Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Mason v Telecommunications Infrastructure Pty Ltd [2005] NSWIRComm 282 PROSECUTOR: Inspector Gary Mason PARTIES: DEFENDANT: Telecommunications Infrastructure Pty Ltd (ACN 095 983 207) FILE NUMBER(S): IRC 5614 of 2004 CORAM: Schmidt J Occupational Health and Safety - prosecution under section 8 of the Occupational Health and Safety Act 2000 - worker injured whilst dismantling a guyed telecommunications mast - early plea of guilty - substantial discount - general deterrence - defendant guilty of offence charged - fine imposed - moiety to prosecutor - leave to approach for final orders as to costs CATCHWORDS: Occupational Health and Safety Act 2000 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 CASES CITED: Inspector Cooper v Angelucci & Ors [2005] NSWIRComm 262 Inspector Jurmann v Port Kembla Copper Pty Ltd [2004] NSWIRComm 150 HEARING DATES: 08/02/2005 DATE OF JUDGMENT: 08/11/2005 PROSECUTOR: Ms P Lowson of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr GJ Hatcher SC with Ms P McDonald of counsel SOLICITORS: Thomson Playford JUDGMENT: - 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J 11 August 2005 Matter No IRC 5614 of 2004 INSPECTOR MASON v TELECOMMUNICATIONS INFRASTRUCTURE PTY LTD Application under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 282 1 In May 2003, Mr Jeremy Keepa-Hunuhunu was seriously injured while working with two other employees of the defendant, demolishing a telecommunications mast at Moree. Mr Keepa-Hunuhunu was working on the mast, 12 metres above ground level during the demolition. The mast was then attached to three guy wires. Mr Keepa-Hunuhunu fell with the mast, after his supervisor detached one of the guy wires. The defendant entered a plea of guilty to the charge consequently brought against it under s 8(1) of the Occupational Health and Safety Act 2000 ('the Act'). This judgment deals with penalty and costs. 2 The charge to which the plea was entered provided: DID FAIL Contrary to S.8(1) of the Occupational Health & Safety Act 2000 to ensure the health, safety and welfare at work of its employees including Jeremy Keepa-Hunuhunu ('the worker') in that the worker whilst in the course of dismantling a guyed telecommunications mast ("the work") and whilst he was attached to the mast by means of a safety harness at a height of about 12 metres above ground level, the remaining 12 metre section of the mast toppled to the ground in an uncontrolled manner with the worker landing on top of it and as a consequence of which he sustained multiple and serious injuries by reason that: 1. The defendant failed to provide and maintain a system of work that was safe and without risk to health in that: (a) it had conducted no proper risk assessment for the conduct of the work; (b) the defendant's Safe Work Method Statement ('SWMS') for the work did not identify the risk of the lowest section of the mast collapsing if any of the guys supporting it were disconnected; (c) the conduct of the work with the worker harnessed to the mast in a vertical position after one of the guys supporting the lowest section of the mast was disconnected, was unsafe; (d) the conduct of the work involved the worker being at risk of falling from a height of more than two metres when the defendant had failed to properly control such risks associated with falls from a height as required by clause 56(1) of the Occupational Health & Safety Regulation 2001. 2. The defendant failed to provide such information, instruction, training and supervision in relation to the conduct of the work involving the dismantling of the mast such as was necessary to ensure that worker's health and safety, PARTICULARS OF WHICH ARE AS FOLLOWS : A. The defendant was at all material times an employer. B. At all material times the defendant employed the worker as a rigger. C. At all material times the worker was carrying out work involving the dismantling of the mast pursuant to his employment with the defendant. D. At all material times the worker when conducting such work was harnessed to the mast at a distance approximately 12 metres above ground level. E. On 29 May 2003 the worker sustained serious personal injuries when the section of mast to which he was attached toppled over and the worker fell with it a distance of some 12 metres to the ground landing on top of the mast and suffered multiple injuries, including head injuries and fractures to various parts of his body. 3 The agreed statement of facts provided: 1. At all material times the prosecutor was an inspector duly appointed under Division 1 of Part 5 of the Occupational Health & Safety Act 2000 and empowered under s106(1)(c) of the said Act to institute proceedings in the within matter. 2. At all material times the defendant, was a company duly incorporated and having its registered office at 70 Trenerry Crescent Abbotsford in the state of Victoria. 3. At all material times the defendant was an employer. 4. At all material times the defendant employed Jeremy Keepa-Hunuhunu ('the worker') as a rigger. 5. At all material times the defendant traded under the name of Quantum Communications & Construction, a registered business name. 6. At all material times the defendant was engaged in the maintenance, erection and dismantling of telecommunication masts and towers. 7. John Holland Pty Ltd [ACN 004 282 268] ('John Holland'), had entered into a contract with Vodafone Network Pty Ltd [ACN 081 918 461] ('Vodafone') to demolish an existing telecommunications mast and erect a new mast on a property known as "Koorool", being Lot 11 off Tarrawingee Road, off Greenbah Road, Moree in the state of New South Wales ('the site'). 8. John Holland engaged the services of the defendant in order to conduct works at the site involving, among other things, the demolition or dismantling of the existing guyed telecommunications mast. Details of the services to be provided pursuant to the sub-contract between the defendant and John Holland were set out in the purchase orders no. T559/000142 dated 9 October 2002, T559/100039 dated 21 February 2003 and T559/100038 dated 21 February 2003. 9. The existing mast to be dismantled was also 80 metres in height prior to being dismantled and was a triangular guyed mast. 10. On 27 and 28 May 2003 three employees of the defendant, Richard Ngatai, the supervisor, Daniel Robins, and the worker, were engaged in dismantling the mast. 11. A Safe Work Method Statement being Form No. QTM-2F-09-2B ('the SWMS') was prepared for the job by the defendant. The SWMS did not detail any sequence arrangements for the removal of the guy wires during the dismantling process. It further did not identify any risk associated with the removal of the last set of guy wires attached to the mast closest to the ground. This SWMS was signed off by all three workers including the injured worker on 27 May 2003. 12. The defendant did not undertake an adequate risk assessment of the work involved in dismantling the guyed mast. 13. At all material times the dismantling procedure involved utilisation of a gin pole and a double drum winch to lower sections of the mast to ground level. 14. A gin pole is a vertical latticed structure with a small jib attached at the upper most point and the jib has two pulleys attached to it. The gin pole is secured to the structure (ie, the mast) to be demolished and the sections of the structure can then be lowered utilising a winch which is positioned at ground level. The winch was also used to raise or lower the gin pole as the structure was being dismantled. 15. Work on the dismantling of the mast which took place on 27 and 28 May 2003 involved the removal of the upper sections so that on the morning of 29 May 2003 that section of the mast which was still standing was only 27 metres in height. 16. On the morning of 29 May 2003 two 6.24 metre sections of the mast were lowered leaving approximately 15 metres of the mast still standing. 17. The gin pole was then lowered and secured to the mast in order to enable the next section to be dismantled. At this time the decision was taken to lower a single 3.12 metre section because the set of guys were attached to the top of the next 3.12 metre section below it. The worker was attached to the mast at this time with a safety harness at the 12 metre level, that is, at the top of that next 3.12 metre section. 18. While the worker was attached to the mast at the 12 metre level, Ngatai took the tension off the north-west guy wire Then released the flexible steel wire rope puller then passed it over the cable carrier that was adjacent to the mast. 19. Around the same time Robins was setting up the flexible steel wire rope pullers on the east and south-west guy wires so that they also could be released. In doing so he had taken the strain with the pullers and then went over to the base of the mast. He detached the guy wire from its permanent anchors still leaving the flexible steel wire rope puller in place holding the guys. 20. At about 9.15am about 2 hour after the north-west guy wire had been released, while Ngatai was operating the winch on the ground and in conjunction with the worker, they were lowering the 3.12 metre section of the mast, ie, that section from the 15 metre mark to the 12 metre mark and while carrying out this work the remaining 12 metre section of mast which remained standing up until that point, then fell in a southerly direction in an uncontrolled manner with the worker still attached to it at the 12 metre mark. 21. The worker sustained multiple injuries when the mast toppled which injuries included injuries to the face and head, fracture of the left arm above the elbow, fractures to the ribcage on the right side, a punctured lung and a punctured diaphragm and as a consequence of the worker's injuries, he was rendered unfit to perform his normal work for a period exceeding seven days immediately following the incident. 22. The defendant did not provide to the worker adequate information and instruction in the dismantling work, such as to ensure the worker's health and safety in the performance of his duties in dismantling the mast. 23. The worker was off work from 29 May 2003 to early October 2003, approximately four months. When he returned to work he was only working two days a week on restricted duties, building up to three, four and five days a week over a 12 month period returning to full duties in October 2004. 24. The worker has lost up to 70% of strength in the left side of his body. He is still having trouble lifting objects. He finds that he has to work a lot slower because of his injuries. He is continually frustrated because he cannot carry out all the duties he performed prior to the accident. 25. While the worker was recovering from his injuries the defendant had sought and supplied accommodation close to the hospital where he was receiving treatment. They also flew in members of his family from interstate while he was convalescing. The defendant stayed in contact with him during the time he was off work and there was no pressure for him to return to work. 26. During the investigation the informant found the defendant very co-operative in regard to access to the injured person and witnesses for the setting up of interviews. The defendant supplied a room for the interviews on the Central Coast noting that the informant had to travel from Narrabri. 4 The prosecutor accepted that the plea had to be understood as a plea to an offence of the kind falling within paragraph 22 of the agreed statement, which departed somewhat from the detail of the charge laid. It was common ground that the maximum penalty for this first offence was $550,000. 5 Various other documents were tendered and evidence was called from Mr Timothy Robert Fleming the Health, Safety, Quality & Environment Manager of GridComm Pty Ltd, of which the defendant is a subsidiary. Mr Fleming was not required for cross-examination. The parties' respective cases 6 The case advanced by Ms Lowson of counsel for the prosecutor was that the offence here in question was a serious one, given the obvious and foreseeable risks in question. The evidence showed that the risk assessment process in place at the time of the accident failed in this instance to identify the risk which materialised - the dismantling of the bottom part of the tower which fell, when one of the three guy ropes essential to the support of the tower was removed. The assessment process envisaged that the work would be broken down into the required steps and the hazards associated with each step identified and addressed. In this case, the work method statement was flawed, in failing to deal at all with this aspect of the work. Other aspects of the assessment form were also incomplete. 7 While the prosecutor did not cavil with the evidence that the defendant was not an employer which had no regard to safety or had no safety systems in place, the evidence showed that the predominant mechanism for ensuring safety, the risk assessment process, on this occasion was not applied appropriately. The evidence also showed that the defendant had later improved its documentary procedures - overhauling its manual and developing more detailed directions and better cross referencing procedures and applicable regulations, as well as undertaking extensive retraining of staff, including in relation to the hazard not identified in this case. The risk assessment process had also been revised to ensure that all employees working on a particular task were involved in risk assessment, together with the supervisor. 8 The changes themselves showed significant improvements to practises and procedures, although it was suggested that more should be done in respect of the particular hazard here in question. Namely, ensuring the stability of a mast while being demolished, so that an uncontrolled topple while a worker is on the mast, could not occur. It was accepted by the prosecutor that these steps could be taken into account in mitigation, but it was argued, plainly should have been taken beforehand, so that safety was ensured. 9 The evidence showed the experience of the employees involved in the accident. It was submitted that although the supervisor responsible for the action which gave rise to the risk could not explain what he had done, the law made employers responsible for the acts of careless employees. The absence of a risk assessment which identified this risk and made the employees performing the work, including the injured worker, aware of the risk, was relevant in that context. The absence of appropriate instruction so as to ensure safety was also relevant. 10 It was argued that the evidence made the conclusion that the offence was a serious one unavoidable. The plea should be regarded as one entered by a defendant accepting the inevitable. Penalty should be commensurate with the range available in this jurisdiction, despite the evidence that the Inspector initially took the view that the offence should be prosecuted before the Chief Industrial Magistrate. (See Inspector Jurmann v Port Kembla Copper Pty Ltd [2004] NSWIRComm 150.) 11 The case advanced by Mr Hatcher SC, appearing with Ms McDonald of counsel for the defendant, was that the defendant accepted that it had committed the offence charged, given the failure to adhere to the safety procedures it had put in place, but, nevertheless, sought to draw a distinction between the seriousness of the incident which had occurred and the offence which it had committed. 12 It was accepted that the risks posed to a worker falling from a height of 12 metres were obvious, but it was argued that this exposure to the risk had not resulted from the procedures in place, but from the actions of the workers' supervisor inexplicably rendering the structure unstable. The consequences of moving a support from a supported structure was submitted to be a fundamental aspect of a rigger's training. Riggers must always consider what is holding a structure up, particularly when the structure is to be removed. This required that there be individual assessment of each particular job, as the defendant's procedures required. In this case, it was proposed that the guy ropes be replaced by rope, which were to be tightened to allow the guy ropes to be released. For unknown reasons the guy rope was released by the supervisor without the rope being tightened. 13 The defendant argued that the nature and quality of the offence had to be approached from a consideration of the offence charged and had to be assessed in the light of the evidence as to this defendant's approach to its obligations under the Act. Clearly, on this occasion insufficient attention was paid to ensuring that the safety procedures in place were adhered to. 14 Nevertheless, the evidence showed that the defendant's approach had been successful in preventing accidents up to this point, in an industry notorious for the risks posed to workers. The evidence showed that the defendant was keenly aware of its obligations. It accepted that its established safety systems had not been properly implemented on this occasion, a matter for which it accepted responsibility, but, nevertheless, the evidence also showed that it sought to have in place procedures which ought to have precluded this risk arising. The defendant had also taken what steps it could to improve its systems afterwards. The fact that there were improvements afterwards did not, however, establish the existing systems were unsatisfactory before. The procedures were not followed with the rigour necessary and the steps taken were designed to ensure this always occurred. 15 Consideration also had to be given to the evidence that the accident had resulted from an experienced rigger, the supervisor on the job, inexplicably taking an action which had given rise to the risk in question. Even Mr Ngatai could proffer no explanation for what he had done. It could not be said that closer attention to the safety procedures would have prevented Mr Ngatai acting as he did, to render a stable structure unstable. Nevertheless, it was accepted by the defendant, that it might have done and so the plea was entered. 16 This, together with the steps taken by the defendant to address the deficiencies in its systems which had been revealed by the accident, demonstrated that the offence was not as serious as the prosecutor had argued and meant that specific deterrence ought to have but little role to play in the penalty imposed. This defendant was plainly aware of its obligations. This, it was argued, was confirmed by the recommendations of the prosecuting inspector and two superiors, made after the WorkCover investigation, that a prosecution should be launched before the Chief Industrial Magistrate. 17 It was also argued that it could not be concluded that the defendant had entered a plea merely because it accepted the inevitable, so as to effect the discount in penalty which might otherwise flow. Every element of co-operation with the Authority and assistance to the injured worker had been provided, as well as all available steps being taken to ensure compliance with its statutory obligations. In this respect, I note also that the prosecutor confirmed that it was not suggested that its submissions in this respect impacted on the discount for the utilitarian savings properly flowing from plea. Consideration 18 Consistently with the Crimes (Sentencing Procedure) Act 1999, the determination of sentence in a case such as this must be approached from a consideration of the nature and seriousness of the offence in question, together with aggravating and mitigating factors. 19 There can be no doubt of the seriousness of the risk to which Mr Keepa-Hunuhunu was exposed. His extensive injuries made that evident. Indeed, he was fortunate that the consequences of a fall from a height of 12 metres were not more serious. An assessment of the nature and seriousness of the offence requires consideration of all of the evidence, including, as the defendant accepted, the obvious foreseeability of the risk to which Mr Keepa-Hunuhunu was exposed and the steps available to have protected him from that risk. In one sense, those steps were of a simple kind - ensuring that one of the three guy ropes keeping stable the 12 metre remnant of the mast which was being dismantled, was not released while Mr Keepa-Hunuhunu was working on the mast, attached by a safety harness. That it was the supervisor on the job who inexplicably took this step, also cannot be overlooked in assessing the nature and seriousness of the defendant's offence. 20 In assessing the nature and seriousness of the offence, it is also relevant to take into account, that this offence was not committed by an employer who had been unmindful of the obligations imposed by the Act. Mr Fleming's unchallenged evidence showed a serious attempt to ensure that those obligations were met. 21 The defendant, however, accepted properly, that on this occasion, what it had set out to achieve had failed. The system established to ensure that work such as this was not undertaken, without a proper risk assessment having been undertaken failed in a number of respects. Firstly, the risk which materialised was not identified; secondly, the risk assessment process was not properly followed by the supervisor who conducted the assessment and thirdly, the assessment was not provided to the contractor, for its consideration, as the process envisaged. 22 The defendant argued that the risk of removing a support from a supported structure was so obvious, that it was not one which would necessarily have been separately dealt with in the risk assessment process, given the experienced trained riggers performing the work. In addition, it was relevant that it was Mr Ngatai, the supervisor on the job, trained and experienced in the rigging work undertaken, who inexplicably took a step which exposed Mr Keepa-Hunuhunu to serious risk of injury, which regrettably materialised. As the defendant accepted, the risk was obvious. The evidence showed that Mr Ngatai was, himself, unable to explain why he had acted as he had, recognising that it was this step which had given rise to the risk in question. As the defendant accepted however, employers have obligations under the Act to ensure safety, even in the face of negligence or inadvertence by employees such as Mr Ngatai. 23 Also of relevance was the evidence of the steps taken by the defendant after the accident. It conducted its own investigation of the accident; established what had occurred and considered how the risks revealed could be addressed. It plainly gave the WorkCover Authority very considerable assistance by the approach adopted. The defendant also revisited its safety procedures to address ways in which its documentary safety material could be improved. The system of risk assessment was also revised, so that external supervisors, as well as all those working on a particular job, were all involved in the assessment itself, rather than the workers simply being required to implement the safety measures identified as necessary to address potential risks. Retraining of the workforce was undertaken, including in the particular risk which had here arisen, as well as the introduction of new safety audit measures. This included spot safety audits undertaken up to general manager level. 24 It has to be observed that this defendant's approach to safety was commendable and illustrative of the kind of proactive approach which the legislation requires, but which so often in prosecutions for offences under the Act, is shown to be absent. Regrettably, this is another case which demonstrates that even proactive employers must be eternally vigilant to ensure that their employees, even supervisors, do not pay mere lip service to the safety measures which have been provided for the safety of workers. 25 Ensuring that even a trained and experienced supervisor does not negligently expose a fellow worker to risk of the most serious and obvious kind, is also required, difficult though that might be in a particular case. An inexplicable departure from safe practice in such a case might be difficult to foresee and guard against. The employer ensuring that there is always proper adherence to risk assessment processes by all those involved, is one practical way in which safety is kept at the forefront of the minds of those directly concerned and ultimately affected, if safety is not ensured. As Boland J recently observed in Inspector Cooper v Angelucci & Ors [2005] NSWIRComm 262 at [27]: I would add this observation, however: The proposition that a work method statement may not have avoided the risk may understate the importance of such a statement and may portray it as merely a chore that has to be completed for its own sake. The value of making a work method statement lies in the investigation, consultation and consideration involved in compiling such a statement that assists in identifying the risks and putting in place procedures to avoid the risks. The preparation and promulgation of work method statements are to be taken seriously. It should not be a matter of taking a statement relevant to a past job, for example, and doing a cut and paste and posting the result on the site notice board. All workers on the site should be left in no doubt about the necessity for strict adherence to work method statements and frequent inspections need to be undertaken by those with a responsibility for health and safety to ensure the work method statement is being adhered to. 26 These observations may also be applied to risk assessment procedures. 27 Also of relevance is the assistance provided to Mr Keepa-Hunuhunu after the accident. The evidence showed that this was also of a most exemplary kind. Considerable financial and practical assistance were provided to he and his family, while he underwent considerable treatment for his extensive injuries, recuperation and rehabilitation. Once he had recovered sufficiently to return to work, Mr Keepa-Hunuhunu was engaged on a full-time basis, the defendant restructuring its workforce to provide him with a supervisor's position, he having been only employed as a casual rigger at the time of his accident. 28 In light of all of the evidence, I am unable to accept the submission that in this case, any discount on sentence must be affected by the fact that the plea was entered in recognition of the inevitability of a finding of guilt. In my view, the entry of the plea was consistent with the defendant's ongoing approach to its obligations. I accept that the evidence demonstrated the defendant's genuine contrition and remorse, rather than a mere recognition of the inevitable. In my view, this must be reflected in a discount in the penalty otherwise imposed. 29 The defendant also accepted that general deterrence was a matter which had to be taken into account in determining penalty. I agree, given the nature of the industry in which the defendant is engaged and the risk to safety which materialised in this case, from the work undertaken. As the defendant accepted, given the dangerous nature of the work which it undertakes, in this industry, the importance of such deterrence cannot be understated. 30 The defendant, however, argued that there was no need for specific deterrence to feature in the penalty imposed in this case, given both its approach to its obligations before this accident and how it responded to deal with the risk which had been revealed. The Full Court has observed that it will be a rare case where that will be so (See Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [77].) 31 As I observed earlier, I take the view that the defendant's approach to its obligations under the Act was commendable. Nevertheless, as the defendant accepted, in this instance that approach fell short of the high standards imposed by the Act. I accept, in light of all of the evidence as to these factors, that specific deterrence has a lesser role to play than it would have done in the absence of such an approach, but am unable to exclude it entirely as an element in determining penalty, given the evidence as to the failures which resulted in the risks to safety here materialising. That is, a failure in ensuring adherence to the safety measures the defendant had implemented. The penalty imposed must draw attention to the necessity for ensuring that this does not occur again. 32 I am also satisfied that the defendant is entitled to a substantial discount in the penalty imposed, given its early plea and the utilitarian savings which resulted. In this respect, I have adopted the approach discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31]. 33 Having weighed all of the various matters I have mentioned in relation to the nature and seriousness of the offence and the aggravating and mitigating factors, I have concluded that the fine which must be imposed is $71,250. I have reached that conclusion given the maximum penalty imposed for this offence and having in mind the observations of Marks J in Port Kembla Copper Pty Ltd at [32] - [36], with which I agree. The penalty imposed is higher than that imposed by Boland J in Angelucci & Ors, upon which the defendant sought to rely by way of analogy. It is, nevertheless, in my view appropriate in light of my assessment of the nature and seriousness of this offence, balanced with the other matters I have mentioned. Orders 34 For all of the reasons given, I find the defendant guilty of the offence charged and enter a conviction accordingly. The defendant is ordered to pay a fine of $71,250 with a moiety to the prosecutor and the prosecutor's costs, as agreed or assessed by the Court. The parties have leave to approach the Court for final orders as to such costs. ------------------------ 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.