defendant acknowledged that it was appropriate to have regard to the need for general deterrence. Undoubtedly that is correct, especially given the prevalence of cranes in the construction industry and the inherently dangerous nature of that industry.

52 In relation to specific deterrence, it must be acknowledged that the defendant has taken appropriate steps to avoid a recurrence of the incident. But as the Full Bench observed in Capral at [77]:

[W]e think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. At least where the offender continues to be an employer, risk to safety or its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may incur both by omission and omission. Employers are required to maintain constant diligence and take all practical precautions to ensure safety in the work place.

53 Consistent with that observation I propose to give some weight to specific deterrence.

54 There are a number of relevant subjective factors to be given weight. First, the defendant entered a plea of guilty at an early opportunity. That should attract a discount of 20 per cent. Secondly, I accept the expressions of remorse and contrition, manifested as they were in the early guilty plea and the assistance to Mr James and the family of Mr Palmer. Thirdly, there was cooperation with the Work Cover Authority in its investigation of the matter. Fourthly, the defendant is entitled to rely on the remedial steps taken after the incident to meet its occupational health and safety obligations. I have already referred to these steps; they were timely, comprehensive and appropriate. Fifthly, as the prosecutor acknowledged, the defendant may be regarded as a good corporate citizen.

55 As to the last consideration, however, it is noted that the defendant has three prior convictions: 2001, 2003 and 2004. This is a matter to be taken into account in fixing penalty: s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. The prior convictions are a worrying sign, especially given the nature and quality of the instant offences. However, I am not satisfied that the defendant's antecedent criminal history is part of a continuing attitude of disobedience of the law which, having regard to the need for retribution, deterrence and protection of society, indicates a more severe penalty is warranted: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477.

56 In light of the sentence imposed on Linddales, the question of parity, or perhaps more accurately the need for consistency in the sentencing of offenders for what may be described as “related offences”, arises. Linddales pleaded guilty to a charge under s 8(1) of the Act. The culpability of Linddales was significantly less than that of the defendant. The only failure by Linddales was a failure to ensure the plant was safe. Moreover, Linddales was a first-time offender. On the other hand, not only did the defendant plead guilty to two charges constituted by multiple omissions to ensure the health and safety of workers on the site, but the defendant as principal contractor also had control of the site and direct supervision of the workers whose health and safety was placed at risk.

57 There is no basis upon which to suggest the penalty to be imposed on the defendant should be on par with that imposed on Linddales.

58 It is necessary to consider the principle of totality. The correct approach to sentencing in circumstances where the totality principle arises for consideration involves taking each of the offences and, having regard to all of the relevant circumstances including the objective and subjective factors, arriving at a separate penalty for each offence: Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 at [584]. It is then open to the sentencing judge to apply the totality principle, which requires consideration of the overall criminality involved in the offences and which requires that regard be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate: Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan [2001] NSWIRComm 106; (2001) 105 IR 181 at [37]. Once the totality principle had been applied it will then usually be appropriate to fix separate penalties for each offence.

59 In my opinion, having regard to how the charges were framed, the evidence in the proceedings and the Court's findings regarding the objective and subjective factors, there is no basis for distinguishing between the gravity of the two offences; they should attract the same penalty.

60 The maximum penalty in both cases is $825,000. It becomes a matter of determining where, given all of the circumstances, the penalties should be fixed on the scale of zero to the maximum.

61 For the offence committed against s 8(1) of the Act I consider that the appropriate penalty is $200,000. Given my view that the two offences should attract the same penalty, it follows that in relation to the offence under s 8(2) the penalty should also be $200,000.

62 As I observed in Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168 at [77]- [78] in relation to the predecessor provisions to ss 8(1) and (2):

[77] ... [U]nder the totality principle a defendant is not to be punished more than once for elements that are common to the offences and, as well, the aggregate sentence or penalty is to be just and appropriate having regard to the overall criminality involved. In a technical sense, s 15(1) and s 16(1) are constituted by different elements but the intention of both sections is the same, that is, to place obligations on employers to ensure the health and safety of persons where those persons are at the employer's place of work, and those obligations apply equally to employees and non-employees. It is arguable, therefore, that where two offences have been committed, one under s 15(1) and the other under s 16(1) and the offences are of the same level of seriousness so as to attract the same amount of penalty, that to do other than apply one penalty to both offences would be to breach the totality principle.

[78] On the other hand, if the defendant has breached its separate obligations to both employees and non-employees, it is arguable that applying the penalty for one offence to both offences would not reflect the overall criminality involved.

63 Accordingly, although there is a significant overlap between the elements of the respective offences, given the defendant breached its obligations to both employees and non-employees under provisions of a statute that create separate offences, an aggregate sentence of $200,000 would not properly reflect the overall criminality of the offences. In those circumstances, I have decided the offence under s 8(1) should attract a penalty of $150,000 and the offence under s 8(2) should attract the same penalty, making a total of $300,000.

Orders

64 The Court makes the following orders:

Matter No IRC 34 of 2007

(1) A verdict of guilty is entered and the defendant is convicted of the offence.

(2) The defendant is fined an amount of $150,000 with a moiety thereof to the prosecutor.

(3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

Matter No IRC 35 of 2007

(1) A verdict of guilty is entered and the defendant is convicted of the offence.

(2) The defendant is fined an amount of $150,000 with a moiety thereof to the prosecutor.

(3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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LAST UPDATED:
16 May 2008