Employer Held Liable for Fatal Injury Caused by Unsafe Construction Practices

The Industrial Relations Commission of New South Wales found an employer liable for failing to provide a safe system of work, leading to a fatal injury at a construction site. The employer was fined $13,500.

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales ([NAME]) v [NAME] [2004] [NAME] 394 PROSECUTION: WorkCover Authority of New South Wales PARTIES : DEFENDANT: [redacted] CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - prosecution under s9 - Occupational Health and Safety Act 2000 - construction industry - falling log - fatal injuries resulting - plea - offence proved - penalty imposed - application of s6 Fines Act - principles of parity considered Fines Act 1996 LEGISLATION CITED : Occupational Health and Safety Act 2000

[COMPANY] v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 [COMPANY] v WorkCover Authority of New South Wales ([NAME]) (2001) 106 IR 435 [NAME] v [COMPANY] [2004] [NAME] 353 CASES CITED : Postiglione v R (1997) 189 CLR 295 R v [NAME], R v Houlton (2000) 49 NSWLR 383 Rodney Morrison v Powercoal Pty Limited [2003] [NAME] 416 WorkCover Authority of New South Wales ([NAME]) v [NAME] trading as King Camphor [2004] [NAME] 392 HEARING DATES: 12/01/2004 DATE OF

JUDGMENT: 12/16/2004

PROSECUTOR: Ms L McManus of counsel LEGAL REPRESENTATIVES: DEFENDANT: [redacted]

JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 16 December 2004

Matter No IRC 6520 of 2003 WORKCOVER AUTHORITY OF NEW SOUTH WALES ([NAME]) v [NAME] under s9 of the Occupational Health and Safety Act 2000

1 On 15 November 2001, the defendant exposed [NAME], to risk of fatal injury while he was at the defendant's place of work, when a pole erected as a part of the structure of a shed, fell and struck [NAME]. The defendant accepted that he had breached the obligation imposed upon him by s 9 of the Occupational Health and Safety Act 2000, that he not expose non employees to risks to their health, safety and welfare from the conduct of his undertaking, while they are at his place of work.

2 The particulars of the charge were:

(a) The defendant failed to provide at the construction site a safe system of work for the erection of the farm shed/carport;

(b) The defendant failed to ensure that [NAME], a visitor to the construction site, was not exposed to risks of injury while at the said construction site;

(c) The defendant failed to ensure that [NAME], while at the said construction site, was kept at a safe distance from where overhead work was being carried out;

(d) The defendant failed to conduct a risk assessment prior to work commencing;

(e) The defendant failed to provide information and instruction as may be necessary to ensure the safety of non-employees including [NAME] at the construction site;

(f) As a result of the said failures [NAME] was placed at risk of injury and in fact suffered fatal injuries.

3 The agreed statement of facts relevantly provided:

1. On 14 and 15 November 2001 [NAME] (the Defendant) was self- employed.

2. On 14 and 15 November 2001 the Defendant's place of work was the construction site of a partially completed farm shed/carport for vehicular and equipment storage (the construction site) located at [ADDRESS], Stokers Siding, New South Wales (the premises).

3. At all material times [NAME] and [NAME] owned and occupied the premises.

4. At all material times [NAME] trading as King Camphor owned and operated a truck with a mounted crane, registration number XGR 921 (the truck).

5. On 14 and 15 November 2001 the Defendant's undertaking was the construction of the farm shed/carport. His role was to assist [NAME] in the construction of [NAME]' farm shed/carport.

6. On 14 and 15 November 2001 the Defendant's place of work was the construction site.

7. Prior to 15 November 2001 the Defendant attended the premises to collect his step-daughter who was a friend of [NAME]' daughter. Whilst at the premises [NAME] asked the Defendant if he would assist in the construction of a farm shed/carport.

8. The farm shed/carport was to be built of hardwood. [NAME] showed the Defendant some old treated poles similar to old telegraph poles about 6.5 metres in length and weighing about 250 to 300 kilograms each to be used in the construction. 9. [NAME] asked the Defendant if he would cut the poles by chainsaw.

10. Prior to the Defendant attending the premises to work [NAME] levelled the area of the construction site and dug holes for the poles to be placed in to a depth of about 1.4 metres.

11. On 14 November 2001 the Defendant and Mr [NAME] (a bobcat operator) attended the premises.

12. No risk assessment was carried out prior to the work being undertaken. The construction method was as [NAME] asked the Defendant to do it and [NAME] and the Defendant discussed the way it was to be carried out as they went along. 13. [NAME] and the Defendant did not discuss whether the Defendant was to be paid but it was expected that the Defendant would receive remuneration in some form for the work that he did.

14. With the assistance of a bobcat operator, the Defendant stood twelve poles into the holes that [NAME] had dug. The Defendant and [NAME] identified that there were not enough poles and that further poles would be needed to finish the job.

15. The Defendant contacted [NAME] trading as [NAME] asked [NAME] to deliver to the construction site more poles and to assist with the construction of the farm shed/carport.

16. It was expected that [NAME] would have been paid for the poles and the use of the crane.

17. The Defendant backfilled the holes, levelled the poles and rounded them up at the construction site.

18. On Thursday 15 November 2001 at about 11am, the Defendant attended the construction site to work. The Defendant cut the poles to length by chain saw. 19. [NAME] used the crane, mounted on his truck, to erect the poles. Each time the Defendant, [NAME] and [NAME] completed putting an horizontal pole in place [NAME] would have to move the truck.

20. The crane was operated by [NAME] standing on the back left hand side of the truck facing the front as he leant to operate the controls (see photograph 9).

21. The crane operated by [NAME] lifted the poles and placed them horizontally on top of the vertical standing poles which had been placed in the holes. Photograph 1 of 15 shows the horizontal and vertical poles in place.

22. To lift a pole a chain connected to the crane was tied around the centre of the pole (see photographs 2 and 8). 23. [NAME] was present while the work was being performed.

24. For the large poles one of the men assisted by holding the tail rope and guiding the poles. For part of the work this was done by [NAME]. 25. [NAME] directed that the lighter poles were to be placed at the back of the shed frame which was to be the back awning of the shed.

26. Prior to the accident the horizontal poles were not tied down after being placed on the vertical standing poles: see photographs 4 and 13.

27. At about 1pm Mr [NAME], a bobcat driver, attended the construction site and commenced working with [NAME], spreading gravel.

28. About 17 poles had been placed in the ground. About six horizontal poles had been placed on the vertical poles by [NAME] that day.

29. To place the horizontal poles on the vertical poles an area was cut out of the horizontal pole at each end (mortice) so that the horizontal pole would sit on the top of the vertical pole (see photograph 5). The morticing was done by the Defendant.

30. To place the smaller logs the end was cut into a point (pointing): see photograph 2 and 6. The point was then fitted into a vertical pole. The pointing was done by the Defendant.

31. When the men had about two more poles to position, [NAME] attended the construction site. [NAME] was a flatmate of the Defendant. [NAME] had attended the premises as he and the Defendant intended going fishing that afternoon after the work was finished. 32. [NAME] assisted the placement of the poles by holding the tagline. [NAME] at this stage was working nearby with the bobcat driver.

33. The Defendant was standing on the back of the truck with the chainsaw (see photograph 15). He had a conversation with [NAME] about attending a funeral for [NAME]'s step-brother at Sydney. [NAME] was standing on the right hand side of the truck.

34. A pole had been placed onto the back of the truck and [NAME] intended to pick up another pole and place it on the truck to take to the next bay. The pole was on the ground next to the truck and was connected to the crane by chain ready for lifting.

35. The pole was one of the smaller poles and it did not have a tag line on it.

36. The Defendant turned away from [NAME] and commenced the chainsaw and started pointing another pole. The crane operated by [NAME] commenced lifting the pole attached to the crane.

37. About a minute later the Defendant heard [NAME] yell out. The Defendant stopped the chainsaw and turned to [NAME]. [NAME] had been hit on the back by a falling horizontal pole. 38. [NAME] had been working at the site for an hour or so.

39. The horizontal pole which hit [NAME] had been in position on top of 2 vertical poles: see photograph 3.

40. It is not clear whether the pole being lifted by [NAME] hit the horizontal pole causing it to fall or whether the crane being operated by [NAME] hit the horizontal pole causing it to fall. It is the Defendant's understanding that the jib of the crane bumped the big horizontal pole, causing it to fall. 41. [NAME] suffered a disrupted pelvis. He was taken to hospital and died later the same day.

42. The horizontal pole was, in the Defendant's judgement, thinner than the other big horizontal poles. The mortices for this pole were only cut about 30mm deep (not as deep as the mortices on the other horizontal poles) so that it would sit higher on the top of the vertical poles. This was done so that the roof would be level: see photograph 5.

43. The pole being lifted was of varying weights and thickness along its length. When lifted by a chain attached to the middle of the log it could swing or dip.

44. The Defendant had not done this type of work for [NAME] before. However he had built cattle yards at [NAME] premises approximately eight years previously. The Defendant had previously worked casually driving trucks with [NAME] and trimming trees for [NAME]. Years previously he had a fencing contracting business where he had done a little bit of this sort of work as it came along. However he had not done a lot of work where a crane had been used.

4 This judgment deals with the penalty to be imposed upon the defendant, the maximum penalty available being $55,000, as well as the matter of costs.

5 The amount of the penalty to be imposed upon the defendant is to be determined, having regard to the nature and seriousness of this offence; the role which general and specific deterrence have to play in that penalty and the impact of the subjective features of the offence, as revealed in the evidence. The amount of the discount flowing from the defendant's plea must also be decided.

The Offence

6 On the evidence, there is no doubt that the prosecution demonstrated that the offence was a serious one. By his plea, the defendant accepted his responsibility for this offence, understandably on the evidence. The risk was both readily foreseeable and avoidable.

7 For the defendant it was argued, however, that it was relevant that the construction work on which he was engaged was not conducted in the ordinary course of his business. His involvement had arisen as the result of an arrangement between a group of friends, including the owner of the property, [NAME] and the owner of the crane, [NAME]. The defendant had a [NAME] and his expertise was in chain saw work. He had never been involved in a construction such as this. It was unusual, involving the use of large telegraph poles, which required an unusual construction method, with which he was not familiar and which [NAME] required. That was why the horizontal poles used in constructing the frame of the shed were not strapped when placed upon the vertical posts, as soon as they were lifted, which was likely to have decreased the likelihood of the risk in question materialising.

8 The accident occurred when [NAME] used his crane to move a pole, in a space which was too confined for that work. The pole could easily have been moved manually. The defendant had been unaware of [NAME]'s intention to use the crane to lift the other pole and if he had been, he would have stopped him. He did not see what happened and had not been directing the work. It was [NAME] who decided what was to be done. The result was that the crane struck a pole already lifted into place, but not secured there, dislodging it and striking [NAME].

9 A determination of the nature and seriousness of the offence, flows from a consideration of the evidence of the risks in question. The defendant argued that the risk which materialised was not obvious. I cannot agree. Use of a crane in a confined space, small enough to permit the crane to hit an unsecured log resting at height on a vertical pole, under which people are working, is an obvious and readily foreseeable risk, as well as one which is readily avoidable. That the method of construction being undertaken was one not familiar to the defendant, suggests that there should have been a heightened concern to consider safety requirements, not that they should have been entirely ignored by those undertaking this work for reward.

10 The risk of injury from a heavy, unsecured log falling from a considerable height, is obvious and could have been readily prevented, if the log was secured and the crane not operated in a proximity which would allow the unsecured log to be dislodged, if struck. The evidence suggested that there was nothing which would have prevented this obvious approach being adopted.

11 Tragically, it was a death which resulted when the apparent risk materialised. That, too, was foreseeable, given the size and weight of the log and where it rested unsecured at above head height. The occurrence of death may manifest the seriousness of a risk to safety. (Rodney Morrison v Powercoal Pty Limited [2003] [NAME] 416 at [32].) This is such a case.

12 The defendant's evidence showed that after the accident, his attention to safety considerations altered. I accept that this is to be taken into account in an assessment of penalty, as is other evidence of the defendant's contrition, which I also accept was real, involving as it did the death of a close friend. Contrition was demonstrated, too, by the steps taken by the defendant to assist [NAME]'s family.

13 Nevertheless, the evidence well demonstrated that this was a serious offence. The work was undertaken in circumstances of obvious risk, where there were no steps taken at all to ensure the safety of those who might become the subject of those risks. The result was a death, itself a readily foreseeable result from the approach adopted.

Deterrence

14 It was submitted that the defendant was most unlikely to re-offend and that this should be taken into account in relation to deterrence. The evidence was that the defendant remains in business on his own account, albeit in fencing work. He has pursued work of many kinds in the past, including construction work. While the work undertaken on this occasion was construction work with which he was not familiar, there is no reason why that situation might not arise again in future.

[ADDRESS] has emphasised that general deterrence is a major consideration in prosecutions brought under the Act and that in most cases, specific deterrence must be taken into account, in order that a sufficient level of diligence by the offender will be encouraged for the future. ([COMPANY] v WorkCover Authority of New South Wales (2000) 49 NSWLR 610). I am satisfied that both have a proper role to play in this case.

Subjective features

16 A number of subjective features are relevant to be here taken into account in determining penalty, including the plea. This was the defendant's first offence. There was co-operation, with the prosecuting authority, although for the prosecutor it was submitted that consideration would be given to the obvious departures between the evidence given in these proceedings by the defendant as to [NAME]'s involvement in the construction work and the information provided to the [NAME], in the investigation. I accept that there was a significant departure in the two versions, of which account must be taken. This affected the conclusions otherwise available to be reached as to the defendant's co-operation with the prosecuting authority, as reflecting his contrition for what had occurred.

17 While the agreed statement of facts noted that [NAME] was a visitor to the site, the defendant's evidence suggested he had a paid role in the work of constructing the shed, as extensive as involvement in planning the design and method of construction of the shed.

18 It was not submitted that the defendant's evidence about these matters should be rejected. He was unable to explain why this information had not been forthcoming in the investigation. I accept that proper account must be taken of this circumstance in determining penalty.

Discount

19 I am satisfied that the defendant is entitled to a discount for the utilitarian value of the plea, (R v [NAME]; R v Houlton (2000) 49 NSWLR 383), indication of which was given some two weeks prior to the hearing. This resulted in consultation between the parties, so that a statement of facts was agreed and a new charge, to which the plea was then entered. No doubt this led to utilitarian savings, which should be reflected in a discount of 20%. I have also concluded that there should be a further discount of 5%, reflecting the steps taken to address safety deficiencies; some co-operation with the prosecuting authority and remorse and contrition for what occurred.

Defendant's Financial Position

20 Section 6 of the Fines Act 1996 requires that consideration be given to the evidence of the defendant's financial position, as discussed by the [ADDRESS] in [COMPANY] v WorkCover Authority of New South Wales ([NAME]) (2001) 106 IR 435. The purpose of a fine is, of course, to punish the offender. The burden which a penalty will impose must, however, also be considered by the Court. That does not mean that a proper consideration of the evidence in a particular case will not result in a heavy penalty.

21 In [NAME] v [COMPANY] [2004] [NAME] 353, the [ADDRESS] has recently established principles applicable to the application of s 6 of the Fines Act in proceedings such as this. It was said at [22] to [25] that: 22 Section 6 of the Fines Act is in the following terms: s 6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 23 The application of the provisions of s 6 of that Act and legislation to similar effect were comprehensively reviewed by Marks J in Inspector Mansell v Eleven Lighting Pty Ltd [2002] [NAME] 339 at paragraphs [14] and following. That judgment also reviews the application of s 6 of the Fines Act to corporate defendants in prosecutions brought under the occupational health and safety legislation as determined by this Court both at single judge and appellate level as well as the standard of proof which applies, including the onus on a defendant to put forward such material by way of evidence as will assist a court in applying the provisions of s 6.

24 We agree with and adopt the following principles which may be distilled for present purposes from the discussion of the authorities contained within the judgment in [NAME] v [COMPANY] :

1. This court is obliged to take into account the means of a defendant to pay any penalty by virtue of s 6 of the Fines Act .

2. The imposition of a fine on a corporation may have different ramifications to the imposition of a fine on an individual where imprisonment or some other penalty may be available as an alternative sanction. That alternative is not available in the case of a corporation.

3. A defendant who wishes to rely on the provisions of s 6 to temper the amount of any monetary penalty bears the onus of putting such evidence in support as is appropriate before the court and bears the onus on the basis of the balance of probabilities of satisfying the court as to the truth of such evidence and its relevance to the fixing of penalty.

4. Whilst it is for a corporate defendant to fully disclose its financial state, it is for the prosecutor to check that information in order to assist the court in determining the propriety of taking that evidence into account in imposing a monetary penalty. It is inappropriate for the court to exercise an inquisitorial role in this regard.

25 In addition, we note the following principles which have been settled for the consideration of the financial situation of the defendant: [redacted]

2. The financial position and the means of a defendant should be taken into account when determining penalty. It is well established that, notwithstanding such considerations, the penalty must ultimately reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309; [COMPANY] v WorkCover Authority of New South Wales (2001) 106 IR 435.

[ADDRESS] also dealt with the need for a defendant to put adequate evidence before the Court, as to relevant financial material, if s 6 of the Fines Act is to be applied, observing at [27]: In our opinion, having regard to the fundamental principles as discussed earlier in these reasons, it is necessary for information of that kind to be made available by a defendant before a court can properly exercise the discretion required to be exercised by s 6 of the Fines Act . As was pointed out in [NAME] v [NAME] , the defendant is uniquely qualified to provide that information and is required to do so if it wants the benefits of s 6. A failure to do so will result in circumstances where the appropriate application of s 6 of the Fines Act cannot be undertaken and must fail. In our opinion, such was the case here.

23 The evidence showed the defendant's financial position following the breakdown of his former defacto relationship and his resulting circumstances and employment; his property acquisition and sales; his establishment of a business in [NAME] and its dissolution. The defendant now conducts a [NAME], originally in [NAME], but now on his own account. While the evidence showed relatively modest income in recent years, under $22,000 in the last four years and under $7,000 in the last year, as the result of delay in payment for a particular fencing job, I am satisfied that there is a capacity to meet the penalty I propose to impose, reflective of the circumstances of this offence.

24 The defendant supports his family of three children. His bank account has a balance of a little over $4,000. He owns a property which is the subject of a mortgage of some $151,000, utilised both for the building of a house and in his business. The value of the property was not in evidence, although the defendant believed it exceeded the mortgage. The defendant owns a number of vehicles and now engages three employees and contractors in the [NAME]. He has also acquired various business equipment for his [NAME] at a cost of some $60,000, for which he still owed some $20,000.

Parity

25 The defendant was charged under the same section of the Act as [NAME], the owner and operator of the crane (see WorkCover Authority of New South Wales ([NAME]) v [NAME] trading as King Camphor [2004] [NAME] 392). The principle of parity arises for consideration in fixing sentence, in accordance with the approach of the High Court in Postiglione v R (1997) 189 CLR 295 at 301-2 per Dawson and Gaudron JJ and at 341 per Kirby J. Here the evidence demonstrated that a serious offence had been committed, requiring a heavy penalty, the requirements of safety having been entirely ignored.

26 The culpability of the two defendants was shown to be similar, but not identical, with that of this defendant being somewhat less than that of [NAME]. Differences in their respective financial means also arose for consideration in determining penalty. In each case that resulted in a reduction in the fine otherwise to be imposed, more in the case of [NAME] than that of the defendant. Each entered a plea of guilty, although in somewhat different circumstances. The discounts in each case are also different.

27 I have concluded, applying the parity principle and having regard to all of the relevant factors, that the penalty for the two defendants should be different, with the penalty for [NAME] being somewhat lower than that of the defendant, having in mind the significant differences in their respective financial means. The penalty imposed remains however, a substantial one in the circumstances of this defendant, reflective of the seriousness of the offence. But for those circumstances, it would have been higher.

Conclusion

28 In light of all of these factors, I have concluded that a penalty of $18,000 must be imposed in the case of this offence, reduced by a total of 25%. This results in a final penalty of $13,500.

Orders 29 For all of the reasons given, I find the defendant guilty of the charge and enter a conviction accordingly. The defendant is ordered to pay a penalty of $13,500 with a moiety to the prosecutor. The defendant is also ordered to pay the prosecutor's costs as agreed, or as assessed in accordance with the Court's Rules.

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