Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector David Clyant v Birzulis Associates Pty Ltd [2004] NSWIRComm 380 PROSECUTOR: Inspector David Clyant PARTIES : DEFENDANT: Birzulis Associates Pty Ltd FILE NUMBER: IRC 6252 of 2003 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 2000 - s 8(2) - plea of guilty -construction work undermines and destabilises adjoining building - failure to temporarily support wall of adjoining building - failure of builder to follow engineering advice - adjoining wall collapses and building demolished - no workplace injuries - serious offence - subjective factors lead to significant discount on penalty - penalty imposed HEARING DATES: 11/29/2004 DATE OF JUDGMENT: 12/10/2004 PROSECUTOR: Mr O'Neil of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr B. Hodgkinson SC and Mr R Hollo of counsel SOLICITORS: Moray & Agnew JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 10 December 2004 Matter No. IRC 6252 of 2004 Inspector David Clyant v Birzulis Associates Pty Limited. Prosecution under s 8(2) of Occupational Health and Safety Act 2000. JUDGMENT [2004] NSWIRComm BACKGROUND 1 In July 2001, approval was given for reconstruction of an extension of an existing building at 82 Parramatta Road, Camperdown. The development involved the demolition of an existing hotel structure and part excavation of the premises. The adjacent premises at 84 Parramatta Road, Camperdown was a two-storey building operating as Central Autohaus. As the excavation proceeded a crack appeared in the Autohaus premises and a complaint was made to the construction site manager. 2 Birzulis Associates Pty Ltd, the defendant in these proceedings, were structural engineers who were retained for the purposes of this development. During the course of excavation employees of the defendant including Aldis Birzulis attended the site and also consulted with the proprietor of Autohaus, a Mr Marcos. Mr Marcos became concerned about further cracking to his building and movement of the building causing doors to jam and engaged his own structural engineer Mr Byatt to inspect the premises and to engage in discussions with the defendant as to remedial action. 3 Between 2 November and 23 November 2001 there were a number of discussions between the defendant, representatives of the developer and Mr Byatt acting for Mr Marcos and Autohaus as to how to address the cracking and movement problems evident in Autohaus. Ultimately an agreement was reached that a certain style of raked support would be provided to the western wall of Autohaus. Work had commenced on that support system and the raking support was to be installed in the week beginning 26 November 2001. However, on 25 November 2001, while there were no workers present at the site the wall collapsed and ultimately, at police direction, the building was demolished. 4 As a consequence of an investigation of these matters Inspector Clyant commenced proceedings against the defendant under s 8(2) of Occupational Health and Safety Act 2000. A plea of guilty was entered by the defendant and this judgment deals with the submissions on penalty. THE CHARGE AND THE EVIDENCE 5 At the hearing a further amended Application for Order was filed in Court. As amended the charge alleged that the defendant being an employer did fail between 2 November 2001 and 23 November 2001 at premises located at 82 Parramatta Road Camperdown to ensure the health safety and welfare at work of all the employees of the defendant and in particular Michael Andrew Grogan and Andrew James Brooking. The particulars of the charge noted that on six dates between 2 November and 23 November 2001, Mr Grogan or Mr Brooking worked at the premises for periods varying between 20 minutes to 45 minutes. It was alleged that on those dates and at those times as a result of excavation work being undertaken at the premises the neighbouring building (Central Autohaus) was placed at risk of collapse. It was alleged that on the dates and for the times specified the defendant breached s 8(1) in failing to provide adequate temporary support to ensure that the neighbouring building was not at risk of collapse, causing injury to the employees. As a result of the defendant's failings Mr Grogan and Mr Brooking were exposed to risk to their health safety and welfare. 6 During the course of the hearing the Court was provided with a number of photographs and constructions plans to assist in explaining the circumstances of the construction and the nature of the risks which arose as a result of the excavation of the site. 7 Ultimately, a Statement of Facts was tendered. Omitting formal parts, it is convenient to set out the terms of that Statement: . . . 2. At all material times, Birzulis Associates Pty Ltd ("Birzulis"), was a duly incorporated company with its registered office at 583 Darling Street, Rozelle in the State of New South Wales; 3. At all material times, Birzulis were Structural Engineers, and an employer in NSW which employed Michael Grogan, engineer, and Andrew Brooking, draftsman. 4. At all material times, a construction site was located at 82 Parramatta Road, Camperdown in the State of New South Wales ("the premises"). 4. (sic) Located adjacent to the premises was a 2 storey building occupied by a business known as Central Autohaus at 84 Parramatta Road ("the Neighbouring Building") that was owned and occupied by Central Autohaus Pty Ltd. Mr Helio Marcos ("Marcos") was a director of Central Autohaus Pty Ltd who worked at the Neighbouring Building. 5. On 5 July 2001, development consent was granted by South Sydney Council (the "Council") for reconstruction and extension of the existing building on the premises ("the Development"). The Development involved the demolition of the existing hotel structure and part excavation of the premises. 6. At all material times, Dalway Enterprises Pty Ltd ("Dalway"), through its director Vince Hannan, was the project manager for the Development. 7. At all material times, Dalway was a duly incorporated company with its registered office at Level 1, 48 Chippen Street, Chippendale in the State of New South Wales. 8. At all material times Dalway was the owner of the premises. 9. From 20 March 2001, Vince Hannan was the sole director of Dalway. 10. CIVITAS Partnership, ("CIVITAS") Architects were retained to design the Development on behalf of Dalway. 11. Birzulis was retained as structural engineers for the Development. At all material times Aldis Birzulis was a director of Birzulis and one of its engineers working on the Development. Birzulis also employed Michael Grogan, engineer, and Andrew Brooking, draftsman, to work on the Development. 12. The initial Council consent for the Development was conditional on keeping the existing external structure essentially intact. 13. In or about September 2001, applications for amendments to the original consent were submitted and accepted by the Council based on submitted structural details and structural certificates from Birzulis. These amendments extended the excavation at the premises to cover almost the entire site to provide additional parking spaces as well as changes to the internal layout. 14. These amendments provided that some walls that were originally to be removed and rebuilt were to be retained and underpinned in the area of the excavation. 15. In particular, these amendments provided for a change of design for ensuring the integrity of the boundary wall at the western side of the premises by changing the underpinning method for the boundary wall. The previous design provided for piles socketed into the rock below the basement slab level with reinforced shotcrete between the piles. This design was replaced with construction of a 350 millimetre thick brick wall sitting on the rock above the basement slab level. 16. Dalway retained Kerry Burgess ("Burgess") as site supervisor and Construction Manager of the Development. 17. Between 11 October and 29 October 2001, the bulk of the excavation for the basement at the premises was undertaken by subcontractors. A batter was left in place in order to allow for subsequent segmental detailed excavation and underpinning. Work commenced on underpinning the wall on the western side of the premises on or about 30 October 2001. 18. On Thursday, 2 November 2001, Marcos noticed a door was jamming in its frame at the front of the Neighbouring Building and also noticed a gap between the floor slab and the eastern boundary wall of the Neighbouring Building ("the Wall") which was immediately adjacent to the western boundary wall of the premises. 19. On that same day, Marcos retained Mr John Byatt ("Byatt"), structural engineer of J.S. Byatt & Associates, who inspected the Neighbouring Building and the premises on that day in the company of Kerry Burgess and Michael Grogan. At this time, Byatt expressed his concern as to long term and short term stability of the clay embankment supporting the footings at the premises. Byatt advised all present that he believed that the Wall should have been underpinned in addititon to the underpinning that had already occurred to the western boundary wall of the premises. 20. Between 2 November 2001 and 24 November 2001, demolition and excavation work continued to be performed at the premises. On the following dates and for the following periods of time, Grogan and Brooking worked at the premises and/or the Neighbouring Building: a) 2 November 2001 Michael Grogan for approximately 45 minutes. b) 5 or 6 November 2001 Michael Grogan for approximately 20 minutes. c) 13 November 2001 Michael Grogan for approximately 20 minutes. d) 20 November 2001 Michael Grogan for approximately 40 minutes. e) 22 November 2001 Andrew Brooking for approximately 30 minutes. f) 23 November 2001 Michael Grogan for approximately 30 minutes. 21. On Monday, 5 November 2001, Aldis Birzulis contacted Byatt and advised him that he did not consider that the Wall needed to be underpinned. Aldis Birzulis arranged a meeting for 6 November 2001 at the premises. The meeting on 6 November 2001 was attended by Byatt, Aldis Birzulis, Kerry Burgess and Vince Hannan. The meeting concerned the continuing construction work at the premises. At the meeting there was a discussion as to what further steps should be taken to protect the structural integrity of the Wall and the Neighbouring Building. Byatt requested Birzulis to provide a report from a geotechnical engineer as to the expected long term settlement of the footings of the Neighbouring Building. 22. On 7 November 2001, Birzulis requested SMEC Testing Services Pty Ltd, Geotechnical Engineers ("SMEC"), to view photographs and other documents relating to the Development, seeking their opinion as to the long term settlement of the footings of the Neighbouring Building. SMEC did not undertake an inspection of the premises. A report dated 20 November 2001 was prepared by Laurie Ihnativ, an engineer employed by SMEC. In his statement to the Prosecutor, Laurie Ihnativ stated that he was not advised before preparing his report that there were cracks in the Neighbouring Building. 23. On Wednesday 14 November 2001, Byatt met with Marcos to inspect new cracks in the Neighbouring Building. 24. On Monday, 19 November 2001, Marcos identified a crack at the Neighbouring Building and organised an inspection of the Neighbouring Building by Mr Yoges Waran ("Waran"), building assessor, for the Council. Marcos requested a stop work order on the Development which was not granted by Waran. Waran organised a further meeting at the premises between the parties on 20 November 2001. Byatt also inspected the Neighbouring Building later that day. He was of the opinion that the only appropriate response to the cracking was to install shoring capable of resisting the gravity loading effects of the Wall. 25. On Tuesday, 20 November 2001, a meeting was held at the premises with Waran, Aldis Birzulis, Vince Hannan, Kerry Burgess, Byatt and Marcos. Agreement was reached between the parties that shoring of the Wall would be implemented using a number of raking shores. Later that day Birzulis provided a copy of the report from SMEC dated 20 November 2001 to Byatt. That report did not identify a risk of collapse to the Neighbouring Building. 26. Propping details continued to be discussed between the parties on 21 November 2001. 27. On Thursday, 22 November 2001 Byatt inspected the premises. At that time, several brick chases had been installed thereby exposing the vertical concrete face of the Neighbouring Building concrete footing. In two of the three chases exposed, Byatt observed that the concrete footing had been undercut. 28. At that time Byatt and Aldis Birzulis discussed whether the brick chases should be widened and deepened to allow the footing to be underpinned to the shale level as suggested by Byatt or whether a grout injection could be used instead as suggested by Aldis Birzulis. Vince Hannan advised Byatt that the footings for the shoring would be installed on the upcoming Saturday and that the shoring itself would be installed on the following Tuesday after the concrete had settled and cured. 29. On Friday, 23 November 2001, Byatt attended the premises again in the presence of Michael Grogan and noted that the shoring footing pads had been excavated and were reading for pouring. Byatt discussed with Michael Grogan the addition of concrete buttressing as well. 30. On Sunday 25 November 2001, the Wall collapsed. The Building was later demolished at the direction of the Police given the instability of the Neighbouring Building. No-one was present at the premises at the time of the collapse, although Marcos was driving to the Neighbouring Building at around the time of the collapse. 31. Chris Turner, an engineer employed by the WorkCover Authority, prepared a report into the collapse of the Wall. In his report dated 15 August 2003, he concluded that the following matters may have contributed to the collapse of the Wall: a) The decision to increase the size of the basement and therefore the extent of the excavation along the western boundary; b) The design of the brick underpinning without returns, buttresses, ground anchors or other temporary lateral restraint until the permanent columns and floors were constructed; c) The decision to remove the wall from above the underpinning, and thus removing the small amount of additional lateral strength and overturning resistance it provided, and the undermining of the collapsed wall when the wall's sandstone footings that had protruded under the collapsed wall were removed; d) The excavation and underpinning for over excavating and not having the existing foundation material inspected as required by Note 2 on the plan. e) The removal of the western wall of No 82 above the underpinning. . . . As a result of the Defendant's failings Michael Grogan and Andrew Brooking were exposed to risks to their health, safety and welfare. 8 For the defendant, Mr Aldis Birzulis swore an extensive affidavit detailing his personal background, the nature of the defendant and its business and significant projects in which he was involved as part of his professional career. Mr Birzulis also gave details of how he became involved in this project and the steps he took in relation to the location of test bore holes on the site in establishing the depth at which rock was expected to be encountered. At this stage he was in contact with the geotechnical engineer SMEC Testing Services Pty Ltd ("SMEC"). Mr Birzulis emphasised the following matters in his affidavit: (a) at the end of July 2001, the defendant wrote to the structural certifier raising, amongst other things, side support. In this correspondence the defendant noted that after excavation had reached an adjacent footing level the footings should be inspected by the geotechnical engineer and the defendant to determine if the footings required underpinning or were stable adjacent to the excavation without any further strengthening; (b) based on observations at Larkin Street and the lack of cracks in the neighbouring building Mr Birzulis assumed that the footings to the neighbouring building were founded on sandstone. He required an inspection by a geotechnical engineer and the defendant, following excavation, to check the accuracy of that assumption. His affidavit noted that it turned out that those assumptions were incorrect and there was up to one metre of clay beneath the footings; (c) also, later in July 2001, the defendant received a copy of the geotechnical report prepared by SMEC. The final comments noted that should the sub-surface conditions vary during construction from those inferred in the report, an experienced geotechnical engineer should review the design to assess if any alterations were required. In late August 2001, part of the structural drawings were released including a drawing headed "Basement slab plan and sections". The drawings showed the two proposed methods of underpinning or shoring the excavation and both methods were said to be common underpinning methods. There were notes on this drawing requiring the walls that were to be underpinned to be excavated to a five step procedure. The second note stated that existing foundation material was to be inspected and certified by a structural engineer or an approved geotechnical consultant before underpinning was to commence and the fifth note stated that subsequent to stage 2 of the underpinning as marked on the plan should not commence until a minimum period of two days had elapsed after completion of the previous stages; (d) on 11 September 2001, a revised drawing was issued dealing with further underpinning and adding three more notes, numbers 6, 7 and 8. Those notes stated that where the existing brick walls remain, to underpin the walls as per the typical detail; all new construction to be within the site boundary and proposed basement construction not to undermine adjacent walls or roadways. The purpose of the additional notes was to draw to the attention of the builder that if the western wall was to be retained then the neighbouring property should not be undermined; (e) on 10 October 2001, a further drawing was issued by the defendant as a revision showing all of the northern wall and most of the eastern wall were now being underpinned using the contiguous piling method. This drawing carried an additional note to the "typical underpinning detail" stating: "Note: new works not to encroache (sic) boundary line typical". 9 On 26 October 2001, Mr Hannan requested the defendant to inspect the work as underpinning was to start the following week. Mr Grogan from the defendant attended the site on 29 October 2001 and observed that the contiguous boring was complete along Sparks and Larkin Street and that the bulk excavation was complete for that side of the site but on the western side of the site benching remained. No underpinning work had commenced on the western wall at that time. Mr Grogan did not discuss the underpinning of the western wall with any person on site that day. 10 On 2 November 2001, Mr Birzulis received a telephone call from Mr Hannan who told him that underpinning next to Autohaus was well under way but that the owner of Autohaus had complained that the work was causing cracking to his building. Mr Birzulis was asked to inspect the site that day. This was the first notice that the defendant had received that underpinning on the western wall had started. Mr Birzulis and Mr Grogan attended the site that afternoon and were met by consultant structural and civil engineer Mr Byatt who was engaged by Mr Marcos. Mr Marcos and Mr Hannan were also present to inspect the Autohaus building. Mr Birzulis noticed a crack in one of the walls adjacent to the site but in his opinion this was a very minor crack. He was also shown a door which had become stiff which indicated there may have been some movement in parts of the Autohaus building. 11 During the same visit Mr Birzulis inspected the construction site next door including the underpinning which had been carried out on site. Mr Grogan informed him that this was the first time he had seen the underpinning on the western wall and that when Mr Grogan had been there previously this underpinning had not yet started. Mr Birzulis had not previously seen this underpinning. Mr Birzulis said he made the following observations concerning the underpinning of the western wall: (a) the underpinning had commenced without inspection by the defendant of the existing foundation material underneath the footing of the Autohaus building; (b) Mr Hannan had not arranged for a geotechnical engineer to inspect the foundation material underneath the footings of Autohaus; (c) around 75 per cent of stages 1 and 2 underpinning of the wall immediately adjacent to the Autohaus building had been completed; (d) the footings of the wall were 2 to 3 metres above the new ground level (that is, the newly constructed underpinning walls were about 2 to 3 metres high); (e) at least parts of the wall had retained sandstone footings but on other parts they had been removed; (f) some of the "stages" were considerably wider than the 1 metre prescribed by note 1 in the "Under-pinning detail of neighbouring property" shown in the drawings; and (g) there was clay at the level of the footing in the embankment remaining after the bulk excavation had taken place. 12 Mr Birzulis pointed out that the failure of the builder to arrange an inspection of the foundation material underneath the footings of the Autohaus building by the defendant or a geotechnical engineer prior to the commencement of the underpinning did not comply with note 2 of the drawings prepared by the defendant. He was also of the view that the speed at which the underpinning of the walls had been constructed meant that the builder had not complied with note 5 on the defendant's drawing. At the time of Mr Birzulis' visit to Autohaus he could not determine if the wall had been undercut and if so to what extent as he could not see behind the newly constructed underpinning walls. 13 Despite these shortcomings in the construction of the underpinning, Mr Birzulis formed the opinion that there was no immediate need for concern. The cracks were of a type routinely seen in a neighbouring property when an excavation has been carried out to the boundary and could have been caused by vibrational and minor temporary movement, a common event; he also was of the view that the best approach at that stage was to monitor the condition of the premises to see if any changes in the cracks developed in the following days and weeks. No active steps were required at that time and it was inappropriate to change the underpinning method midway through the process and that course itself might cause some irregularity across the wall which may lead to cracking or other damage of a long term and costly nature. In Mr Birzulis' opinion the most appropriate course was to continue construction as quickly as possible as the pouring of the ground floor slab would provide lateral support of the Autohaus wall. Mr Birzulis said that Mr Byatt agreed with this course of action. 14 Mr Birzulis expressed the view that if he had the opportunity to inspect the foundation material beneath Autohaus before construction of the underpinning he would have altered the design of the underpinning so that the Autohaus wall as well as the wall on the 82 Parramatta Road site would have been underpinned. That opportunity was not made available before 2 November 2001. At the site visit Mr Birzulis advised Mr Hannan that the underpinning had been done very quickly and may have caused problems but the best thing to do would be to continue with the construction as soon as possible as once the ground floor slab was poured there would be no further movement and that was the best way to prevent further cracks occurring. 15 On 5 or 6 November 2001, Mr Birzulis with Mr Grogan, Mr Burgess, Mr Hannan, Mr Marcos and Mr Byatt carried out an inspection of the site. Mr Marcos said that there was some further complaints in a slightly different area of the building. There was another door which was no longer opening without scraping. Mr Birzulis was of the view that underpinning the Autohaus wall at this stage would have introduced varying foundations and long term different movements giving rise to potential cracking and other structural problems. The answer was not to undo and redo the underpinning but simply to proceed with pouring the first floor slab. On 6 November 2001, the defendant briefed SMEC to prepare a report on the long term stability and settlement of the foundation material beneath the Autohaus wall. The following day SMEC were provided with photographs of the material behind the underpinning wall together with calculations by the defendant of the loads applied to the strip footing at the perimeter wall of the site. 16 On 20 November 2001, Mr Birzulis was informed that two further cracks had appeared in an internal wall of the Autohaus building and a site meeting was arranged for that day. He and Mr Grogan for the defendant were present together with Mr Marcos, Mr Byatt and Mr Burgess. Mr Marcos claimed that his building had been undermined by up to a metre and that he could see daylight through a crack in the slab. Mr Birzulis stated that this was the first indication that the defendant had received that there may have been undermining of the neighbouring property. He told Mr Marcos that if there was any undermining of significance he recommended that the cavity be filled with non-shrink grout as that would assist in preventing any short term movement and long term settling. Because that work would be on Mr Marcos' property the defendant needed his consent before that step could be taken. Mr Birzulis explained how this approach would bond with existing footings and provide a more stable foundation to the Autohaus building and would have strengthened the foundation material so as to minimise the risk of rotation of the existing footing. The agreement of Mr Marcos was necessary as the grout would set hard so that if Autohaus wished to excavate in the future it made it difficult to do so. If this move had been approved the grouting of the cavities could have been substantially completed in about two days. However, Mr Marcos did not given permission to the defendant to inject grouting. 17 In view of the complaint of undermining of Autohaus Mr Birzulis had a discussion with Mr Byatt after which he recommended to Mr Hannan that temporary shores or props at a 45 degree angle be installed to support the Autohaus wall until the ground floor slab had been poured. He proposed that steel shores be installed at each of the brick pier locations founded on a concrete pad footing excavated into the rock. Mr Birzulis also suggested some additional formed concrete columns be included in the design to assist in providing long term lateral support. He offered to design the raking shore and submit it to Mr Bytatt for his approval and also offered to revise the plans to include the columns. Mr Grogan prepared a detailed drawing for the raking shores later that day. On the same day the defendant received the SMEC report which was commissioned on 7 November 2001. A copy of the raking shores drawing and the SMEC report was sent by the defendant to Mr Byatt and Mr Hannan. Drawings were also issued that day containing the details for the additional formed concrete columns. 18 On 21 November 2001, Mr Byatt contacted Mr Birzulis and suggested that there should be a bulk connection at the top of the raking shore. Mr Birzulis adopted the suggestion and a revised sketch drawing was sent to Mr Byatt and Mr Hannan. On 22 November 2001, Mr Birzulis conducted a site visit to examine the holes where the shores were to be secured to the footings of the Autohaus wall. Mr Birzulis said he was concerned to see that the holes had been properly placed to ensure the shores supported the appropriate parts of the Autohaus wall. 19 On 22 November 2001 in the afternoon, Mr Byatt telephoned Mr Birzulis and told him that he had looked through the voids where the bricks had been taken away exposing the footings of the Autohaus building and had seen undermining in the order of 100mm beneath the footings - he had also seen loam. Mr Birzulis said that if that was so there may be some settlement and therefore it was a good idea to inject the void behind the walls with grout to ensure that settling did not occur. Mr Byatt said that he would have to discuss the matter with Mr Marcos. 20 Later, on 22 November 2001, Mr Birzulis visited Mr Hannan with the revised drawings and discussed the possible simplification of the raking shores by omitting the base plate and casting the shores directly into the concrete below. Mr Hannan said that the fabrication of the shores was under way and he expected them to be completed over the weekend and to have them in place by Tuesday of the following week and therefore did not want to change any of the details. It was decided to talk to Mr Byatt who said that he was concerned at seeing clay under the Autohaus footing and thought that the wall should be locally underpinned even after the raking shores were in position. Mr Birzulis again raised the issue of filling any void created by pumping in cement grout and was able to tell Mr Hannan that it would cost about $10,000 and be completed in about two days. Mr Byatt however said that he would have to think about that option and talk to Mr Marcos before he could allow that to proceed. 21 On 23 November 2001, Mr Grogan returned to the site and inspected the excavation for the pads for the raking shores. One excavation had to be drilled further because of stronger rock being encountered but Mr Grogan observed that all the other pads had been excavated and were ready for pouring. 22 Mr Birzulis was told on Sunday afternoon, 25 November 2001, that the Autohaus wall had collapsed. He attended the site and remained there for several hours while he watched the Autohaus building being demolished. He had informed the police that the Autohaus facade, which he anticipated had a heritage listing, was solid enough to remain but police advised him that they had already received advice that the entire building be demolished but would have been prepared to act on his advice if he had been there earlier. The defendant remained the structural consulting engineers for the project after the collapse of the wall including the clean-up of the site and the final construction of the development. Mr Birzulis said that there had been co-operation with the WorkCover Authority inspectors at all times. 23 The defendant had been the subject of two claims for damages in the Supreme Court following the collapse of Autohaus and those matters had been resolved after mediation. The defendant's professional indemnity insurance had dramatically increased from a premium of $35,000 for a policy with a $10,000 excess to a premium of $135,000 for a policy with a $100,000 excess. Although for 90 per cent of the time the defendant's employees work in the defendant's office, the defendant was now aware of the greater exposure to occupational health and safety issues lying with engineers when they inspected building sites. The defendant now ensures that all employees including engineers attending site visits have obtained the requisite permit which is obtained by attending courses and participating in examinations arranged by the Master Builders Association. The defendant had always ensured that its employees carrying out site visits were provided with appropriate safety equipment including safety shoes, hard hats and reflective vests. DELIBERATION 24 In addressing the objective seriousness of this offence the defendant pointed to the fact that a combination of circumstances had limited the ability of the defendant to assess and then address the stability of the Autohaus wall next to the building site. Mr Birzulis had made an assessment that there was sandstone rock close to the surface and had inserted notes in the drawings calling the builder's attention to the need for inspections by either the defendant or a geotechnical engineer before underpinning commenced and that underpinning should not commence until after sufficient time had been allowed for the earlier stages to dry and settle. The builder had clearly ignored both these notes and the later note warning against excavating under the Autohaus wall. These actions by the builder meant that the defendant's assumptions about the material under Autohaus were not able to be verified as proposed in the notes accompanying the drawings. The defendant had only been called to the site after these necessary steps had not been complied with by the builder and where cracking had first started to appear. Even at this stage the cracking was not of such severity as to warrant a new approach to underpinning and the defendant had taken steps to obtain a report from a geotechnical engineer and had provided that report to Mr Marcos of Autohaus. The defendant's advice to continue as quickly as possible the pouring of the first floor slab as that would support of the neighbouring wall was agreed to by Mr Byatt for the Autohaus interests. These views had been passed on to Mr Hannan with the intention of having the ground floor slab poured as soon as possible. In addition, Mr Birzulis had offered, on a number of occasions, to inject grouting under Autohaus to fill the voids and to provide stability but this had not been agreed to by Mr Marcos. The proposal to use raking support had been proposed by the defendant and the defendant had accepted amendments to the design proposed by Mr Byatt. All of these matters, it was submitted, demonstrated that the defendant had undertaken the work with care, had addressed the issues as they arose and had proposed appropriate responses and had been pro-active in giving advice to prevent problems arising to prevent problems worsening. 25 It was further submitted that a number of other factors were relevant in assessing the culpability of the defendant: the defendant was a consultant engineer for the site whose role was to advise but not to make final decisions - that lay with the builder. The undermining problem as opposed to underpinning proposals did not arise until 20 November 2001 and was raised by Mr Marcos - this was a new problem and was promptly addressed; the charge was brought under s 8(1) and was limited to the risks posed to the employees of the defendant who were not on site full time but for very limited periods as set out in the particulars; the charge related to a specific period, namely, between 2 and 23 November 2001 and did not include the day the wall collapsed and therefore did not encompass that event. In these circumstances it was suggested that this offence properly fell within the lower range of penalties. 26 The prosecutor submitted that the defendant's approach had to be assessed against the fact that on 2 November 2001 it had become aware that at least two of its notes to the drawings had not been complied with by the builder, that the builder had proceeded at too quick a rate and had made it impossible for visual observation of the foundation material under the Autohaus wall by the defendant or a geotechnical engineer. There was no acceptable explanation as to why at this time temporary support of the Autohaus wall was not proposed and executed. The geotechnical engineering report requested by the defendant on 7 November 2001 was not accompanied by a request for a site inspection nor was the geotechnical engineer informed that cracking had been experienced in the Autohaus wall. This was clearly of great significance as the WorkCover Authority discovered. The defendant did not seem to be moved by the ongoing concerns of Mr Byatt, himself a qualified engineer, but simply opted to encourage the ground floor slab being poured as soon as possible to give support to the wall in preference to undoing and redoing the underpinning. 27 I accept the defendant's submission that this was not a case of an onsite engineer failing to make appropriate professional assessments of the support needed for the adjoining wall at the building site. I also accept the submission that the assessments made, as outlined, appear to have been appropriate in the circumstances and show a commitment to achieving a safe site and a stable adjoining wall to that site. Nevertheless, the grouting proposal to Autohaus had down sides for that business and Mr Birzulis seems to have accepted that that as a legitimate concern. While it might have provided the defendant and the builder with a quick option, the Autohaus interest cannot be criticised for not immediately accepting it. The essence of the charge is that there was a failure to erect a temporary support for the western wall on this site and that was a step that could have been taken on 2 November 2001. It remained a step that could have been taken between 2 November and 23 November 2001 and there is no suggestion in the evidence that the temporary support had to be of the type proposed to be inserted on the week following the Sunday collapse of the wall. I do, however, accept the defendant's submission that in assessing the objective seriousness of the offence both the relatively short period specified in the charge, the relatively short period of attendance by employees of the defendant at the site and the nature of the defendant's control being limited to proffering professional advice are matters appropriate to be taken into account. The evidence does not go so far as to say why the wall fell on this particular day rather than during the period 2 November to 23 November 2001 as covered by the charge but the surrounding circumstances demonstrated that the risk was present of collapse of a significant wall next to a building construction site: the breach is therefore properly to be regarded as serious. 28 There were aspects of the builder's conduct raised in this matter that were not raised in the hearing on penalty for the developer of 82 Parramatta Road. Nevertheless, I consider that the present defendant is marginally more culpable having regard to its expertise in this area and its failure to adopt temporary support on 2 November 2001 when the builder's omissions were exposed. 29 General deterrence is a consideration having particular significance for the building and construction industry. This case demonstrates the need for preventive action being taken quickly to ensure the safety of employees at work even though other engineering options in the slightly longer term also offer protection. Specific deterrence is also a consideration in this case as the defendant continues to employ people who, as part of their duties, are required to visit a construction site during stages where excavation and other work is likely to render surrounding areas less stable than is normal or may be finally achieved when the building is completed. 30 Although the defendant drew attention to damages cases arising from the collapse of the wall and the significant increases which followed in professional indemnity insurance, there was no submission that there was an inability to meet any fine imposed by the Court or that an appropriate fine threatened some aspect of the business. 31 In relation to subjective factors, the prosecutor accepted that there was an early plea having regard to the fact that the further Amended Order was handed up at the beginning of the hearing and was pleaded to by the defendant. I accept that is an early plea and that it should attract the maximum discount of 25 per cent. The defendant commenced business in 1989 and has employed a number of people in professional capacities which nevertheless takes them onto building sites and exposes them to danger in their workplace. Over this time the defendant has not previously come to the attention of the WorkCover Authority and has no record of prior convictions under the Occupational Health and Safety Act. That record reflects the defendant's attention to occupational health and safety and speaks of its good industrial citizenship. In addition, there was co-operation with the WorkCover Authority during the course of its investigation. Having regard to those matters there should be a further discount of 10 per cent bringing the discount allowed on penalty to a total of 35 per cent. ORDERS 32 The Court makes the following orders: 1. The defendant is found guilty of the offence under s 8(2) of the Occupational Health and Safety Act 2000, to which it pleaded guilty to the further Amended Application for Order in Matter No IRC 6252 of 2003. 2. The defendant is fined the sum of $91,000 with moiety thereof to the prosecutor. 3. The defendant is to pay the costs of the prosecutor in the agreed sum of $12,396.79. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.