Inspector Melissa Chaston v Sacco Builders Pty Ltd [2010] NSWIRComm 100 (27 July 2010)

Last Updated: 2 August 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Melissa Chaston v Sacco Builders Pty Ltd [2010] NSWIRComm 100



FILE NUMBER(S):
IRC929

HEARING DATE(S):
7 June 2010

DATE OF JUDGMENT:
27 July 2010

PARTIES:
Inspector Melissa Chaston (Prosecutor)
Sacco Builders Pty Ltd (Defendant)

CORAM:
Kavanagh J


CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(2) - sentencing - defendant charged arising out of workplace fatality - plea of guilty entered - defendant head contractor - sub-contractors on site - failures alleged to be failure to properly train and supervise - failure to establish proper supervision on evidence - defendant failed to ensure proper use of a harness by a young trainee when working at heights - serious offence established - general and specific deterrence - defendant's contribution to the risk was lower than sub-contractors on site - parity and consistency in sentencing - subjective factors - fine imposed - no order as to costs

LEGAL REPRESENTATIVES
Mr R Reitano of counsel (Prosecutor)
WorkCover Authority of New South Wales
Mr P M Skinner of counsel (Defendant)
Wight & Strickland, Solicitors

CASES CITED:
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464
Markarian v R [2005] HCA 25; (2005) 215 ALR 213
Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364
R v Gallagher (1991) 23 NSWLR 220
R v Holder (1983) 3 NSWLR 245
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J, 25 February 1994)
WorkCover Authority of NSW (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005


TEXTS CITED:




JUDGMENT:

- 18 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Kavanagh J

Tuesday 27 July 2010

Matter No IRC 929 of 2007

INSPECTOR MELISSA CHASTON v SACCO BUILDERS PTY LTD

Prosecution under s8(2) of the Occupational Health and Safety Act 2000

JUDGMENT

[2010] NSWIRComm 100

1 This prosecution is brought by Inspector Melissa Chaston of the WorkCover Authority of New South Wales against Sacco Builders Pty Ltd (the defendant) under s8(2) of the Occupational Health and Safety Act 2000 (the Act) by way of an amended Application for Order. It is alleged the defendant, Sacco Builders Pty Ltd, on 3 June 2005 contravened the Act in that it failed to:

Ensure that people other than its employees were not exposed to risks to their health or safety arising from the conduct of the defendant’s undertaking while they were at the defendant’s place of work contrary to section 8(2) of the Act.

In particular:

1. The defendant was, at all material times, an employer.

2. The defendant’s undertaking was as the principal contractor at the site.

3. The defendant’s place of work was at the site.

4. The defendant failed to ensure that people were adequately protected from falls from height by ensuring they wore harnesses that were properly affixed to prevent such falls.

2 The defendant pleads guilty to the charge.

3 Mr R Reitano of counsel, appeared for the prosecution and Mr P M Skinner of counsel, appeared for the defendant. The prosecution relied upon a Prosecutor's Statement of Facts (not agreed as certain paragraphs were in dispute), Clause 266 of the Regulation; Clause 271 of the Regulation; Mr Gallace’s OH&S Certificates; Operating and Maintenance Manual for the EWP; TestSafe Report dated 24 January 2006; Photographs of the EWP and Boom; Factual Inspection dated 20 June 2005; and Statement of Prior Convictions; Post-Mortem Report; Kaydee's Work Method Statement dated 3 March 2005 and SMC's Work Method Statement dated 11 March 2005.

4 The defendant relied upon an affidavit of Dino Sacco sworn 26 May 2010, Record of Interview with Mr Freeland, Mr Freeland's Police Statement, Record of Interview with Mr Cunningham, Mr Cunningham's Police Statement, Record of Interview with Mr Traini, Mr Traini Police Statement, and Sergeant Doherty's Statement.

5 The Prosecutor's Statement of Facts relevantly reads:

3. At all material times the defendant was an incorporated entity with its registered office located at Unit 20, 30 Heathcote Road, Moorebank, 2170 in the State of New South Wales.

4. The Parties

The defendant was the project manager at 29 Governor Macquarie Drive, Chipping Norton, NSW (“the site”). The defendant was contracted to construct fifty factory units at the site.

5. The defendant employed Dino Sacco. Dino Sacco was a director of the defendant. Dino Sacco was ultimately responsible for safety at the site on behalf of the defendant.

6. The defendant contracted Ronald John McGeoch through his business QA Site Control to be responsible for safety at the site. Mr McGeoch was contracted to prepare a site safety plan, review work methods of each sub-contractor on the site and carry out safety inspections during the construction. Mr McGeoch and Mr Sacco were both responsible for implementing the safety plan at the site.

7. The defendant engaged Dario Traini, sole director of Tri-Dar Constructions Pty Ltd as site foreman to supervise the construction of the fifty factory units at the site. Mr Traini was also responsible for implementation of the site safety plan at the site.

8. Mr Sacco and Mr Traini were to meet weekly to discuss issues including safety and to conduct inspections at the site. If any safety issues were raised at the site Mr McGeoch was to be contacted.

9. he defendant contracted Kaydee Engineering Pty Ltd (“Kaydee”) to supply and erect structural steel beams. Kaydee employed Simon Beddow as a Manager and his role at the site included quoting, liaising with the Kaydee supervisor in the workshop, visiting and attending site meetings and implementing the company occupational health and safety systems for the project at the site.

10. Simeon Alexander Haddad was the sole director of Kaydee and his role at the site included decision-making responsibilities for Kaydee in respect of supplying of and installing and erecting structural steel. Mr Haddad visited the site once or twice a week.

11. Kaydee contracted Sydney Metro Cranes Pty Ltd (“SMC”) to erect structural steel beams at the site and operation of a boom lift also known as an elevating work platform at the site. SMC commenced work at the site on 7 March 2005.

12. SMC employed Mark Gallace as a rigger and his normal duties involved assisting crane drivers slinging (tying the loads of material), directing the movement of the crane and tying the nuts and bolts for fixing steel members of a structure. Mark Gallace commenced employment with SMC on 29 April 2005. Mark Gallace was a trainee for the use of and operator of the elevating work platform. His training commenced on 29 April 2005. his training was “on the job” training. Robert Freeland was the Site Foreman and was the designated supervisor of Mark Gallace.

13. James Wilfred Cunningham was a director of SMC and was a supervisor at the site.

14. SMC contracted with Millennium Access Rentals Pty Ltd (“Millennium”) for the supply of a Haulotte Australia Pty Ltd boom lift also known as an EWP between 29 April 2005 to 3 June 2005 for use at the site (“EWP”).

15. On 3 June 2005, the work performed by SMC was the task of craning materials and fixing steel roof purlins into position at the site. Prior to the use of the boom lift, Mr Gallace carried out the daily safety check and routine maintenance on the boom lift, which was recorded and signed by Mr Gallace in the “EWP Safety Check and Routine Maintenance Log Book”. During the day Mr Gallace and Mr Freeland were tightening the bolts of the splice plates over the joints of the metal roof purlins, which were previously laid in position at roof level. This task was carried out from the platform of the boom lift at a height of approximately 7.7m above ground level. Works commenced in factory unit number 10 until there were two units remaining, namely, units numbers 1 and 3.

16. The Incident

Between 9.30am and 10.30am Mr Traini, was conducting the site rounds when he noticed Mr Gallace’s harness lanyard was not connected to the anchor point of the basket of the boom lift. Mr Traini advised Mr Cunningham immediately who then directed SMC employees to cease work and gather at ground level. Mr Cunningham verbally instructed the workers to attach the lanyard of the harnesses, whilst working from the platform of the boom lift.

17. Prior to lunch, Mr Gallace commenced work in unit number 1 and Mr Freeland worked in unit number 3, two-unit bays from Mr Gallace. Between approximately 12.30 and 1.00pm Mr Gallace went to lunch joined by Mr Freeland, Mr Cunningham and Mr Edward Cunningham, an employee of SMC.

18. Following lunch, Mr Gallace returned to unit 1 to continue tightening up the six bolts to each purlin at the roof level. He was working alone in the bucket of the EWP. The roof was about 7.7 metres from the ground.

19. The procedure for communication and rescue whilst persons such as Mr Gallace were working alone in the EWP was that Mr Cunningham would walk around every 10 or 15 mins to check on Mr Gallace and Mr Freeland. Mr Edward Cunningham stated that the emergency procedure for working on EWP’s was to hold the horn down or to yell.

20. Approximately 25 minutes after lunch, Mr Freeland who was about 11 metres away from Mr Gallace observed Mr Gallace’s hand resting on top of the purlin for about ten minutes when he heard Mr Cunningham call out.

21. Mr Cunningham saw Mr Gallace up in the EWP apparently stuck between a purlin and the EWP boom lift platform hand safety rail. The purlin was pressed against Mr Gallace’s chest area causing him to bend backwards over the basket of the boom lift. Mr Cunningham yelled at Mr Gallace to ask if he was all right but there was no response. Mr Cunningham saw that Mr Gallace had lost colour and was not moving. Mr Cunningham operated the boom lift from the ground controls to try and free Mr Gallace. As Mr Gallace released the EWP Mr Gallace tumbled to the ground. Mr Cunningham saw that Mr Gallace was wearing all his safety equipment and harness but he did not have the safety lanyard connected to the EWP. The safety lanyard was part of Mr Gallace’s harness.

22. After Mr Cunningham had partly lowered the boom to free Mr Gallace, Mr Freeland observed that the EWP was still up near the roof about 6 metres in the air but it had been turned off. Mr Freeland observed that Mr Gallace had his harness on and that the lanyard was attached to the back of Mr Gallace’s harness but that it was not clipped into the EWP.

23. Mr Gallace toppled over the boom lift platform hand safety rail to the ground. His harness lanyard was not connected to the anchor point of the basket of the boom lift.

24. Deleted.

25 Deleted.

26. The procedure of the task of tightening the bolts involved the person working from the platform of the EWP with the purlin at eyesight or above the head. From this position the operator is required to elevate the work platform using the “joy stick” basket controls to the roof level and position the work platform to a level adequate to carry out the task. The basket may be lowered with the same controls. An operator may use the basket controls to initiate travel movement, forward and backward in this position.

The EWP

27. The EWP had variable speeds. Section 3.2.3 High Speed travel of the Haulotte Pty Ltd Model HA18PX EWP Operating and Maintenance Manual describes that when the top jib of the EWP is raised above the horizontal the EWP should revert to low speed.

28. No fault or problem with the drive and speed functions of the boom lift were raised or reported by any person operating the boom lift, maintaining the boom lift or involved in the management of the site.

29. The defendants site safety plan dated December 2004 required that subcontractors provide a copy of their site safety plan and work method statement to the defendant prior to commencing work. They were also required to provide proof to the defendant that their employees have been instructed in the safe work statement.

The following bolded paragraphs (30 to 32 inclusive) are not entirely agreed – paragraphs 30 & 31 in part and all of paragraph 32. While the defendant indicates agreement to the facts per se, they do not agree that they are relevant to sentencing in this matter and reserve their right to make submissions accordingly.

30. Kaydee provided a work method statement dated 3 March 2005 to the defendant for structural steel erection (“Kaydee work method statement”). The Kaydee safe work method statement was reviewed by Mr McGeoch. The Kaydee work method statement did not incorporate any reference at all to risks associated with the operation of boom lifts under overhead structures or how such risks might be eliminated. . The Kaydee work method statement required that the work crew members use appropriate PPE, and a harness when working at heights. Annexed to this Statement of Facts is the Kaydee work method statement dated 3 March 2005.

31. SMC provided the defendant with a work method statement dated 11 March 2005 (“SMC work method statement”) for the activity of craning and fixing steel materials into position at the site. The SMC work method statement identified the procedure of “fixing steel members into position”, but failed to identify the safety risks and describe the control measures for the use and operation of a boom lift or EWP at the site. The SMC work method statement required that the workers “wear required PPE”. Annexed to this Statement of Facts is the SMC work method statement dated 11 March 2005.

32. Mr McGeoch considered that it was the responsibility of SMC to identify where an EWP was to be used on the site and to change the work method statement accordingly. There are no documented safe work methods for the operation of boom lifts or EWPs between the various employers at the site.

33. Mr McGeoch observed workers on the site using an EWP and who were not wearing safety harnesses. Mr McGeoch confronted those workers and instructed them to wear a harness and connect the harness to the EWP.

34. The procedure of the task of tightening the bolts involved the person working from the platform of the EWP with the purlin at eyesight or above the head. From this position the operator is required to elevate the work platform using the “joy stick” basket controls to the roof level and position the work platform to a level adequate to carry out the task. The basket may be lowered with the same controls. An operator may use the basket controls to initiate travel movement, forward and backward in this position.

The following bolded paragraphs (35 to 43 inclusive) are not entirely agreed – while the defendant indicates agreement to the facts per se, they do not agree that they are relevant to sentencing in this matter and reserve their right to make submissions accordingly.

35. Mr Gallace commenced on the job training in the operation and use of a boom type elevating work platform with a boom length of 11m or more on his first day of employment. The operation and use of a boom type elevating platform with a boom length of 11m or more is “Scheduled Work” in accordance with Clause 266 of the Occupational Health and Safety Regulation 2001 (“the Regulator”). A copy of clause 266 of the Regulation is attachment “(1)”. Mr Gallace did not hold a certification to operate an elevated work platform like the one used at the site.

36. Mr Traini undertook the site-specific induction of Mr Gallace at the site but Mr Gallace was not inducted into the SMC safe work method statement. Mr Gallace was not inducted into a safe work procedure for the fixing of structural steel prior to the incident.

37. James Wilfred Cunningham was the “Responsible Person” for Mr Gallace as a trainee for the scheduled work, in the operation and use of a boom lift with a boom length of 11m or more. Mr Cunningham designated the SMC site foreman, Mr Freeland, as the supervisor for Mr Gallace as a trainee. The supervision of Mr Gallace as a trainee alternated between Mr Cunningham and Mr Freeland.

38. Mr Freeland as the “designated supervisor” was required to hold a certificate of competency in the use and operation of a boom lift. Mr Freeland could not produce a certificate of competency. No record was found in WorkCover’s Information System that revealed Mr Freeland held such a certificate.

39. Direct supervision generally means that the trainee is within sight and sound of the person supervising the work and the supervisor is in a position to directly intervene in the event of unsafe operation of the equipment in accordance with Clause 271 of the Regulation. A copy of clause 271 is attachment “2”.

...

41. Sacco had a site plant register but did not ensure that the workers on the site were properly qualified and competent to operate plant including the EWP (that is, Sacco did not require the workers to produce relevant certificates before allowing the workers to operate plant at the site).

42. Mr Freeland did not instruct Mr Gallace on the operation of the EWP. Mr Freeland relied on his own observations to come to a view that Mr Gallace was competent to operate the EWP and did not enure that Mr Gallace was properly instructed in the operation of the EWP.

...

44. No fault or problem with the drive and speed functions of the boom lift were raised or reported by any person operating the boom lift, maintaining the boom lift or involved in the management of the site.

45. The defendant co-operated with WorkCover in its investigations.

46. The defendant has no prior convictions.

6 Mr Skinner objected to the paragraphs in the prosecutor's Statement of Fact encapsulated above in bold. Generally, he objected as to relevance. The first paragraphs objected to [30]-[32], related to the roles played on this worksite by the sub-contractors. The statements generally outlined the evidence of existing site safety plans of the sub-contractors and included some commentary as to what those plans did not contain. I allowed their tender. Paragraphs [35]-[42], also objected to, generally addressed the role of the supervisors of the various sub-contractors on site. I allowed their inclusion. Paragraphs [40] and [43] were struck out as not relevant to the Court's inquiry.

7 The Court found relevant the information within the paragraphs objected to especially to assist in understanding the work methods for the particular task and the line of authority on site.

8 To determine penalty, the Court has to weigh the contribution to the risk to safety by the defendant on a building site occupied by many sub-contractors all or some of whom could have contributed to the identified risk. Such a determination must be made in the context of the role played on this building site by the principal contractor (the defendant) along with the sub-contractors on site. I found generally the paragraphs objected to were relevant to the Court's assessment of the objective seriousness of the offence and the contribution to risk which considerations affect the consideration of penalty for the plea of guilty.

Relevant Principles
9 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213 and their Honours’ view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23 and 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the “instinctive synthesis” approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

10 Their Honours recognised the “instinctive synthesis” approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a “staged sentencing process” starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]).

11 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this “instinctive synthesis” approach to sentencing saying at [57]:

[57] The instinctive synthesis approach is the correct general approach to

sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such element ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.

12 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. Of relevance particularly is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999.

Consideration
13 In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464 (at 474):

In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ...

And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]:

In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ...

14 Some matters arise from the evidence which make the assessment of the objective seriousness of this offence difficult. The defendant pleads guilty to the failure to ensure the safety, in particular the safety of a trainee employee of Sydney Metro Crane (SMC) (one of the sub-contractors on its worksite). The trainee was working on the defendant's worksite and was wearing the appropriate safety equipment (specifically a safety harness), which was not, the circumstances revealed, attached to the boom lift platform on which the trainee was required to work. The prosecution particularised to the defendant that it relied upon the defendant's failure to ensure safety through its failure to ensure there was proper training and supervision of Mr Gallace, the deceased trainee.

15 It is relevant to the assessment of the seriousness of the offence that during work that morning, it was brought to the attention of Mr Cunningham (a supervisor of the sub-contractor, SMC, the crane supplier on site) that Mr Gallace (the deceased) was working on the platform of the boom lift without attaching his lanyard. This warning was given by Mr Traini, who was employed by the defendant and responsible, on behalf of the defendant, for site safety.

16 Work for all the SMC employees was stopped by Mr Cunningham and all SMC employees, including the deceased, were re-instructed as to the safety features as well as the need to attach their harnesses. The defendant, as principal contractor on site, therefore did implement its safe work programme and adhered to its responsibility as a supervisor to ensure employees were reminded as to the safe use of all equipment.

17 Mr Gallace was a trainee with five weeks on the job for SMC. After the lunch break, that is, after the warning had been issued, he was raising up the platform of the crane lift to reach his task as a rigger to bolt in the overhead steel members of the roof structure. Approximately 25 minutes after work resumed, Mr Gallace was sighted by Mr Freeland of SMC (his direct supervisor on site) who was working some 11 metres away. Mr Freeland noticed Mr Gallace's hand was resting in the same place on the top of the platform and he realised the hand had been in the same place for about 10 minutes. At the same time, Mr Cunningham, from the ground, noticed Mr Gallace's body pressed between the steel member on the roof and the hand-rail of the EWP's basked. Mr Gallace's body appeared to be bent backwards over the basket. Mr Cunningham swiftly reached to release the crane platform by lowering the boom lift. On release to lower the lift, Mr Gallace then fell some 7.7 metres to the ground from the basket.

18 Mr Gallace was, on examination, deceased.

19 Consideration must be given to two reports placed by before the court. Expert mechanical/machinery evidence revealed after examination of the EWP machine after the incident:

4. COMMENTS AND CONCLUSIONS

It is difficult to determine what occurred in the incident that caused the death of Mr Mark Gallace while using the subject Haulotte HA18PXEWP. In assessing the operation of this EWP it was noted that the machine was quite jerky to operate and had significant delays in terms of the time for the control imports to relay to actual movement of the machine operating systems. This may have played a part in the incident.

The biggest issue with this particular machine however was the fact that there was a fault in the safety drive speed over-ride system that should switch the machine to slow speed when the booms are raised past the nominated positions, as per the Haulotte Operating and Maintenance Manual. This fault meant that the speed of the machine did not change from that selected manually, so the machine could operate in high speed at times when this should not have occurred. It was found that when the machine was delivered to TestSafe Australia, the machine traveled in high speed with the booms orientated in positions stimulating the orientation noted from photos provided of the incident site.

It is possible that the EWP was being moved (driven) by the deceased at the time of the incident, and he was caught unaware of the distance that would be traveled by the machine with it being in high speed mode rather than low speed mode, which he may have expected. The delay in response of the controls and the ramping down of the drive movement over a couple of seconds may have exacerbated this situation.

Examination of the microswitch that operates the safety speed selection showed that it was out of adjustment, as it was located with its securing screws at the bottom of their mounting slots, and did not always operate correctly when the upper boom was raised. The securing screws for the microswitch were found to be tight when checked, so it is not likely that the switch mounting bolts had merely come loose during use. It was evident when testing occurred at TestSafe Australia that the boom could be raised significantly and the machine driven at high speeds regardless of the drive speed switch position.

20 The following comment was made in the expert's report which sums up the circumstances:

"the machine was not switching to slow speed when it should".

21 The second report of note is the Post Mortem Report which states:

The autopsy revealed a fracture of the base of the skull consistent with the application of a side-to-side compressive force to the head. The presence of severe congestion of the head, face, neck and upper chest together with numerous pinpoint hemorrhages in the eyes (petechiae) was consistent with compressive/traumatic asphyxia.

There was no evidence of pre-existing natural disease.

In my opinion death was due to the combined effects of head injury and asphyxia.

22 The defendant contends because of the description by Mr Freeland and Mr Cunningham as to their sighting of Mr Gallace before the lowering of the boom crane, read with the post mortem findings, the Court must make a finding as to when the death occurred in order to fairly assess the objective seriousness of the offence. The defendant submits, if the trainee was deceased before Mr Cunningham lowered the boom, then in the normal course of events, the degree of risk of a fall 7.7 metres was minimal. Reliance is placed on evidence the platform basket was of sturdy construction, generous in proportion and it had high hand rails all round to protect an employee from a fall.

23 Whether Mr Gallace was deceased prior to striking the ground from the crush injury he suffered after being wedged between the EWP platform and the steel roof beam, or as a combined result of that injury plus the force of the fall, is open to conjecture.

24 I am satisfied Mr Gallace suffered a major compressive injury which could have caused the death prior to his fall. However, it is a fact a fall from 7.7 metres can cause serious injury or death. The risk identified by the prosecutor is the failure of the defendant to ensure the trainee was properly trained and supervised so he was not exposed to the risk of falling from a great height. It is therefore unnecessary for the Court to express a finding as to the cause of death. The breach pleaded is the failure to ensure safe working at a height by the failure to ensure the attachment of a trainee's harness to protect the trainee against falling from that height.

25 As to the obligation on the defendant to ensure "training", the Occupational Health and Safety regulations require:

271 Exception for trainees

(1) A trainee may do any kind of scheduled work to which a recognised course of training in which the trainee is engaged relates if the person:

(a) does the work under the supervision of a supervisor, and

(b) keeps and maintains a record of training in accordance with the requirements of clause 275.

(2) For the purposes of this clause, a course of training is recognised in relation to a person if, when the person began the course, the course was recognised by the guidelines issued by WorkCover in relation to the training of trainees.

And:

278 Standards of competency

(1) A person is competent to do a particular kind of scheduled work if the person’s competency to do the work is of a standard equal to or better than the appropriate competency standard.

(2) (Repealed)

(3) For the purposes of this Chapter, the appropriate competency standard for scheduled work involving the operation or use of a loadshifting machine is:

(a) the standard of competency set out in the National Competency Guidelines in relation to that work, or

(b) any other standard of competency that WorkCover considers to be equivalent to that standard.

(4) For the purposes of this Chapter, the appropriate competency standard for work that involves the application of pesticides or the use of fumigants is the standard of competency set out in relation to that work in the National Standard for Licensing Pest Management Technicians.

26 Relevant to the training element of the charge relied upon by the prosecutor, the defendant, on 27 May (less than a week earlier) had, on site, given a one and a half hour safety training course to all the on-site employees of this sub-contractor, including Mr Gallace. As noted on the record, they were instructed on the following matters:

1. Wearing of harness while operating EWP machine;

2. Only using leads that are tagged;

3. Keeping electrical cords off the ground;

4. Wearing of hard hats on the site;

5. Not removing hand rails; and

6. Complying with site regulations.

27 The defendant also took significant steps to ensure there were site-safety specific plans on site filed by all sub-contractors on site. The defendant's policies specifically addressed the need to ensure all persons on the defendant's building site were properly trained. Further, the defendant played a similar role in the safety training of all on its work site. For example, it was the defendant's supervisor, Mr Traini, who identified the harness breach on its worksite which led to Mr Gallace's employer re-instructing all its employees. I accept through Mr Sacco, Mr McGeoch and Mr Traini, the defendant had in place a comprehensive system of ensuring all site safety documents were collated, including: workers conducting safety checks; insuring safety instructions; conduct of tool box talks; the preparation of safety reports. I accept the defendant was active on its worksite in ensuring employees on its site were properly trained.

28 Nonetheless, the evidence does raise the question as to the appropriate supervision on its worksite. The supervisor of the deceased trainee, Mr Freeland, was not properly qualified to supervise a young employee in accordance with the relevant standard. The defendant failed to ensure he was qualified. The defendant's supervisors were not on site at the time of the incident. The employee's supervisors were working a distance away. Mr Cunningham only walked past the trainee at work every 10 to 15 minutes. Mr Gallace had been back at work after lunch for 25 minutes before he was sighted by either Mr Cunningham or Mr Freeland, his supervisors.

29 In the circumstances, there was a failure by the defendant to ensure a trainee employee working at a height was fully supervised. There was therefore a failure by this head contractor to so ensure.

30 The foreseeability of a breach of the Act can reflect on the seriousness of the breach. I accept in the circumstance, as to Mr Gallace's training, there could be no foreseeable element to the defendant's breach. Its site plan as to safety training was followed on site. The supervision provided on site by the defendant however, should have been more rigorous. I accept, in the failure to ensure a trainee was properly supervised, there was an element of foreseeability to the offence which makes it a more serious offence.

31 The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence (WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were obvious steps that could have been taken which, either singly or in combination, would have eliminated or reduced the risk. Mr Sacco has redefined the systems to check on supervision and ensure his corporation identifies the training of all personnel on its worksite and that there is, at all times, on its worksite a supervisor present. These steps have now been implemented. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practical before the incident.

32 The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendant (Lawrence Diecasting Limited and WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of an employee working at heights whose harness remained unattached, could fall from a height of 7.7 metres. I reject the submission that because the basket and handrails of the platform were in good order it could be held to be a minor offence. There was a possibility of a 7.7 metre fall by any employee who did not have his/her harness attached.

33 Further, in the matter of WorkCover Authority of NSW (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313, Walton J, Vice-President, addressed the concept of the vulnerability to danger of young persons present in a workplace. His Honour stated:

52 Rather than reducing the culpability of the defendant, in my view, these considerations as to the vulnerability of students amply demonstrate the increased vigilance and awareness of risks to safety that is demanded of an employer where young people are to be present in a workplace. Young people require a higher level of protection. Those with responsibilities to supervise ... have an essential duty to ensure that risks to safety are eliminated, particularly where highly dangerous machinery is in use. In McDonald's, for example, the Court stated that (at 452):

The defendants conduct a very large enterprise operating throughout New South Wales and a variety of potentially dangerous equipment is used in their restaurants. The defendants identified that their enterprise involved the employment of a large number of young persons, such as the deceased, with little or no previous work experience. In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations.

34 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71]-[77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]:

... 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.

35 The defendant continues to operate in the building industry, although Mr Sacco relies on the fact that at present there is a downturn in the turnover of all companies including his operating in this industry. However, while still engaged in this industrially dangerous occupation, the corporation must carry an element of specific deterrence in its penalty. A rigorous approach is needed in the construction industry by all employers conducting what is dangerous, but industrially necessary, work. Each principal contractor has responsibility to ensure safe working by all its sub-contractors on its worksite. The facts lay bare the complications of a modern construction worksite. On site were a number of skilled companies performing different tasks - all of which have to be carefully overseen and co-ordinated. The defendant was the head contractor on site. It was responsible for ensuring all sub-contractors on site fully complied with their training and supervisory obligations. Here a young, inexperienced employee was not properly supervised by his employer or the head contractor. An element of general deterrence to the industry is also necessary in the consideration as to penalty for this breach.

36 Regard must be had to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]:

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).

Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" (R v Gallagher (1991) 23 NSWLR 220 (at 228)).

37 A plea of guilty was entered at the earliest stage of these amended proceedings (R v Thomson; R v Houlton (2000) 49 NSWLR 383). The defendant is therefore entitled to a discount of 25 percent for the utilitarian value of its early plea of guilty. The defendant fully co-operated with WorkCover Authority throughout the investigation of the incident.

38 The defendant's subjective circumstances, given the long period of time since the incident and given the history of this prosecution, it was submitted should weigh in its favour in mitigation as to penalty. The Amended Summons comes before this Court in a curious manner. Evidence before the Court revealed the Amended Summons arose in settlement of an appeal filed in the Court of Appeal by the defendant against a judgment of the Full Bench of the Industrial Court against its interest. The defendant had been prosecuted and found guilty at first instance. An appeal to the Full Bench was rejected.

39 The Registrar of the Court of Appeal, by agreement between the WorkCover Authority and the defendant on the application of both parties to the prosecution, gave the following orders (by consent) in accordance with s 36.1A of the Uniform Civil Procedure Rules 2005:

1 An order in the nature of certiorari calling up the judgment dated 18 September 2009 of the First Respondent constituted as a Full Bench, in proceedings numbered IRC 1468 of 2008 and quashing it.

2 An order in the nature of certiorari calling up the judgment dated 15 August 2008 of the First Respondent constituted by Backman J, in proceedings numbered IRC 929 of 2007 an quashing it.

3 An order that these proceedings be remitted to the First Respondent to deal in accordance with law with the charge in proceedings numbered IRC 929 of 2007 on the basis that it is noted that:

(i) the Second Respondent undertakes and acknowledges that in any rehearing by the First Respondent no evidence will be offered by the prosecution in respect of particulars 4, 5 and 6 in the Application for Order filed with the First Respondent on 30 May 2007 by which proceedings were commenced against the Applicant and that particulars 4, 5 and 6 will not be pressed against the applicant;

(ii) the defendant (the applicant in these proceedings) undertakes and acknowledges that in any rehearing by the First Respondent, it will adhere to its plea of guilty - in respect of particulars 1, 2, 3 and 7 of the charge as pleaded in the Application for Order.

4 No order as to costs.

No reasons were given by the Registrar for the Orders.

40 The Registrar's decision has not been appealed (s 121(3) of the Supreme Court Act 1970). No reason has been given by the prosecutor for the agreement reached to set aside the charge from which a conviction had been entered and to enter an amended summons to a lesser charge. It is relevant to note the Industrial Court had entered a submitting appearance on appeal and was present when the Registrar gave his consent orders.

41 The defendant submits, in the interests of justice, given the delay and the nature of the lesser charge, an order under s 10, or s 10A (in the alternative), is appropriate. Any delay in the consideration of this matter is a reflection of the defendant's action. Further, I perceive this offence as a serious breach of the Act in the defendant's failure to properly supervise its worksite. Therefore, I do not accept the circumstances are such as to attract the application of s 10 of the Crimes (Sentencing Procedure) Act 1999.

42 It was submitted the principle of double jeopardy should apply with real force to this prosecution (see R v Holder (1983) 3 NSWLR 245). The principle of double jeopardy is not applicable to the above circumstance where it was not the Crown who took the appeal and where the Crown has accepted a plea of guilty to a lesser charge (for whatever reason) especially in a circumstance where there have been two convictions entered prior to the agreement.

43 There was, however, on the evidence before me, a significant contribution to the risk to safety on this worksite by the sub-contractors on site. The defendant informs the Court, Kaydee, who had sub-contracted to SMC to perform the task of the erection of the steel beams and to operate the boom lift known as the elevated work platform, was prosecuted and sentenced. Kaydee pleaded guilty to one offence through a number of particulars and was sentenced to a penalty of $180,000. The sub-contractor, SMC, the employer of the deceased employee, was no longer a company in business so was not prosecuted. The defendant's contribution to the risk, I am satisfied, was lower than that of Mr Gallace's employer, SMC and of Kaydee. However, the defendant failed to ensure there was on its worksite the proper use of a harness by a young trainee when working at heights. The defendant failed to properly supervise a dangerous task performed on its work site.

44 The defendant does not present evidence of pecuniary difficulty but suggests because of the downturn in the building industry its financial status has been dramatically affected. The company's financial returns that are before me shows a significant turnover and income for the corporation over the years. The corporation remains in the development and building business even though there is a downturn at present. It has operated for many years successfully. It has provided employment in NSW for those many years to a significant number of people. That is to its credit.

45 The defendant has expressed its contrition and it provided assistance to the deceased's family.

46 I take into account mitigating factors and that the defendant was aware of and active in the implementation of its obligations under the Act for site safety. This was, however, such a basic breach of the obligations of an employer on its work site. A young man was working at height without the defendant, on its work site, ensuring he was properly supervised. His safety harness was unattached. He fell 7.7 metres to the ground at its work site. This was a serious offence.

47 I find the defendant guilty.

48 The defendant is fined in the sum of $80,000 with a moiety to the WorkCover Authority.

49 By agreement, there shall be no order as to costs.

Orders
50 For all the above reasons, I make the following orders:

1. In Matter No IRC929 of 2007, I find the defendant guilty of the offence as charged.

2. The defendant is fined in the sum of $80,000 with a moiety to WorkCover Authority of New South Wales.

3. There shall be no order as to costs.



LAST UPDATED:
27 July 2010