Inspector Patton v Hall and Quinn [2010] NSWIRComm 6 (1 February 2010)

Last Updated: 23 February 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Patton v Hall and Quinn [2010] NSWIRComm 6



FILE NUMBER(S):
IRC 1942 and 1943

HEARING DATE(S):
10 December 2009

DATE OF JUDGMENT:
1 February 2010

PARTIES:
Inspector John Patton (Prosecutor)
Peter Hall (Defendant in IRC 2008/1942)
Jonathan Quinn (Defendant in IRC 2008/1943)


CORAM:
Haylen J


CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(2), s 26(1) - pleas of guilty entered by directors of failed building company - both directors undischarged bankrupts with limited present financial means - serious breach - fall of sub-contractor from scaffolding - career ending injuries received - scaffold adjusted by unqualified tradesman to suit progress of work - scaffolding left in dangerous state - lack of adequate supervision - inadequate information, training and supervision - no risk assessment undertaken - risk foreseeable and readily able to be addressed - general and specific deterrence - subjective factors considered - first offenders - early plea of guilty - no present capacity to pay significant fine - fine reduced - costs adjusted so as not to be disproportionate to fine

LEGAL REPRESENTATIVES

Mr C Magee of Counsel
WorkCover Authority of New South Wales

Mr Hall in person (First Defendant)
Ms Grindlay of counsel (Second Defendant)
Michael Saunders & Associates



CASES CITED:
Inspector Batty v Brian John Goldsmith [2009] NSWIRComm 72
National Parks and Wildlife Service and anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573.
Philip Morris Inc and anor v Adam P Brown Male Fashions Pty Ltd and ors [1981] HCA 7; (1981) 148 CLR 457
WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR I87
WorkCover Authority of NSW v Anywhere Tower Cranes Pty Ltd and ors (20070 NSWIRComm 44

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, S 21a(3)(I)
Fines Act 1996
Occupational Health and Safety Act 2000 s 8(2), 26(1)


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: HAYLEN J

Monday, 1 February 2010

MATTER NO IRC 1942 of 2008
INSPECTOR JOHN PATTON v PETER HALL
Prosecution under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000

MATTER No IRC 1943 of 2008
INSPECTOR JOHN PATTON v JONATHAN QUINN
Prosecution under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000

JUDGMENT
[2009] NSWIRComm 6

1 Mr Peter Hall and Mr Jonathan Quinn have both pleaded guilty to separate charges brought by Inspector Patton alleging a breach of s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26(1) of that Act. Mr Quinn and Mr Hall were directors of Gerob Investments Ballina "(Gerob"), trading as Beach Life Homes, being a company with its registered office located in Lismore. In May 2007 the company ceased trading due to insufficient funds and an administrator was appointed. The company was placed into liquidation in early June 2007.

2 The company undertook residential construction work and on 11 October 2006 the company was the principal builder/contractor at a construction site located at Hillcrest Avenue, Goonellabah, a site not far from Lismore. The company was building a residential dwelling on this site. The company had engaged Mr Ian Compton to undertake carpentry work at the site. On this day, Mr Compton sustained injuries after falling approximately 2.5 metres from a scaffold erected around the building. Mr Compton received serious injuries in the fall, including head injuries, fractured ribs, lung contusion and a fractured spine. Mr Compton remained in hospital for more than three weeks, including two weeks at a Brisbane Hospital where he underwent surgery relating to a spinal fusion. Mr Compton's disabilities continued and he has been unable to work since the accident and was unlikely to be able to work again.

3 In relation to each defendant, an Amended Application for Order particularised the alleged offence in identical terms. The particulars of each offence were as follows:

(a) at all material times the defendant was a director of the corporation;

(b) the corporation failed to ensure that persons working on or egressing or accessing scaffolding at the site were not exposed to the risk of falling through or from the scaffolding;

(c) the corporation failed to adequately supervise or enforce its system of work or procedure for making or requesting modifications to scaffolding;

(d) the corporation failed to provide a safe system of work with respect to work at heights in that the corporation failed to ensure that scaffolding used by persons at the site was safe in that it failed to ensure all necessary components of the scaffolding were properly in place;

(e) the corporation failed to provide adequate information, instruction, training and supervision to persons undertaking work at the site in relation to the use of and/or modification of scaffolding;

(f) the corporation failed to undertake and implement any or any adequate risk assessment in relation to the performance of work at heights at the site;

As a result of the corporation's failures non-employees, in particular Ian Compton, were placed at risk of injury.

4 In each case, the prosecution evidence comprised of the following:

(a) an Agreed Statement of Facts (substantially identical in both matters);

(b) a number of annexures, being: 18 coloured photographs; a factual inspection report; a Prohibition Notice dated 11 October 2006; an Improvement Notice dated 28 February 2007; 7 coloured photographs taken by Ballina Scaffolding Service on 31 July 2006 at the time of handover; an extract from AS/NZS 4576:1995 "Guidelines for Scaffolding", being paras 12.1 to 13.3; an undated copy of Beach Life Homes Handbook, ed 2; and, a Prior Convictions Certificate in each case showing that each defendant had no relevant prior convictions;

(c) a Victim's Impact Statement prepared by Mr Compton (conditionally admitted although admitted for all purposes when the Court was satisfied that a breach had been committed by each of the defendants).

The Agreed Statement of Facts appears as an annexure to this judgment.

5 In his Victim's Impact Statement, Mr Compton spoke of working as a carpenter in the building industry for 47 years until the date of this accident at the building site. Mr Compton did not recall the circumstances of his accident except that he was standing on some scaffolding approximately 3 metres from the ground and was measuring for the attachment of sheeting. On arrival at hospital he was found to be suffering from injuries to the head, a number of fractured ribs, lung contusion and a fractured spine. He was stabilised at Lismore Base Hospital and then transferred to Princess Alexandra Hospital in Brisbane. In Brisbane an orthopaedic surgeon performed a spinal fusion procedure with the assistance of rods from T6 - T11. He remained an in-patient in Brisbane for two weeks, was then returned to Lismore Base Hospital where he stayed another eight days before being discharged. After the accident, his wife had to drive him to Ballina Hospital every eight weeks for physiotherapy.

6 Mr Compton spoke about exercising in his swimming pool to try to keep walking and to stay active so that his muscles did not begin to waste. He was used to being a fit and strong person and so the weakness and general ill health he had experienced since the accident was described as being "incredibly disheartening". His wife had suffered from depression since the accident and had taken much more responsibility around the house and in their everyday lives. Mr Compton was required to have an x-ray every 12 months to ensure that his spine was stable and the rod was in position. Every six weeks his wife drove him to see a general practitioner for a check-up.

7 Mr Compton listed the following continuing disabilities: an inability to stand for longer than an hour to one and a half hours; an inability to walk for long periods; unable to sit for longer than 30 minutes; unable to bend, squat or reach; cannot lift or carry objects weighing more than 2kgs; unable to turn his head to the right side without severe pain; cannot drive due to numbness in his right leg and his wife needs to drive him everywhere; he can no longer play golf, hockey, tennis and soccer all of which he enjoyed playing before the injuries; he cannot play outside with his grand children or pick them up; he cannot undertake his hobbies, including ceramic moulding; he struggles to get upright and stand up from his bed, the toilet and most sitting positions; he struggles to dress and undress himself and often has pain when attempting to do so; he has a severely reduced sexual function and cannot engage in sexual intercourse; he had reduced urinary and bowel function; he takes pain medication on a regular basis; he often needs crutches for stability to walk and mobilise himself; he has constant pain in his thoracic spine which varies in intensity and his lower thoracic spine can be very sensitive and his pain is increased especially if he coughs or sneezes; and, he has pins and needles in his right leg radiating to his foot and as far as his foot. On occasions when he has tried "to do a lot" in a week, he will often suffer two to three days of severe pain being so sharp that it feels like a knife being inserted in the right side of his back. During such times he uses his crutches for support and every couple of hours takes over-the-counter pain medication such as Panadol. Since the accident he has been diagnosed as suffering from a significant "closed head injury". That injury causes him to struggle to manage his financial and personal affairs such as banking or business related expenses. Mr Compton says he suffers from both cognitive and memory impairments and that specialist medical opinion was that he was not likely to recover from those impairments. As a result of the injuries received, he now suffers depression and has been very irritable and withdrawn but only since the accident. The loss of his way of life as it existed before the accident, including the loss of his job, was very upsetting for him. The constant pain he had suffered caused him anguish and despair and he now takes further medication to treat his condition. When Mr Compton was injured he was aged 62 years but he was very fit and had suffered no previous injuries. He enjoyed his work very much and worked with a good crew and felt that he would have carried on working past 65 years of age. He had now been advised that he would never be able to work again.

8 Mr Compton mentioned numerous domestic tasks that he had once undertaken but was no longer able to perform. He and his wife lived on a 5 acre properly that required extensive maintenance, including mowing with a tractor. Mr Compton is unable to do mowing on the tractor without pain and since late 2008 a person has been engaged to perform this work fortnightly. He has not been able to trim the trees and perform mulching on his property which is required every few months and occupies approximately three hours. His wife now performs this work. Mr Compton also relies on his wife for transport as he is unable to drive. Since the accident he is unable to wash, clean and vacuum the car because he cannot manoeuvre himself in confined and awkward spaces. Previously he shared house duties with his wife but he is now restricted to sweeping floors and washing and drying dishes. He could no longer wash the house windows. Three years prior to the accident a pool had been installed at their home and he had anticipated being able to build a deck for the pool in his spare time. As he is no longer able to do carpentry work, the deck remains unfinished. Mr Compton also performed all the pool maintenance but this is now done by his son. The pool is required to be cleaned regularly because he uses it for physiotherapy exercises. At the time he was injured, the family home was in the course of being renovated. Mr Compton and his wife had built the home 23 years earlier with the intention of slowly building it into their family home. This was work he was to perform in order to save costs and finishing the home was intended to be a retirement project but because of the extent of his injuries, he was now unable to complete the work including work surrounding the barbeque area, work in the main bathroom and various other works around the house. Family members have performed part of the work and the extent of the renovations is such that Mr Compton and his wife cannot afford tradesmen. He referred to being greatly upset by the house being left in an unfinished state and not being able to enjoy it in his retirement as he had planned. He was also unable to assist in home renovations for one of his sons whereas he had been able to give such assistance to another son. Mr Compton spoke about his fitness and his ability as a builder/carpenter to lift up to 50 kgs above shoulder height, to stand and walk for long periods, to bend and squat and carry objects over uneven ground but they were tasks he was no longer capable of performing. He was certain he would not be able to return to that level of work capacity because of the extent of his injuries and as he was now 65 years old he would never be able to retrain in different employment, having performed no other work during his lifetime. The Court considers it appropriate to receive and to take into account Mr Compton's Victim's Impact Statement as evidence of the harm caused by the offence.

9 In his case, Mr Quinn relied upon his sworn affidavit which indicated that he was now 40 years old, married with three children aged 10, 6 and 8 weeks. Mr Quinn had graduated in 1992 with a Bachelor of Engineering from Sydney University and although holding a contract licence from 2004 to 2008, he had not entered into any contracts as a builder under this licence. He practised as an engineer until 2003 and was then employed by Gerob. In July 2003 he completed a supervisor's certificate and went on to complete a builder's licence in 2004. In August 2003, the previous owner of the company offered it for sale. Mr Hall, who had been with the company for seven years, and Mr Quinn agreed to purchase the company and they both became directors.

10 Mr Quinn described himself as having an "exemplary safety record" and had not received any notices or fines. He completed his Green Card and Aon risk management in 1997 and had completed a further occupational health and safety induction in January 2007. In 2003, he joined the Housing Industry Association. Occupational health and safety legislative updates and requirements were periodically sent to him and the company. Where these were applicable to the company's work they were implemented by having a copy of the memorandum electronically sent to staff and every fortnight printed copies were attached to the sub-contractor's slip. The 2007 induction was undertaken on a safety consultant's recommendation that Mr Quinn, Mr Hall and all persons likely to be on site should have or renew that qualification. The company had developed a safety manual and it was updated. A safety consultant had been retained and that continued under the new ownership. Following legislative changes in 2007, a compliance order and update was undertaken and the updates were under way at the time of Mr Compton's accident.

11 In August 2003, Mr Quinn and Mr Hall became directors of Gerob, trading as Beach Life Homes. By this time the company had been constructing houses for some 32 years. In his role as director and company Secretary, Mr Quinn was responsible for engineering issues concerning housing and he also conducted daily financial duties with the company's financial manager (an accountant) including payroll, GST, tax returns, banking and contract administration. On occasions, he would visit sites if there was an issue where his engineering training could assist. Typically, this would occur at least once during construction and approximately once or twice per month. The major contractors remained the same prior to and following his involvement with Gerob. Other sub-contractors would approach the building supervisors on site or through industry acquaintances and may be engaged depending on the particular construction. The details of such sub-contractors, including their insurances, work method statements and contacts would be gathered by the company's client services officer who would collate and file all this material.

12 Mr Quinn regarded the company as having a good safety record. There was a safe system of work in place, including a safety manual and work method statements operating in accordance with the HIA and Master Builders' Association requirements. For example, on-site training and safety induction and certification, particularly for site personnel, was conducted. At about the time of the incident the company employed 11 people with two building supervisors on site (but travelling from site to site) a construction co-ordinator based mostly in the office co-ordinating contractors, Mr Quinn as an engineer, a financial manager, three client service officers, two sales persons, an estimator, a draughtsperson and Mr Peter Hall as the managing director. Mr Quinn said that the sites were generally of a similar nature regarding inherent and well-known dangers in the construction of houses. Some sites had particular requirements such as two-storey houses requiring scaffold or single-storey houses requiring roof rail protection and these matters were addressed prior to commencement of construction. Up to ten houses could be worked on at any one time with up to ten being completed in any nine to twelve-month period and a new construction commencing on the completion of each home. The company had engaged Ballina Scaffold to provide their services at the Hillcrest Avenue site. Ballina Scaffold had been engaged by the company for many years and had been used on other projects prior to Mr Quinn's involvement with the company. Generally, Ballina Scaffold provided all scaffolding on the houses constructed by the company and numerous specialist sub-contractors conducted construction. The company did not directly employ building workers and there had been no incidents involving scaffolding on other sites.

13 Upon learning of Mr Compton's fall, Mr Quinn and the contracts co-ordinator went to the site to investigate the accident. The scaffold was barricaded with safety tape and a notice of this action was sent to all sub-contractors while construction supervisors were also instructed to so advise sub-contractors. At the time the company had conducted several site safety compliance checks and was updating its documentation but the accident occurred before this task was completed. The company continued to operate until May 2007 but specific warnings were now given about unauthorised scaffolding alterations. Thereafter, the construction safety manual became site-specific.

14 As to his present circumstances, Mr Quinn said he was unemployed and he did not build for anyone nor did he supervise any building. He had returned his building licence but was performing engineering consulting work where he could find it. He did not engage engineers in employment but remained a member of the Institute of Engineers. In relation to his financial circumstances, Mr Quinn said he was declared bankrupt in July 2008 and he provided evidence as to his bankruptcy. In relation to his assets, he said that he lived with his family in a house worth $510,000 which he owned jointly with his wife prior to his bankruptcy. The house was now owned by his wife. His wife had a mortgage of $483,000 in relation to this property. Mr Quinn said he had no other assets or a car, insurance policies or other bank accounts. He gave a breakdown of his monthly expenditure being in excess of $5,700 and stated that he had not been required to make contributions to the Trustee in Bankruptcy due to his low income and because he had three young children. He had no other liabilities except for a periodic payment for legal fees associated with defending this prosecution. His wife was not engaged in paid employment but received a low income Government child benefit. His wife continued under medication for a serious post-partum illness following the birth of their second child and was not available for work as a teacher which was her usual occupation. When his wife was able to work she could contribute to the family income in the future. He was now the sole breadwinner but his work was irregular in any month. He stated that over the past year their joint income was $69,000. Once all expenses were deducted from the income there was no surplus. At the present time they were behind in their mortgage payment and they had entered an arrangement to spread those payments over time.

15 In relation to other matters, Mr Quinn noted that he had co-operated with WorkCover since the accident and was the first person to meet the inspectors on site immediately after the accident. He was the first person to make himself available for an interview at their offices and had provided several company documents and manuals for the investigation. He had not had any contact with WorkCover or Mr Compton for some time. Mr Quinn expressed a concern about being able to work as a qualified supervisor should he be convicted but following cross-examination, this part of his evidence was not pressed. Mr Quinn said he had followed Mr Compton's recovery from his injury through mutual contacts along with others who had known and worked with him for some time. Mr Quinn had not made any direct enquiry so as not to impose on Mr Compton. He stated that he was sorry for Mr Compton's injuries and would not wish they on any person. He felt sorry for Mrs Compton and the children and their sharing and enduring of his recovery, knowing that Mr Compton was such an independent person. He spoke of being glad that Mr Compton was blessed with this level of care.

16 Mr Quinn also gave oral evidence in relation to his financial circumstances. He noted that, at the time of his bankruptcy, he had few personal debts and that his financial problems had arisen from the joint guarantees given by the directors for the company's debts. The company's debts amounted to some $800,000. He had voluntary entered bankruptcy. The house in which he was living was valued at $510,000 by a licensed valuer nearly nine months prior to giving evidence and that valuation had been arranged for the purposes of establishing his net worth as required by the Trustee in Bankruptcy. Mr Quinn's wife had bought out his share in the house and had purchased that share from the Trustee for the sum of $95,000. There were mortgages on the house in the amount of $483,000. All Mr Quinn's other assets had been sold to pay off his and the company's creditors. The company was a franchisor and Mr Quinn had owned one of the franchises and had some houses with some being built. He sold some of his property to pay for continued construction prior to his bankruptcy and he no longer held any such property. He did not own a car and did not have any pension or superannuation. He held a joint bank account with his wife for the purposes of mortgage payments and that had a balance of approximately $3,000. The mortgage was one month in arrears in the sum of $2,600.

17 In relation to his work, Mr Quinn said that his work was varied and not regular. There might be small jobs totalling $700 and then there might be a gap for a month and then a job worth $2,000 and so it averaged itself out. His wife was not working but was interested in resuming teaching on a part-time basis but that was unlikely to occur until the youngest child reached approximately 12 months of age.

18 In cross-examination, Mr Quinn said he was operating essentially as a sole trader and described some of the work he had performed. He said there was not much paid employment for engineers where he lived although, for a period of time, he had performed work in Brisbane for an engineering firm. That position became too costly to continue even though they had moved to the Gold Coast so his family could be close to schooling but that job had now finished. While performing that work he had been on a salary of $90,000 per annum. Mr Quinn hoped that work would improve as the economy recovered but there was generally little available in the engineering field with several of the larger companies putting people off. Mr Quinn said that he was no longer seeking or was qualified to perform work as a supervisor and he had no present intention to become involved in the same type of work as he previously performed for Gerob. In relation to his last tax return, which was not in evidence, Mr Quinn remembered that he had earned $35,000 of the total of $69,000 earned by him and his wife: the remainder of the money was constituted by support payments made to his wife. Mr Quinn then clarified that the $69,000 income he had referred to in his affidavit was a projected figure and an anticipated income for the future based on the previous year's tax return.

19 Mr Hall represented himself in the proceedings. He tendered a document indicating that he had been made bankrupt on a debtor's petition. He tendered tax returns for both himself and his wife for the financial years 2008 and 2009. The 2009 tax return showed Mr Hall's employment as "band member" with a gross income of $38,829 in relation to that employment: with other income the total income for the financial year was just over $40,500. Mr Hall's 2007/2008 tax return showed his occupation as a musician with gross earnings in that capacity of approximately $34,000. Mr Hall further tendered three references that spoke well of his integrity, honesty and professionalism. From those documents it was also evident that Mr Hall, from approximately mid-2007, had been employed by a swimming pool company on a commission basis as a company sales representative. It was noted that, because of the economic downturn, his commission in the past two years was not as high as it could have been and that the building industry in rural areas had been hard hit. There was a reference to Mr Hall "doing it tough". There is, however, no reference to this employment in the tax returns tendered by Mr Hall. A letter from Mr Hall's accountant spoke of the acquisition in August 2003 of Gerob Investments trading as Beach Life Homes with Mr Hall taking on the role of marketing and sales manager while Mr Quinn had responsibility as construction manager. It was noted that in May 2007 the company went into voluntary administration and liquidation and further, as a result of personal guarantees given by Mr Hall, he was also later declared bankrupt. Mr Hall lost his family home, the family motor vehicle and was forced to sell some possessions to repay outstanding debts. Both Mr and Mrs Hall had worked in the business and were therefore forced to find other gainful employment. They relocated their family to a smaller home which they currently rented for $400 per week. The accountant noted that, since the business was placed in voluntary administration and liquidation, Mr Hall had made every attempt to face his responsibilities by paying off personal debts incurred over a period of time, maintaining full-time employment and also continuing to provide for his family and financially re-establishing himself. It was said that Mr Hall had made every attempt to face his responsibilities and that he did not hide from them despite the seriousness of his situation.

20 Mr Hall also provided an affidavit in which he confirmed that he had gained employment with a swimming pool company from mid-June 2007 as a commission only sales representative and was earning an average of $650 per week. He set out his family's financial earnings as being $1,220 per week with the remaining $570 per week being contributed by his wife from her employment. The families' average weekly expenses consumed their entire average weekly income . Mr Hall gave oral evidence confirming the material provided in his affidavit and as demonstrated in his taxation returns. He was not subjected to cross-examination by counsel for the prosecutor.

DELIBERATION
21 The first and primary function of the Court in setting an appropriate penalty for an offence under the Act is to assess the objective seriousness of the offence. Here, the offence is one committed by the company jointly owned by the defendants who were its directors. Their individual liability arises from their position as directors and that liability is not affected by the fact that the company has been wound-up. In light of the submissions it will also be necessary to separately consider the relevant culpability of the defendants.

22 Neither defendant submitted that this was not a serious breach of the Act. Counsel for Mr Quinn emphasised the existence of an informal system whereby people at the site were orally informed that any adjustments to the scaffolding had to be notified to the site supervisor or one of the company's officers. The existence of that informal system does not, by itself, significantly reduce the seriousness of the breach nor does it effectively control scaffolding adjustments. Consideration has to be given to the overall circumstances concerning the adjustment of scaffolding in the erection of these dwellings. The Agreed Statement of Facts in each matter acknowledge that a qualified scaffolding company was engaged to erect the scaffolding but that was the end of the contractual task and the defendants made no arrangements for that qualified scaffolder to regularly return to the site to ensure the safety of the scaffolding. There was no one amongst the company's employees or sub-contractors who was qualified to conduct such inspections. Significantly, in November 2005, the defendants received a report from an occupational health and safety consultant who had highlighted many of the issues said to surround the incident involving Mr Compton, including site-specific occupational health and safety management plans and certificates of competency for scheduled works. Mr Quinn terminated the consultant's engagement in November 2005 without consulting Mr Hall. The relevance of these matters is that a practice appears to have developed whereby tradesmen, including Mr Compton, would make their own adjustments to the scaffolding to facilitate workflow and to assist in the process they were performing. Another sub-contractor carpenter, Mr Smith, had adjusted the work platform from which Mr Compton fell. From time to time Mr Compton had adjusted the scaffolding. Neither Mr Smith nor Mr Compton held certificates of competency in relation to working with scaffolding.

23 Having regard to all the evidence the Court cannot accept the submission made on behalf of Mr Quinn that his culpability was lessened in some respect because of the failure of the scaffolding company to regularly inspect the scaffolding on site and thus, would have become aware of the unauthorised and dangerous adjustments made to the scaffolding by the tradesmen. To the extent that Mr Quinn relies upon the relevant Australian Standard concerning frequency of inspections by persons with an appropriate scaffolding certificate of competency, that duty did not necessarily rest with the scaffolding provider under the terms of the supply and erect arrangements with the company. Absent any ongoing arrangement with the scaffolding company to conduct such inspections, those inspections had to be appropriately conducted by Gerob but they could only do so by using persons with an appropriate scaffolding certificate of competency. If they had no such person amongst their workforce or did not propose to engage such a person, then the company's obligation was to engage an external inspection provider, logically being the scaffolding company that supplied the scaffolding.

24 The extent of the failures of the corporation and therefore the failures borne by the directors are indicated by the breadth of the particulars to which each defendant has entered a plea of guilty. The defendants have accepted that the corporation failed: to ensure persons working on, egressing, or accessing scaffolding at the site were not exposed to the risk of falling through or from scaffolding; failed to adequately supervise and enforce its system of work or procedure for making or requesting modifications to scaffolding; failed to provide a safe system of work for working at heights in that the company failed to ensure that scaffolding used by persons at the site was safe and failed to ensure all necessary components of the scaffolding were properly in place; failed to provide adequate information, instruction, training and supervision of persons undertaking work at the site in relation to the use and/or modification of scaffolding; and, failed to undertake and implement any or any adequate risk assessment in relation to the performance of work at heights at the site. On this building site a house was being constructed on a sloping site. The scaffolding rose up to and over 8 metres at some sections of the building while Mr Compton fell from a height of only 2.5 metres yet was very severely injured to the extent that it is unlikely that he will ever work again.

25 The Court accepts the prosecutor's submission that there was no documented system of work relating to scaffold adjustments at the site and that the system was an informal one. Nevertheless, having regard to the nature of the industry, that may have been an effective system if it had been enforced: to the contrary, Mr Compton and Mr Smith understood that all tradespersons were to make their own modifications to meet the requirements of the work as it progressed. Further, the contract's manager and the site supervisor had not received any requests for scaffold adjustments in relation to the site. There was nothing in the system of work that required qualified inspection of the scaffolding as it was required to be altered and adjusted as the work progressed. This issue might have been addressed by a site-specific safety management plan but there was no such document provided by the company. Further, it is to be observed that the scaffolding on the site was found to be in a most dangerous condition with ties and ledges being removed and that most decks were unsafe, with planks and handrails missing. At the weekly construction meetings there was no discussion of the requirement for adjusting scaffold and no specific discussions regarding working at heights. The company did not undertake toolbox talks in relation to working from the scaffolding installed at the sites.

26 The Court also accepts the submission of counsel for the prosecutor that the unauthorised modification of the scaffolding by unqualified persons led to a serious risk of persons working on or obtaining access to the scaffolding potentially falling through or from that scaffolding and that risk should have been obvious to the company. The company was well aware that its employees and sub-contractors would be required to work at heights. It was foreseeable that there was a risk of falling through or from the scaffolding if it was altered in an unauthorised way or by someone who was not qualified to alter the scaffolding. There were simple and reasonably available steps that were open to the company to address this risk and indeed, such steps were taken following the accident. Taken together, these circumstances and the company's failures in relation to information, instruction, training and supervision lead the Court to the conclusion that this was a serious breach of the Act. In determining an appropriate penalty it is acknowledged that the maximum penalty for each of the defendants, as first offenders, is $55,000.

27 In relation to the relative culpability of each of the defendants and issues of parity, the Court is unable to accept counsel's submission that Mr Quinn's culpability should be found to be no more than that of Mr Hall. Again, the Court accepts the submissions by counsel for the prosecutor in relation to this matter. While both were directors of the company, Mr Quinn had responsibility for construction and site management and held a contractor's licence and also held a tertiary qualification as an engineer. Mr Hall was the managing director of the company and was responsible for sales, marketing, advertising and administration although it was said he had joint responsibility with Mr Quinn for occupational health and safety. Mr Hall occasionally visited sites and was aware of the progress stages of each home but he did not hold a contractor's licence or builder's licence. Mr Hall was not primarily responsible within the company for day-to-day activities of work being performed on building sites whereas Mr Quinn had responsibility for construction and site management and monitored the progress of all construction sites through weekly and monthly meetings and would undertake site inspections where structural decisions were required. Mr Hall had taken some steps to address occupational health and safety and risk management issues by engaging an occupational health and safety consultant approximately 12 months prior to the incident involving Mr Compton: it was Mr Quinn who, without discussion with Mr Hall, terminated that engagement after the consultant had identified flaws in the company's safety systems. The Court accepts Mr Hall's evidence that, having regard to his background, he had very little knowledge in the area of occupational health and safety and any actions he took were taken in conjunction with Mr Quinn. Having regard to these matters, the Court is satisfied that Mr Hall was significantly less culpable than Mr Quinn in relation to the risk to safety which constitutes the breach particularised in these cases.

28 In relation to each defendant, a general deterrence will form a significant component of the overall penalty. Fall injuries are prevalent throughout industry, including the domestic building industry. Falls, including falls from scaffolding, are unfortunately a recurring event. The issue of specific deterrence is not so clear cut in each of these cases. Both defendants are undischarged bankrupts and it will be some time before they are able to again act as directors and have the capacity to influence occupational health and safety in that role. It is possible that Mr Quinn will return to some role in the industry where he will have responsibility for some aspect of occupational health and safety but in essence, that is a speculative conclusion that should not impact upon the level of penalty to be imposed. There is nothing in the evidence to suggest that Mr Hall will return to this type of work or at the level of management he attained with Gerob. To the extent that specific deterrence will be taken into account, it will have a reduced role in relation to each of these defendants.

29 In relation to subjective factors the prosecutor accepts that, in each case, there was an early plea of guilty entered by each defendant. That was certainly the case in relation to Mr Hall who appeared in person at the first mention of the matter and was urged by the Court not to then enter a plea until he had taken legal advice in view of the seriousness of the matter. On the second mention of the matter, Mr Hall entered a plea of guilty. Mr Quinn's case was somewhat different in that, initially, he was seeking advice as to the plea he should enter but that was inhibited by his financial circumstances. It was those circumstances that led to a series of negotiations with the prosecutor and a plea was ultimately entered to an Amended Application for Order. In all the circumstances, the Court accepts that Mr Quinn also entered an early plea. In relation to the utilitarian value of these pleas, each defendant is to receive the benefit of a 25 per cent discount on the penalty to be imposed upon them.

30 Both defendants are first offenders with no previous relevant convictions and are entitled to the leniency attaching to that status. Although the Court has found that each breach was serious, this was not a case where no attention had been paid to occupational health and safety but the flaws in that system were serious. The defendants took prompt measures to address the risks exposed by this accident. They adopted a site-specific occupational health and safety management plan and implemented plans at their sites for risk management. They introduced a statement of responsibilities, safety training, incident management and safety rules as well as safe work method statements. Further, the company introduced a number of checks to ensure appropriate certification and qualifications were held for scheduled work and that records of scheduled work were kept in relation to trained and qualified personnel in accordance with the WorkCover guide to certification. It is significant that the prosecutor accepted that each defendant co-operated with the investigation of this accident. Those matters will be taken into account as mitigating the ultimate penalty to be imposed.
31 As to the issues of contrition and remorse, s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 now permits remorse to be taken into account as a mitigating factor only if the offender has provided evidence that he or she has accepted responsibility for their actions and the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage, or both. In his affidavit, Mr Quinn said that, although he had not made direct enquiries to Mr Compton of his progress and rehabilitation, he did follow his recovery through mutual contacts. The lack of direct enquiry was to avoid imposing upon Mr Compton. Mr Quinn felt sorrow for the injuries caused to Mr Compton and did not wish injuries of that nature on any other person and he also expressed sorrow for Mr Compton's wife and children sharing and enduring his recovery. Mr Quinn did not add to those matters in his oral evidence. It therefore appears that, while Mr Quinn has acknowledged in a general sense, the injury, loss and damage caused by the actions of the company there is no evidence any reparations were made by the company for such injury, loss or damage and there is no specific evidence that Mr Quinn has accepted responsibility for his actions. While the matters he has raised will be taken into account, the lack of specific evidence directed to the issue of contrition results in that aspect not being able to be taken into account by the Court as a mitigating factor.

32 Mr Hall represented himself in the proceedings as already mentioned. It is highly unlikely that Mr Hall was aware of the provisions of s 21A of the Crimes (Sentencing Procedure) Act, particularly the provision regarding contrition but in his address to the Court the first matter he dealt with was to express his sorrow, as a former director of the company, that systems should have been in place that were not in place and they were not the best systems they could possibly be. He expressed his feelings for Mr Compton and his wife whom he had known since 1994 and regarded himself as being quite close to them and he had visited them on a number of occasions after the accident to offer his support as a director of the company. Bearing in mind that Mr Hall was self-represented, it appears to the Court that the spirit of the Crimes (Sentencing Procedure) Act regarding contrition has been met and that Mr Hall has accepted responsibility for his actions and has acknowledged the injuries, loss and damage caused by those actions. In his case, contrition will be a factor taken into account in mitigating the amount of penalty to be imposed.

33 As the evidence stands, the Court would impose a primary penalty of $7,000 on Mr Hall and $9,500 on Mr Quinn. With both defendants being undischarged bankrupts, it was to be expected that some attention would be paid to the issue of their capacity to pay a fine. In Mr Hall's case the position is relatively straightforward. He presented taxation records for the past two financial years and other evidence of his employment returning a modest amount each year. He adopted on oath the assessments he had put forward as to the family's living expenses. Those figures were not subjected to cross-examination and were accepted by the prosecutor and showed that, with the support of his wife's earnings, the family are just barely able to meet their regular outgoings. The modest means of Mr Hall is consistent with other evidence as to the sale of his house and other assets to meet liabilities arising from the operation of the company. It is possibly of some significance that in approximately mid-May 2010, Mr Hall expects to be discharged from his bankruptcy and may then be in a better position to search for more lucrative employment. There are, however, some indications from the material before the Court to suggest that employment options in regional areas of Australia are not plentiful at the present time and it may be some time before Mr Hall is able to obtain more lucrative employment. The Court accepts his evidence that at the present time he has no capacity to pay a fine but having regard to the considerations just mentioned, this appears to be an appropriate case to reduce the penalty by 50 per cent and to indicate to Mr Hall that he may apply to the Registrar of the Court for time to pay the fine to be imposed. The Court determines in Mr Hall's case while the appropriate primary penalty is $7,000 having regard to the seriousness of the offence, significant discounts and mitigating factors that, in light of his limited capacity to pay that fine, the sum of $7,000 is to be reduced by 50 per cent resulting in a final penalty of $3,500.

34 Unfortunately, in relation to Mr Quinn, the picture is much less clear. Despite the proceedings being adjourned specifically to allow Mr Quinn to address all the issues that would arise upon him entering a plea of guilty, no taxation returns, accountant's documents or verified financial material were placed before the Court and counsel for Mr Quinn declined an opportunity offered by the Court for this material to be filed shortly after submissions had closed. In his affidavit, Mr Quinn confirmed that he was an undischarged bankrupt and having returned his building licence, he was not engaged as an employee, did not build for anyone and did not supervise any building work. He was operating as an engineering consultant and his work ebbed and flowed resulting in him receiving periodic payments for his engagements. His wife now owned his home and he had no other assets including a car, insurance policies or any bank accounts. In his affidavit he listed his monthly outgoings and over a period of one year, those outgoings would just be met by the $69,000 which was their joint income. In cross-examination, it appears that the $69,000 per annum figure was a projection from the previous years' taxation returns which Mr Quinn had seen and had used to calculate the figures contained within his affidavit. On the most generous approach to his evidence, it would appear that in the last financial year Mr Quinn earned approximately $35,000 meaning that his wife received benefits of approximately $34,000. The evidence suggests that these earnings are totally consumed by family outgoings.

35 There was evidence of Mr Quinn previously holding an engineering position carrying a salary of $90,000 per annum but he no longer holds that position. His evidence is that work is scarce, nevertheless he appears to have a capacity, as a qualified engineer, to obtain employment well above the $35,000 he earned as a consultant in the last financial year. His capacity to obtain such a position is undoubtedly affected by the state of the economy and the nature of the industry in which he operates and his prospects may be enhanced after he is discharged from bankruptcy in approximately 2011. Despite having some misgivings about the quality of the evidence as to his financial position, the Court is ultimately satisfied that he is presently unable to pay a substantial fine imposed upon him in relation to this breach. In those circumstances, the primary penalty should be reduced by 35 per cent. The Court therefore discounts the primary penalty of $9,500 by 35 per cent: the final penalty imposed shall be $6,175. Mr Quinn, also, may make application to the Registrar of the Court for time to pay that fine.

36 The provisions of the Fines Act 1996 requiring the Court to give consideration to the means of a defendant to pay a fine also extends to the question of costs (see the Full Bench in WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR I87 at para [122] et seq). In that case the Full Bench accepted the proposition that normally, a successful litigant, including a prosecutor in occupational health and safety prosecutions, is entitled to his or her costs but that, nevertheless, the Court possessed a wide discretion in relation to the issue of costs. In applying the provisions of the Fines Act and considering the means of the defendant to pay the fine and the costs, adjustments to the reasonable costs sought may be required. At the request of the Court, the prosecutor, following the completion of argument, indicated that the approximate total professional costs and disbursements in each matter were as follows: in the matter of Mr Hall, approximately $10,000 and in the matter of Mr Quinn, approximately $11,000. It should be noted, however, that there was considerable overlap in the evidence in both cases with the specific role of each defendant being the main difference. As pointed out by the Full Bench in Wilson, the costs should not be disproportionate to the fine. Bearing those principles in mind and the evidence as to the means of each defendant, the Court determines that a just and reasonable order for costs in the case of Mr Quinn would be $2,000 and in Mr Hall's case, $1,000.

37 One final matter requires brief mention. The prosecutor submitted that, in the present proceedings, the Court should not follow the course I adopted in Inspector Batty v Brian John Goldsmith [2009] NSWIRComm 72. In that case, the defendant had only recently been declared bankrupt and the evidence supported a conclusion that he had an ongoing incapacity to pay any fine. In applying the provisions of the Fines Act the Court reduced the penalty to be imposed but also took the step of deferring the payment of that penalty until the expiration of the nominal term of the defendant's bankruptcy. In the present proceedings the prosecutor urged that course should not be adopted in these cases and further submitted that there was no legislative support permitting the Court to suspend or defer the payment of the fine. In the present proceedings it appears the nominal term of bankruptcy for Mr Hall will expire within the next few months and Mr Quinn's nominal expiry date is in 2011: they have prospects of being discharged from their bankruptcy at that time. Those facts and the different circumstances found in Goldsmith would lead the Court to conclude that the approach adopted in Goldsmith is not necessarily appropriate in the present matter and indeed, neither defendant sought such an order. Because of the general difficulty of dealing with bankrupt defendants in sentencing under the Occupational Health and Safety Act, it is of some importance to clarify the basis upon which the Court acted in Goldsmith. It may be accepted that there is no precise statutory provision permitting the suspension of payment of a fine although it might be said that a Court could, as an integral part of the sentencing process, defer the issue of orders until such time as the defendant was discharged from bankruptcy and was able to return to some normality in relation to their financial affairs. It may be possible for the Court to lay down a regime for the payment of a fine beginning at a future date. Quite apart from these possibilities, it should be understood that, in the absence of a statutory limitation, a superior court of record (such as this Court) even though of limited jurisdiction, has power to do all things necessary to give effect to that jurisdiction which is conferred upon it. That approach is consistent with the judgments in Philip Morris Inc and anor v Adam P Brown Male Fashions Pty Ltd and ors [1981] HCA 7; (1981) 148 CLR 457 and National Parks and Wildlife Service and anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 although these cases were decided in a different context. Ultimately, the Court must impose a sentence that is just and appropriate having regard to all the factors, including the defendants' capacity to pay a fine. The imposition of a fine that is crushing in its effect on a defendant does not advance the cause of justice or assist in obtaining its numerous objectives. In view of the course proposed to be taken by the Court in the current matters, this issue need not be fully considered for present purposes although it should be noted that in WorkCover Authority of NSW v Anywhere Tower Cranes Pty Ltd and ors (20070 NSWIRComm 44, in the context of applying the Fines Act to a bankrupt defendant, Marks J contemplated that the payment of the monetary penalty would occur after discharge from bankruptcy. For present purposes, these matters need not be considered further but are mentioned in view of the issues raised by counsel for the prosecutor and the general importance of the subject matter.

ORDERS
38 The Court makes the following orders:

(a) In the matter of Inspector Patton v Peter Hall, Matter No IRC 1942 of 2008:

(i) the defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26(1) of that Act as particularised in the Amended Application for Order to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $3,500 with half that sum to be paid to the prosecutor by way of moiety;

(iii) the defendant is to pay $1,000 towards the costs of the prosecutor.

(b) In the matter of Inspector Patton v Jonathan Quinn, Matter No IRC 1943 of 2008:

(i) the defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26(1) of that Act as particularised in the Amended Application for Order to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $6,175 with half of that sum to be paid to the prosecutor by way of moiety;

(iii) the defendant is to pay $2,000 towards the costs of the prosecutor.

ANNEXURE

AGREED STATEMENT OF FACTS OF PETER HALL
Mattter No IRC 1942 of 2008

1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the said Act to institute proceedings in the within matter.
2. At all material times Peter Hall of 2 Belbourie Crescent, Boat Harbour in the State of New South Wales (“the defendant”) was a director of Gerob Investments Ballina, trading as Beach Life Homes (ACN 000 864 808) (in liquidation) a corporation whose registered office was situated at 53 Carrington Street, Lismore in the State of New South Wales (“Gerob”).
3. Gerob ceased trading due to insufficient funds on 15 May 2007 and Allan Nicholls of Nicholls & Co was appointed administrator. Gerob was placed into liquidation on 6 June 2007. 4. At all material times, Gerob undertook residential construction works and was the principal builder/contractor at a construction site located at 119 Hillside Avenue, Goonellabah in the state of New South Wales (“the site”). Gerob were building an individual dwelling on the site.
4. At all material times Gerob had two directors, the defendant and Jonathan Quinn (“Mr Quinn”). The defendant and Mr Quinn purchased the company in 2003.
BACKGROUND
5. The defendant was the Managing Director and the Sales and Marketing Manager of Gerob. Mr Quinn was a Director and the Company Secretary.
6. The defendant, as the Managing Director, was responsible for Sales, Marketing and Advertising, Administration and had joint responsibility with Mr Quinn for Occupational Health and Safety. The defendant did visit sites occasionally and was aware of the progress stages of each home. The defendant did not hold a Contractors Licence or a Builders Licence.
7. Mr Quinn had responsibility for Construction and Site management. Mr Quinn held a Contractor Licence (number 163659C) from 14 August 2004, which expired on 14 August 2008. Gerob held a Contractor Licence (number 11297) from 15 February 1974 which expired on 14 February 2008.
8. In that role Mr Quinn monitored the progress of all construction sites via weekly and monthly meetings, and undertook site inspections if a structural decision was required. When Mr Quinn undertook site inspections he did not conduct safety inspections. Mr Quinn stated that the responsibility for ensuring all occupational health and safety plans were implemented on site was delegated to the Site Supervisor. Mr Quinn had day to day responsibility for monitoring supervisors. If problems arose with the construction operations Mr Quinn would consult with the defendant. Both the defendant and Mr Quinn could approve funds for the provision of safety on Gerob’s sites.
9. Gerob employed nine direct employees, four retained persons and subcontractors.
10. Gerob employed Leonard Reilly (“Mr Reilly”) as Contracts Manager to coordinate the logistics of construction its various sites. Mr Reilly’s role was mainly office based. He assisted in facilitating the supervisors in managing the sites.
11. Gerob employed Roy Van Kessel as a supervisor. The Beach Life Homes Handbook contained a general position description for Mr Van Kessel, including his supervisory duties but there was no record of induction having occured when he commenced employment with Gerob. Mr Van Kessel did not receive a site-specific Occupational Health and Safety Management Plan or any instruction regarding the process for scaffold adjustment.
12. Gerob engaged Patrick Dunn (“Mr Dunn”) approximately 12 months prior to the incident to consult on occupational health and safety and risk management issues. The defendant was responsible for Gerob engaging Mr Dunn to perform these tasks.
13. Mr Dunn submitted a report on 22 November 2005 in relation to safety issues for the organisation. Mr Dunn’s report had highlighted many of the issues surrounding the incident involving Mr Ian Compton, including the need for a site-specific Occupational Health and Safety Management Plan and certificates of competency for scheduled work. Mr Quinn terminated Mr Dunn’s employment in approximately November 2005. The defendant was not involved in the decision to terminate Mr Dunn’s services.
14. After the incident in October 2006, Mr Dunn had a meeting with Gerob to discuss occupational health and safey issues, in particular, the alteration, adjustment or tampering of scaffolding on works sites by unauthorised subcontractors. Mr Dunn provided a report to the defendant and Mr Quinn in relation to the scaffolding and requirements for site-specific safety plans.
15. Gerob engaged Ian Compton (“Mr Compton”) to undertake carpentry work at the site. Mr Compton operated as a sole trader. Mr Compton had been undertaking subcontract work for Beach Life Homes for approximately 33 years and for 3 to 4 years whilst it was owned by Gerob. Mr Compton had been working on the site for approximately 4 months prior to the incident and had 47 years experience as a carpenter. Mr Compton was aged 62 years in October 2006.
16. Gerob also engaged Ken Smith (“Mr Smith”), a subcontracted carpenter, to undertake carpentry work at the site.
17. Gerob contracted Ballina Scaffolding Services Pty Ltd (“Ballina Scaffolding”) to construct and dismantle the scaffold on site. The quotation for scaffolding provided by Ballina Scaffolding included an option for plank relocation services on a hourly rate upon request. Bill Walker (“Mr Walker”) was the director of Ballina Scaffolding.
18. Ballina Scaffolding provided a scaffold handover certificate on 31 July 2006. In addition, photographs of the scaffolding were taken at the time of handover, and all components were in place.
19. Between handover on 31 July 2006 and the incident on 11 October 2006 Ballina Scaffolding inspected the site once after heavy rain in August 2006. Mr Walker, director of Ballina Scaffolding, states that he completed a ‘drive by’ in September 2006 and at that stage the scaffold appeared okay.
20. Ballina Scaffolding were not contracted by Gerob to perform any other duties on site, and they were not asked to undertake plank relocation.


THE INCIDENT
21. On 11 October 2006, Mr Compton sustained injuries after falling approximately 2.5 metres from a scaffold at the site.
22. On 11 October 2006, Mr Compton was working with Mr Smith undertaking the task of installing sheets of a fibro (blue board) cladding material to the outside of the dwelling on the site.
23. Mr Compton passed Mr Smith the last sheet of fibro (blue board) for the section of the house they were working on. While Mr Smith was nailing this blue board into position Mr Compton moved to the next work area.
24. Mr Compton walked around the building from where Mr Smith was working and retrieved plans for measurement from his van. Mr Compton then placed blue board on the workhorses on the balcony adjacent to the new work area.
25. Mr Compton accessed the row of scaffold adjacent to the garage door on the northern side of the structure. He accessed the scaffold from the balcony at the rear of the structure, that is, the western side of the structure.
26. Mr Compton went from the balcony to the hop up brackets on the scaffold with the intention of taking measurements from the corner of the building to where the fibro commenced. Mr Compton was taking measurements in order to have the blue boards cut, so that when Mr Smith arrived at that position they could continue the cladding work.
27. Mr Compton put his tape measure on the corner of the house to take a measurement. Mr Compton would have been standing in an upright position near the corner, and facing toward the wall of the house. Whilst undertaking this work Mr Compton fell approximately 2.5 metres from the scaffolding. Mr Compton cannot recall the details immediately prior to the incident.
28. Mr Compton and Mr Smith were working to cladding detail plans provided by Gerob. There was an overhang from the wall of the house and on to the veranda. The row of scaffolding was approximately in line with the wall of the house. Scaffold bays in this area were approximately 2.4 metres long. The construction plans depict the overhand distance as being 1140mm. The measurement that Mr Compton was taking was 4 metres to the left of the overhang area, approximately 500mm into the middle bay.
29. There were two people on site at the time of the incident, Mr Smith and the owner of the house under construction, Chris Irish (“Mr Irish”). Both Mr Smith and Mr Irish confirmed that Mr Compton was found on the ground on a blue board below the middle bay.
30. Neither Mr Smith nor Mr Irish witnessed Mr Compton fall. Mr Smith was working at the back deck at the time of the incident and Mr Irish was working on the front deck.
31. At approximately 11:00am on 11 October 2006 Mr Irish heard an unpleasant sound, stopped work and looked out to the northern side of the structure and saw Mr Compton on the ground.
32. Mr Smith heard Mr Irish yell that Mr Compton was on the ground. Mr Smith rushed down to where Mr Compton had fallen and observed Mr Compton unconscious on the ground. Mr Compton regained consciousness within a few minutes and was in pain. Mr Smith called 000 for an ambulance.
33. Mr Compton suffered five broken ribs, a broken vertebrae requiring surgery, nerve damage in both his legs, bowel and bladder, and bruised lungs, as a result of the incident. Mr Compton will not be able to return to work and is having ongoing complications with the healing of his spine.
34. At the time of the incident on 11 October 2006 the scaffold from which Mr Compton fell was inadequate.
35. The middle bay of scaffold, where Mr Compton was found on the ground, had two board hop ups between the scaffold and the house. There were no planks behind the hop ups, and while there was a handrail there was no mid rail or kick board. The two board hop ups that went from the middle bay back toward the balcony were missing mid rails and kick boards. There were no planks behind the hop ups, ledgers missing behind the two boards, and hop up brackets were at different heights to the middle bay hop up brackets. There was only one tie in place securing this scaffolding to the structure.
36. At the time of the Incident, the access point provided in the structure through the middle bay was missing ledgers and had no compensating scaffolding components.
37. The bay of the left of the middle bay had ledgers missing.
38. Mr Compton did not make any adjustments to the scaffold prior to commencing work on the date of the incident, nor was he aware that the scaffold was incomplete. There was no signage to indicate the scaffold was incomplete.
39. Mr Compton and Mr Smith had previously made scaffold adjustments to facilitate workflow on site. They had previously completed the sarking, which required movement of a few of the hop ups, as did the installation of the blue board. Other tradesmen on site would make their own modifications according to the requirements of their work. Gerob was aware of this practice. Neither Mr Compton nor Mr Smith held certificates of competency in relation to working with scaffold.
40. Mr Bill Walker inspected the site following the incident, on the date of the incident, with Mr Scott Walker. Photographs were taken during their inspection. Mr Bill Walker described the general condition of the scaffold on site on the day of the incident as “butchered and in a very dangerous condition”. Ties and ledgers had been removed, and most decks were unsafe with planks and handrails missing.
41. The blue board used to perform the cladding work was ordered by Gerob to coincide with the approximate date for commencement of the cladding work. The blue board was placed in position according to the cladding detail plan provided by Gerob. Progress of subcontractors was monitored at a weekly construction meeting. It was foreseeable that the cladding work would be commencing, and that elements of the work would need to take place from the scaffold.
42. Gerob did not employ ticketed scaffolders at the time of the incident. Neither Mr Smith nor Mr Compton held scaffolding tickets. Gerob did not make arrangements for Ballina Scaffolding, or any other organisation, to undertake scaffolding adjustments.
43. The system of work relating to scaffold adjustments was informal. Gerob advised that tradesmen at the site should request adjustments via their supervisor or direct to Mr Reilly. Neither Mr Reilly nor Mr Van Kessel received any requests for scaffold adjustments in relation to the site. Mr Compton and Mr Smith both understood that all trades were to make their own modifications to meet their requirements. Mr Compton did not receive any documentation in relation to scaffold adjustment or any procedure for requesting scaffold adjustment from Gerob.
44. There was no system of work in place to inspect scaffold adjustments made by subcontractors. Mr Van Kessel stated that he was aware that planks were being moved in his statement dated 16 February 2007, however he says he did not know planks were being moved or adjustments made to the scaffold by tradesmen in his statement dated 26 April 2007.
45. Mr Van Kessel visited the site on the Friday prior to the incident. It was his routine to attend the site and then attend the weekly construction meeting. Mr Van Kessel was aware Mr Compton and Mr Smith would be performing cladding work and would need to work from the scaffold. Mr Van Kessel undertook a site inspection, however did not inspect the scaffold. Mr Van Kessel advised that tradesmen should have been able to assess the scaffold in relation to their specific work requirements and request scaffold adjustments.
46. Mr Van Kessel was aware of the work schedule for Mr Compton and Mr Smith as he had to monitor the progress payments. Mr Van Kessel was aware of where all tradesmen were up to.
47. Mr Van Kessel was not qualified to inspect scaffold nor did he inspect the scaffold prior to use by Gerob’s employees or subcontractors.
48. Gerob did not keep records in relation to inspection or alternation of scaffold at the site.
49. Discussion of the requirements for scaffolding adjustment did not take place at the weekly construction meetings. No specific discussion took place at weekly meetings regarding working at heights. Gerob did not undertake toolbox talks in relation to work being undertaken at the site or in relation to the scaffold installed by Ballina Scaffolding at the site.
50. Gerob did not have signage or a system of work in place to prevent access to the scaffold at the time of the incident.
51. At the time of the Incident Gerob did not have an Occupational Health and Safety Management Plan for the site and did not provide Mr Van Kessel with an Occupational Health and Safety Management Plan for the site when he assumed the supervisory role.
52. Gerob nominated Mr Van Kessel as the official supervisor at the site. Mr Van Kessel advised that Mr Len Reilly was the supervisor at the site, while he was mostly looking after the northern projects. Gerob and Mr Reilly advise that Mr Reilly was not the supervisor, as Mr Reilly had no experience in this area.
53. Mr Van Kessel, as a supervisor, did not receive any information that would assist him in identifying or assessing hazards, eliminating or controlling hazards or in monitoring and reviewing risk control measures. Mr Van Kessel received no information in relation to scaffolding arrangements or prevention from falls from heights.
54. Gerob did not require Mr Compton to submit a safe work method statement for the work he was performing. Gerob did not provide any safe work method statement to subcontractors or any documentation verifying site safety rules.
55. Gerob did not undertake a risk assessment which considered the use of scaffold at the site and appropriate control measures were not identified or implemented.
56. Gerob did not conduct site specific inductions at the site. Mr Compton and Mr Smith did not receive site specific Occupational Health and Safety Training from Gerob. They did not receive specific work activity occupational health and safety training or information relating to scaffold or working with heights from Gerob.
57. Following the incident, Gerob adopted a site-specific Occupational Heath and Safety Management Plan. They implemented plans on their sites in relation to Risk Management, Statement of Responsibilities, Occupational Health and Safety Training, Incident Management and Site Safety Rules and Safe Work Method Statements.
58. Furthermore, Gerob put in place systems to check that appropriate certification and qualification were held for scheduled work, records of scheduled work were kept in relation to trained and qualified individuals in accordance with the WorkCover Guide to Certification.
59. The following supporting documentation is annexed:

a) 16 Colour photographs taken by Inspector Chamberlain on 11 October 2006;

b) Factual Inspection Report of Inspector Chamberlain dated 17 August 2007;
c) Prohibition Notice 149004 dated 11 October 2006;
d) Improvement Notice 7-126182 dated 28 February 2007;

e) 7 Colour photographs taken by Ballina Scaffolding Service on 31 July 2006 at time of handover;

f) AS/NZS 4576:1995 - “Guidelines for Scaffolding”, section 12.1 to 13.3
g) Beach Life Homes Handbook Edition Two (undated);
h) Prior convictions certificate.









oo00oo

ANNEXURE

AGREED STATEMENT OF FACTS OF JONATHAN QUINN
Matter No IRC 1943 of 2008

1. At all material times, the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (“the Act”) and empowered under Section 106(1)(c) of the Act to institute proceedings in this matter.2
2. At all material times, Jonathan Quinn of 63A Daintree Drive, Lennox Head, in the State of New South Wales (“the defendant”), as a director of Gerob Investments Ballina, trading as Beach Life Homes (ACN 000 864 808) (in liquidation) a corporation whose registered office was situated at 53 Carrington Street, Lismore in the State of New South Wales (“Gerob”).
3. Gerob ceased trading due to insufficient funds on 15 May 2007 and Allan Nicholls of Nicholls & Co was appointed administrator. Gerob was placed into liquidation on 6 June 2007.
4. At all material times, Gerob undertook residential construction works and was the principal builder/contractor at a construction site located at 119 Hillside Avenue, Goonellabah in the state of New South Wales (“the site”). Gerob were building an individual dwelling on the site.
5. At all material times Gerob had two directors, Peter Hall and Jonathan Quinn. Mr Hall and Mr Quinn purchased the company in 2003. Mr Hall was the Managing Director and the Sales and Marketing Manager. Mr Quinn was a Director and the Company Secretary. Mr Quinn held a Contractor Licence (number 163659C) from 14 August 2004, which expired on 14 August 2008. Gerob held a Contractor Licence (number 11297) from 15 February 1974, which expired on 14 February 2008.
6. Mr Hall, as the Managing Director, had the final say on all aspects of the business. Mr Hall did visit sites occasionally and was aware of the progress stages of each home.
7. Mr Quinn monitored the progress of all construction sites via weekly and monthly meetings, and undertook site inspections if a structural decision was required. When Mr Quinn undertook site inspections he did not conduct safety inspections. Mr Quinn stated that the responsibility for ensuring all occupational health and safety plans were implemented on site was delegated to the Site Supervisor. Mr Hall and Mr Quinn both had responsibility for monitoring supervisors. Both Mr Hall and Mr Quinn could approve funds for the provision of safety on the corporation’s sites.
8. Gerob employed Leonard Reilly as Contracts Manager to coordinate the logistics of construction its various sites. Mr Reilly’s role was mainly office based and to facilitate the supervisors in managing the sites. Gerob employed nine direct employees, four retained persons and subcontractors.
9. Gerob employed Roy Van Kessel as a supervisor. The Beach Life Homes Handbook contained a general position description for Mr Van Kessel, including his supervisory duties but there was no record of induction having occured when he commenced employment with Gerob. Mr Van Kessel did not receive a site-specific Occupational Health and Safety Management Plan or any instruction regarding the process for scaffold adjustment.
10. Gerob engaged Patrick Dunn approximately 12 months prior to the incident to consult on occupational health and safety issues. Mr Quinn terminated Mr Dunn’s employment in approximately November 2005. Mr Dunn submitted a report on 22 November 2005 in relation to safety issues for the organisation. Mr Dunn’s report had highlighted many of the issues surrounding the incident involving Mr Compton, including site-specific Occupational Health and Safety Management Plan and tickets of competency for scheduled work. After the incident in October 2006, Mr Dunn had a meeting with Gerob to discuss occupational health and safey issues, in particular, the alteration, adjustment or tampering of scaffolding on works sites by unauthorised subcontractors. Mr Dunn provided a report to Mr Hall and Mr Quinn in relation to the scaffolding and requirements for site-specific safety plans.
11. Gerob engaged Ian Compton to undertake carpentry work at the site. Mr Compton operated as a sole trader. Mr Compton had been undertaking subcontract work for Beach Life Homes for approximately 33 years and for 3 to 4 years whilst it was owned by Gerob. Mr Compton had been working on the site for approximately 4 months prior to the incident and had 47 years experience as a carpenter. Mr Compton was aged 62 years in October 2006.
12. Gerob contracted Ballina Scaffolding Services Pty Ltd (“Ballina Scaffolding”) to construct and dismantle the scaffold on site. The quotation for scaffolding provided by Ballina Scaffolding included an option for plank relocation services on a hourly rate upon request. Bill Walker was the director of Ballina Scaffolding.
13. Ballina Scaffolding provided a scaffold handover certificate on 31 July 2006. In addition, photographs of the scaffolding were taken at the time of handover, and all components were in place.
14. Between handover on 31 July 2006 and the incident on 11 October 2006, Ballina Scaffolding inspected the site once after heavy rain in August 2006. Mr Walker, director of Ballina Scaffolding, states that he completed a ‘drive by’ in September 2006 and at that stage the scaffold appeared okay.
15. Ballina Scaffolding were not contracted by Gerob to perform any other duties on site, and they were not asked to undertake plant relocation.
16. On 11 October 2006, Mr Compton sustained injuries after falling approximately 2.5 metres from a scaffold at the site.
17. On 11 October 2006, Mr Compton was working with Ken Smith, a subcontracted carpenter. Mr Compton passed Mr Smith the last sheet of fibro (blue board) for the section of the house they were working on. While Mr Smith was nailing this blue board into position Mr Compton moved to the next work area.
18. Mr Compton walked around the building from where Mr Smith was working and retrieved plans for measurement from his van. Mr Compton then placed blue board on the workhorses on the balcony adjacent to the new work area.
19. Mr Compton accessed the row of scaffold adjacent to the garage door on the northern side of the structure. He accessed the scaffold from the balcony at the rear of the structure, that is, the western side of the structure.
20. Mr Compton went from the balcony to the hop up brackets on the scaffold with the intention of taking measurements from the corner of the building to where the fibro commenced. Mr Compton was taking measurements in order to have the blue boards cut, so that when Mr Smith arrived at that position they could continue the cladding work.
21. Mr Compton was taking measurements from the corner of the house. Mr Compton recalls that the measurement he needed to take was to be 4 metres back from the corner. Whilst undertaking this work Mr Compton fell approximately 2.5 metres from the scaffolding. Mr Compton cannot recall the details immediately prior to the incident.
22. Mr Compton and Mr Smith were working to cladding detail plans provided by Gerob. There was an overhang from the wall of the house and on to the veranda. The row of scaffolding was approximately in line with the wall of the house. Scaffold bays in this area were approximately 2.4 metres long. The construction plans depict the overhand distance as being 1140mm. The measurement that Mr Compton was taking was 4 metres to the left of the overhang area, approximately 500mm into the middle bay.
23. There were two people on site at the time of the incident, Mr Smith and the owner of the house under construction, Chris Irish. Both Mr Smith and Mr Irish confirmed that Mr Compton was found on the ground on a blue board below the middle bay.
24. Neither Mr Smith nor Mr Irish witnessed Mr Compton fall. Mr Smith was working at the back deck at the time of the incident and Mr Irish was working on the front deck.
25. At approximately 11:00am on 11 October 2006, Mr Irish heard an unpleasant sound, stopped work and looked out to the northern side of the structure and saw Mr Compton on the ground.
26. Mr Smith heard Mr Irish yell that Mr Compton was on the ground. Mr Smith rushed down to where Mr Compton had fallen and observed Mr Compton unconscious on the ground. Mr Compton regained consciousness within a few minutes and was in pain. Mr Smith called 000 for an ambulance.
27. Mr Compton suffered five broken ribs, a broken vertebrae requiring surgery, nerve damage in both his legs, bowel and bladder, and bruised lungs, as a result of the incident. Mr Compton will not be able to return to work and is having ongoing complications with the healing of his spine.
28. The scaffolding from which Mr. Compton fell had been adjusted by Mr. Smith .
29. At the time of the incident on 11 October 2006 the scaffold from which Mr Compton fell was inadequate.
30. The middle bay of scaffold, where Mr Compton was found on the ground, had two board hop ups between the scaffold and the house. There were no planks behind the hop ups, and while there was a handrail there was no mid rail or kick board. The two board hop ups that went from the middle bay back toward the balcony were missing mid rails and kick boards. There were no planks behind the hop ups, ledgers missing behind the two boards, and hop up brackets were at different heights to the middle bay hop up brackets. There was only one tie in place securing this scaffolding to the structure.
31. At the time of the incident, the access point provided in the structure through the middle bay was missing ledgers and had no compensating scaffolding components.
32. The bay of the left of the middle bay had ledgers missing.
33. Mr Compton did not make any adjustments to the scaffold prior to commencing work on the date of the incident, nor was he aware that the scaffold was incomplete. There was no signage to indicate the scaffold was incomplete.
34. Mr Compton and Mr Smith had previously made scaffold adjustments to facilitate workflow on site. They had previously completed the sarking, which required movement of a few of the hop ups, as did the installation of the blue board. Other tradesmen on site would make their own modifications according to the requirements of their work. Neither Mr Compton nor Mr Smith held certificates of competency in relation to working with scaffold.
35. Mr Bill Walker inspected the site following the incident, on the date of the incident, with Mr Scott Walker. Photographs were taken during their inspection. Mr Bill Walker described the general condition of the scaffold on site on the day of the incident as “butchered and in a very dangerous condition”. Ties and ledgers had been removed, and most decks were unsafe with planks and handrails missing.
36. The blue board used to perform the cladding work was ordered by Gerob to coincide with the approximate date for commencement of the cladding work. The blue board was placed in position according to the cladding detail plan provided by Gerob. Progress of subcontractors was monitored at a weekly construction meeting. It was foreseeable that the cladding work would be commencing, and that elements of the work would need to take place from the scaffold.
37. Gerob did not employ ticketed scaffolders at the time of the incident. Neither Mr Smith nor Mr Compton held scaffolding tickets. Gerob did not make arrangements for Ballina Scaffolding, or any other organisation, to undertake scaffolding adjustments. The system of work relating to scaffold adjustments was informal. Gerob advised that tradesmen at the site should request adjustments via their supervisor or direct to Len Reilly. Neither Mr Reilly nor Mr Van Kessel received any requests for scaffold adjustments in relation to the site. Mr Compton and Mr Smith both understood that all trades were to make their own modifications to meet their requirements. Mr Compton did not receive any documentation in relation to scaffold adjustment or any procedure for requesting scaffold adjustment from Gerob.
38. There was no system of work in place to inspect scaffold adjustments made by subcontractors. Mr Van Kessel stated that he was aware that planks were being moved in his statement dated 16 February 2007, however he says he did not know planks were being moved or adjustments made to the scaffold by tradesmen in his statement dated 26 April 2007.
39. Mr Van Kessel visited the site on the Friday prior to the incident. It was his routine to attend the site and then attend the weekly construction meeting. Mr Van Kessel was aware Mr Compton and Mr Smith would be performing cladding work and would need to work from the scaffold. Mr Van Kessel undertook a site inspection, however did not inspect the scaffold. Mr Van Kessel advised that tradesmen should have been able to assess the scaffold in relation to their specific work requirements and request scaffold adjustments.
40. Mr Van Kessel was aware of the work schedule for Mr Compton and Mr Smith as he had to monitor the progress payments. Mr Van Kessel was aware of where all tradesmen were up to.
41. Mr Van Kessel was not qualified to inspect scaffold nor did he inspect the scaffold prior to use by Gerob employees or subcontractors
42. Gerob did not keep records in relation to inspection or alternation of scaffold at the site.
43. Discussion of the requirements for scaffolding adjustment did not take place at the weekly construction meetings. No specific discussion took place at weekly meetings regarding working at heights. Gerob did not undertake toolbox talks in relation to work being undertaken at the site or in relation to the scaffold installed by Ballina Scaffolding at the site.
44. Gerob did not have signage or a system of work in place to prevent access to the scaffold at the time of the incident.
45. At the time of the incident, Gerob didnot have an Occupational Health and Safety Management Plan for the site and did not provide Mr Van Kessel with an Occupational Health and Safety Management Plan for the site when he assumed the supervisory role.
46. Gerob nominated Mr Van Kessel as the official supervisor at the site. Mr Van Kessel advised that Mr Len Reilly was the supervisor at the site, while he was mostly looking after the northern projects. Gerob and Mr Reilly advise that Mr Reilly was not the supervisor, as Mr Reilly had no experience in this area.
47. Mr Van Kessel, as a supervisor, did not receive any information that would assist him in identifying or assessing hazards, eliminating or controlling hazards or in monitoring and reviewing risk control measures. Mr Van Kessel received no information in relation to scaffolding arrangements or prevention from falls from heights.
48. Gerob did not require Mr Compton to submit a safe work method statement for the work he was performing. Gerob did not provide any safe work method statement to subcontractors or any documentation verifying site safety rules.
49. Gerob did not undertake a risk assessment which considered the use of scaffold at the site and appropriate control measures were not identified or implemented.
50. Gerob did not conduct site specific inductions at the site. Mr Compton and Mr Smith did not receive site specific Occupational Health and Safety Training from Gerob. They did not receive specific work activity occupational health and safety training or information relating to scaffold or working with heights from Gerob.
51. Following the incident, Gerob adopted a site-specific Occupational Heath and Safety Management Plan. They implemented plans on their sites in relation to Risk Management, Statement of Responsibilities, Occupational Health and Safety Training, Incident Management and Site Safety Rules and Safe Work Method Statements.
52. Furthermore Gerob put in place systems to check that appropriate certification and qualification is held for scheduled work, records of scheduled work are kept in relation to trained and qualified individuals in accordance with the WorkCover Guide to Certification.
53. The following supporting documentation is annexed:

a) 16 Colour photographs taken by Inspector Chamberlain on 11 October 2006;

b) Factual Inspection Report of Inspector Chamberlain dated 17 August 2007;
c) Prohibition Notice 149004 dated 11 October 2006;
d) Improvement Notice 7-126182 dated 28 February 2007;

e) 7 Colour photographs taken by Ballina Scaffolding Service on 31 July 2006 at time of handover;

f) AS/NZS 4576:1995 - “Guidelines for Scaffolding”, section 12.1 to 13.3
g) Beach Life Homes Handbook Edition Two (undated);
h) Prior convictions certificates.







oo00oo

LAST UPDATED:
1 February 2010