Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Howard v ACN 002 593 615 Pty Ltd formerly known as Winterton Constructions (NSW) Pty Ltd [2002] NSWIRComm 355 PROSECUTOR Inspector Dennis Howard PARTIES : DEFENDANT ACN 002 593 615 Pty Ltd formerly known as Winterton Constructions (NSW) Pty Ltd FILE NUMBER: IRC 8047 of 2001 CORAM: Marks J CATCHWORDS : Occupational health and safety prosecution - Plea of guilty - Fine imposed. LEGISLATION CITED : Occupational Health & Safety Act 2000 HEARING DATES: 12/10/2002 DATE OF JUDGMENT: 12/18/2002 PROSECUTOR Mr R Reitano of counsel SOLICITORS WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson SC SOLICITORS Carroll & O'Dea JUDGMENT: - 1 - INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 18 December 2002 Matter No IRC 8047of 2001 INSPECTOR DENNIS HOWARD v ACN 002 593 615 PTY LTD formerly known as WINTERTON CONSTRUCTIONS (NSW) PTY LTD Prosecution pursuant to s 17(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 The defendant ACN 002 593 615 Pty Ltd formerly known as Winterton Constructions (NSW) Pty Ltd has been charged by the prosecutor an Inspector with the WorkCover Authority of New South Wales with a breach of section 17(1) of the Occupational Health and Safety Act 1983 ("the Act"), and has pleaded guilty to that charge. This judgment is confined to the imposition of a penalty. 2 An agreed statement of facts was tendered in the proceedings in the following terms: "1. At all material times, the Prosecutor was duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered by Section 106 of the said Act to institute proceedings in this matter. 2. At all material times the Defendant, ACN 002 593 615 Pty Ltd formerly known as Winterton Constructions (NSW) Pty Ltd [ACN 002 593 615], was a company duly incorporated with its registered office situated at Unit 4, 20 Montgomery Street, Kogarah in the State of New South Wales. 3. On 20 December, 1999, at premises situated at 15-17 Kalinya Rd Newport, in the State of New South Wales ("the Site") the defendant failed to ensure that non-domestic premises, of which it had to any extent control, which had been made available as a place of work to non-employees, and in particular Bo Goran Orklin, Ljubo Kuzumilovic and Chris Loftus, were safe and without risk to health, contrary to section 17(1) of the Occupational Health and Safety Act 1983. 4. Some time in 1999, Winterton Constructions Pty Limited ("Winterton") entered into a contract with a company known as Newport Developments Pty Ltd to build townhouses, to a design prepared by an architect, at the Site. 5. At all material times the defendant entered into contracts and placed purchase orders on behalf of Winterton. 6. At the Site, Winterton and the defendant were engaged in building seven townhouses in one single line all under one roof over three levels. 7. At all material times, Winterton was the head contractor at the Site. The defendant placed purchase orders for supply and the defendant placed sub-contract agreements with contractors for the performance of work on the project. 8. At all material times Winterton and the defendant had one director who was the same. The director was also the company secretary of both companies. The shareholders of the defendant held all their shares for the benefit of Winterton. In substance and in truth the two companies had the same ultimate shareholders, directors and officers. 9. The building of the townhouses by Winterton commenced well prior to December 1999 and continued on and after 20 December 1999. The defendant entered into a number of contracts with individuals and corporations prior to and after 20 December 1999 in relation to the work that was or was to be undertaken at the Site. 10. In or about the middle of 1999 the defendant entered into a contract with Tatdap Pty Ltd ("Tatdap") to provide the services of Mr Bo Goran Orklin to manage and administer all aspects of the Site including the co-ordination of other sub-contractors, quality assurance and programming on Site, general communication between all personnel at the Site and reporting to the construction management of the defendant on aspects relating to occupational health and safety at the Site. Tatdap was a company of which Mr Orklin was a director and shareholder. Mr Orklin worked full time at the Site for about six months prior to 20 December 1999. 11. The defendant also entered into other contracts with other corporations and individuals who were to provide goods and services and perform work at the Site. 12. During the morning of 20 December 1999 a load of timber was delivered to the Site by Mr Chris Loftus who was a truck driver employed by Timber Corporation Pty Ltd trading as Harper Timber ("Harper Timber"). Harper Timber was a corporation the defendant had entered into a contract with, or placed a purchase order with for the purchase, supply and delivery of timbers to the Site. On the same day, a second load of timber was delivered to the Site by Mr Terrence Lappin who was sub-contracted to Harper Timber. 13. At some time between about 7.15am and 8.00am on 20 December 1999 Mr Loftus had a conversation with Mr Orklin. During the conversation Mr Orklin told Mr Loftus that the timber would have to be delivered to the landing in the side of the street. When Mr Lappin arrived, Mr Loftus informed him that he had spoken to Mr Orklin who had requested that the timber be taken around the corner and put up on the elevated slab on the first floor in the middle (where townhouse number 4 was located) of the townhouse constructions. 14. Mr Loftus and Mr Lappin then drove their truck to where they were instructed the timber was to be placed. Mr Lappin parked his truck in the driveway so that the crane on the truck was in place to lift the timber and place it on the first floor concrete balcony of townhouse number 4. 15. At the time that the timber was being lifted, Mr Orklin and Mr Kuzumilovic (a carpenter who was contracted to the defendant or to Winterton) and Mr Loftus all stood on the first floor balcony to receive the bundle of timbers. The first floor balcony was approximately two to three metres above ground level. The first bundle of timber was lifted without incident. 16. When the second bundle of timber was being lifted and was in mid air between the tray of the truck and the balcony it began to swing towards the edge of the concrete balcony. At that time Mr Orklin then attempted to stop the load from striking the building. He stepped onto the bundle of timber that he had already placed on the balcony. He attempted to move himself around the wall from balcony 4 to balcony 3 and grabbed the top corner of a besser concrete block between townhouses 3 and 4. As he was halfway between the two balconies the concrete block he was holding onto came lose. Mr Orklin fell backwards and down. He fell between approximately 2 and 3 metres. He struck the steel edge of a waste disposal bin which was on the ground and fell into the waste disposal bin. 17. Mr Orklin suffered internal injuries and, as a result, died a short time later at the Site. 18. At the time of the incident none of the men on the first floor balcony were wearing harnesses and nor had any harnesses been provided to them by the defendant. At the time of the incident there was no system of fall protection in place at the first floor balcony of townhouse 4 at the Site. There was no scaffolding or catch scaffolding in place at the first floor balcony of townhouse 4 at the Site to prevent persons from falling from the first floor balcony to the ground or into the waste disposal bin located on the ground. Prior to the accident there had been a handrail approximately 2 feet from the edge of the concrete on level 1, however, it had been removed by Mr Orklin to make more room for the delivery of materials. The barrier consisted of a piece of steel RSJ with a piece of tape hanging across it. Mr Orklin, through his company, was retained by the defendant as its on-site supervisor. However, Mr Orklin was not subject to supervision on the day of the accident. The persons at the Site were not provided with any adequate instructions as to the dangers associated with working at height. No risk assessment was undertaken prior to undertaking the work involving the receipt of the timber. 19. On 20 December 1999, Inspector Dennis Howard and Senior Inspector Rick Bultitude of the WorkCover Authority attended the site of the accident, at 15 –17 Kalinya Street Newport. Inspector Dennis Howard prepared a factual inspection report of the accident site (Annexure A). 20. Inspector Rick Bultitude and Inspector Denis Howard took 12 photographs of the said accident site (Annexure B). 21. At all material times the defendant was in control of the Site. 22. The alleged offence under section 17(1) of the Occupational Health and Safety Act, 1983 is as follows: On 20 December 1999 at premises situated at 15-17 Kalinya Road, Newport in the State of New South Wales the defendant failed to ensure that non-domestic premises, of which it had to any extent control, which had been made available as a place of work to non-employees, and in particular Bo Goran Orklin, Ljubo Kuzumilovic and Chris Loftus, were safe and without risk to health, contrary to section 17(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: (a) The defendant, at all material times, engaged contractors and others to perform work at the Site located at 15-17 Kalinya Road, Newport (the site). (b) The defendant, at all material times, had to any extent, control of the Site. (c) The defendant failed to provide and maintain a safe system of work for persons working at the Site who were undertaking work related to the lifting of bundles of timber onto the first floor concrete balcony of the townhouses being constructed at the Site. (d) The defendant failed to provide and maintain a safe system of falls protection for persons working at height at the Site. (e) The defendant failed to provide harnesses or like equipment to persons working at height at the Site. (f) The defendant failed to ensure that persons working at height wore harnesses or like equipment whilst they were working at the Site. (g) The defendant failed to undertake a risk assessment in relation to work involving the lifting of timber from the ground floor to the first floor of the townhouses being constructed at the Site. (h) The defendant failed to adequately instruct all persons at the Site in relation to the dangers of working at height and associated with lifting timber to the first floor balcony. (i) The defendant failed to provide adequate supervision to persons at the site undertaking the lifting of timber to the first floor balcony at the Site. (j) As a result of the said failures Bo Goran Orklin, Ljubo Kuzumilovic and Chris Loftus were placed at risk of injury." 3 In addition, the prosecution tendered into evidence the results of a factual inspection undertaken by the prosecutor and a number of photographs. 4 The defendant tendered into evidence two affidavits. The first was sworn by William Paul Winterton the sole director of the defendant and who, together with his wife are the only shareholders. The second was an affidavit of Craig Williams who was retained by the defendant and other entities within the Winterton group of companies with duties encompassing occupational health and safety matters. 5 The evidence tendered by the defendant has established in my opinion that the defendant has at all relevant times had a positive commitment to occupational health and safety matters and that that commitment has extended to include the production of comprehensive documentation appropriately disseminated to supervisors and others, the creation and implementation of a training programme for supervisors and others and continual attention by Mr Winterton and other senior personnel to occupational health and safety matters. 6 It was Mr Winterton's evidence that the Winterton Group was established in 1973 and has successfully completed over 2,000 individual projects. It has undertaken work in all areas of construction including commercial, industrial and residential buildings. The Winterton Group has had no prior convictions for any offence under occupational health and safety legislation. 7 Mr Winterton said that he personally endeavoured to visit sites and check safety on sites on a regular basis. He also said that the deceased, Mr Orklin, had been associated with the Winterton Group for over sixteen years. 8 I am satisfied from the evidence tendered in the proceedings that the defendant has expressed contrition for what has occurred, Mr Winterton has personally suffered a loss in that he regarded the deceased as a close personal colleague and that the defendant has taken steps since the incident to enhance its commitment to occupational health and safety matters, including remedial action designed to prevent incidents of this kind occurring in the future. 9 In terms of penalty, it is first necessary to consider the objective seriousness of the offence. The fact is that the deceased, Mr Orklin was in charge of the building work at the particular site. It was he who decided to remove the protective barriers and it was he who positioned himself on the edge of the first floor balcony without any protective barrier being present and without using a safety harness or similar fall protection equipment. It may readily be inferred that Mr Orklin was endeavouring to respond quickly to a situation which had developed in connection with the delivery by the crane of the load of timber. It may also be inferred that Mr Orklin felt comfortable in using the top corner of the besser concrete block in order to steady himself and stop himself from falling. It was the fact that the concrete block came away which was the initiating factor in what followed. However, it was the fact that there was no restraining harness being used or any other restraining implement which allowed Mr Orklin to fall to his untimely death. It is obvious that it would have been difficult to have lifted the timber onto the first floor level if the restraining barrier had not been removed. 10 In my opinion it is readily obvious that any person performing work on the edge of any work area which is high off the ground is likely to fall and suffer injury if something untoward occurs. It is also obvious that something untoward does occur from time to time. There are measures readily available to eliminate or, at least, substantially reduce the likelihood of the risk of injury in these circumstances. 11 Given the evidentiary material which was made available to the Court, I must proceed on the basis that none of the persons working at the relevant time on the first floor balcony was wearing a harness, nor had any harnesses been provided to them by the defendant. In addition there was "no system of fall protection in place at the first floor balcony …." So much appears from para 18 of the agreed statement of facts. 12 Whilst, on the one hand, one might have some sympathy for a defendant whose sole reason for breach of the Act is the conduct of the unfortunate person who, in this case, died as a result of the incident, I infer from the available evidence that the breach of the Act is not totally coextensive with the conduct of Mr Orklin. This is because there is no evidence that harnesses or other safety equipment were provided by the defendant. In addition, whilst there is evidence of a training programme, there is no evidence as to the content of that programme and as to whether or not persons such as Mr Orklin were trained to ensure that safety harnesses were utilised by any person who was working at height and who was exposed to a risk of falling. Every employer and, indeed, every person whilst at work is required to exercise vigilance to ensure that action is taken to eradicate if possible the risk of injury. Building sites provide examples where risks to injury are endemic if proper care is not exercised. Because of the nature of these risks and because they are extensive even greater care needs to be taken to ensure that risks of injury are avoided. In all the circumstances, I regard this breach viewed objectively as a serious one. 13 It is necessary to take into account also the deterrent effect of any penalty imposed, both generally and specifically. In general terms all persons engaged in the construction industry need to be aware of the risk of the imposition of a substantial fine if there is a breach of the absolute obligations imposed by the Act. Whilst there is also the need to deter this particular defendant from future breaches of the Act by the imposition of a substantial fine, there are ameliorating factors which reduce the specific deterrent factor as it applies to this defendant. Included are the steps taken by the defendant after the incident and its general commitment overall to occupational health and safety matters. 14 In general terms the defendant is entitled to have the penalty which would otherwise be imposed mitigated by reason of a number of factors. These include its long history of involvement in this industry without prior conviction for any offence under occupational health and safety legislation, its expressed contrition for what has occurred, its commitment generally to occupational health and safety matters and its cooperation with the WorkCover Authority of New South Wales. 15 Furthermore, the defendant is entitled to a discount for having entered an early plea of guilty, which I assess at 25 percent. 16 Having regard to the fact that the maximum penalty is $550,000 and having regard also to the matters which I have referred to above I conclude that a fine in the sum of $80,000 is appropriate, to which should be applied the 25 percent discount for the early plea of guilty, resulting in a fine of $60,000. The prosecution sought and the defendant did not oppose the awarding of a moiety to the WorkCover Authority of New South Wales and costs. ORDERS 17 I make the following orders: 1. The defendant is found guilty of the charge brought against it in these proceedings and is convicted accordingly. 2. The defendant is fined the sum of $60,000 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant is to pay the costs of the prosecutor as assessed by the Court in default of agreement. ___________________________ 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.