Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Steven Jones v State of New South Wales (Department of Public Works and Services) [2002] NSWIRComm 284 PROSECUTOR: Inspector Steven Jones PARTIES : DEFENDANT: State of New South Wales (Department of Public Works and Services) FILE NUMBER: IRC2097 of 2000 CORAM: Glynn J CATCHWORDS : Occupational Health and Safety Act 1983 - s 16(1) - plea of guilty - statement of agreed facts - prosecutor's statement of disputed facts - responsiblity of defendant to erect scaffolding on construction site - not erected - alternative railing erected by contractor - worker fell from level 2 - claim in mitigation that worker intoxicated - intoxication not proved to civil onus - discount for plea of guilty - discount for factors in mitigation - penalty imposed. Occupational Health and Safety Act 1983 s 16(1) Occupational Health and Safety Act 2000 s 141 LEGISLATION CITED : Construction Safety Regulations 1950 regs 73 154 Crimes (Sentencing Procedure) Act 1999 s 22 Bankstown City Council v Paris (1999) 100 IR 363 Briginshaw v Briginshaw (1938) 60 CLR 336 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Environment Protection Authority v The Crown in the Right of New South Wales [2002] NSWLEC 52 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30/6/92) Inspector Jones v Fernandes Constructions [2002] NSWIRComm 71 CASES CITED : Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 R v Olbrich (1999) 199 CLR 270 R v Sharma [2002] NSWCCA 142 Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) (No 3) (2002) 112 IR 141 WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 HEARING DATES: 07/15/2002; 07/16/2002 DATE OF JUDGMENT: 11/01/2002 PROSECUTOR: Mr B Docking of counsel SOLICITORS: Phillips Fox (Mr G Henderson) LEGAL REPRESENTATIVES: DEFENDANT: Mr S Rushton SC with Mr R Dubler of counsel SOLICITORS: Corrs Chambers Westgarth (Mr J Whittaker) JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: GLYNN J 1 NOVEMBER 2002 MATTER NO IRC 2097 OF 2000 INSPECTOR STEVEN JONES v STATE OF NEW SOUTH WALES (DEPARTMENT OF PUBLIC WORKS AND SERVICES) Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2002] NSWIRComm 284 1 This matter is a prosecution by Steven Jones (the prosecutor), an inspector of the WorkCover Authority of New South Wales (WorkCover) of the State of New South Wales (Department of Public Works and Services) (the defendant) for a breach of s 16(1) of the Occupational Health and Safety Act 1983 (the Act). 2 Pursuant to s 141, Savings, transitional and other provisions, of the Occupational Health and Safety Act 2000 (the 2000 Act), cl 13 of div 3 of Sch 3 of that Act has effect in relation to these proceedings which were instituted prior to the repeal of the 1983 Act. 3 Mr B Docking of counsel with Mr G Henderson appeared on behalf of the prosecutor. Mr S Rushton, SC with Mr R Dubler of counsel appeared on behalf of the defendant. 4 On 8 July 2002, responding to an urgent request of the defendant, the matter was brought on and the Court advised by Ms Roche for the defendant that she had been instructed to enter a plea of guilty to the prosecution. At that time there had been three days (15, 16 and 17 July 2002) set aside for a defended hearing. The Court was also advised that although the parties over the previous two weeks had attempted to reach an agreed Statement of Facts, there would be some outstanding disputed matters that would have to be resolved by the production of evidence. On that basis, Mr Docking sought that two of the three days set aside for a defended hearing, should be retained. 5 The prosecutor alleged that the defendant, the State of New South Wales (Department of Public Works and Services), an employer, breached s 16(1) of the Occupational Health and Safety Act 1983 on 12 May 1998 at premises located at Nepean Hospital, Derby Street Kingswood in the State of New South Wales, in that it failed to ensure that persons not in its employment were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work. In particular, the defendant failed to ensure that an adequate system of work was in place to protect against persons being exposed to a risk of injury from falling while working on the level 2 concrete slab and level 3 formwork deck located at portion 4 of a building under construction at Nepean Hospital known as the Stage 2 Project. 6 The event that gave rise to the prosecution was described by the prosecutor, in his affidavit in support of the application for summons - prosecution, as follows: 6 On 12 May 1998 Melvaine [the injured employee] was carrying out steel fixing activities tying a column on the level 2 portion 4 concrete slab ("the level 2 concrete slab") on the southern side of the Building. Melvaine had put some wire around a bar and stirrup to tie and was pulling the wire under pressure when the wire snapped and he stumbled backwards approximately two steps and fell over the edge of the level 2 concrete slab. 7 Melvanie fell from the level 2 concrete slab to the round below landing on a piece of steel tubing, a distance of approximately 4.7 metres. Melvaine sustained head injuries and abrasions and was conveyed by an ambulance to hospital. 7 Extracts from the Agreed Statement of facts are set out below: 4 At all material times the Defendant: (a) Was a New South Wales government Department responsible for the project management of building and construction activities on sites owned or operated by the New South Wales Government or New South Wales statutory authorities; (b) Was responsible for the project management of building and construction work being carried out at Nepean Hospital, Derby Street, Kingswood, New South Wales ("construction site") and known as the Stage 2 Project; (c) Contracted with Fernandes Constructions Pty Limited ("Fernandes") to erect a concrete structure for the New Women's & Children's block at the construction site ("Building"). (d) Employed at the construction site Bernard Hilton as a project officer, Grant Clissold as a cadet, Brian Woodhouse as a project officer and construction manager, John Corbett as the Project Manager and Warwick Farley as the Senior Project Manager. (e) Was in control of and supervised the construction site. 5 Fernandes subcontracted steel reinforcing placement work, which preceded concrete pours, on the Building to C&H Reinforcing (NSW) Pty Ltd ("C&H"). 6 At all material times C&H employed Steven Melvaine as a general steel fixer. The type of work generally performed by Melvaine on the construction site was to erect scaffolding, work on decks and erect columns by placing the steel for the columns in the formwork from deck to deck. The latter involved one worker feeding or dropping steel down from the form deck above and two people on a lower form deck receiving the steel and stirruping them up by use of a component band to stop the steel from spreading. The steel could not be tied from the deck above. After a column has been finished, the work was continually looked over, as part of quality control, to see if there was a missing tie or stirrup that was loose. 7 On 12 May 1998 Melvaine alleged he was carrying out steel fixing activities of tying a column on the level 2 portion 4 concrete slab, which was the first concrete slab above the ground level, ("level 2 concrete slab") on the southern side of the Building. Another employee of C&H was also present on the level 2 concrete slab. Melvaine had put some wire around a bar and stirrup to tie and was pulling the wire under pressure when the wire snapped. He stumbled backwards about 2 steps and fell over the edge of the level 2 concrete slab. 8 Melvaine fell from the level 2 concrete slab to the ground below, a distance of approximately 4.7m. He was observed to be lying flat on his back with a pool of blood around his head. He started to roll around and move his arms. Melvaine was briefly unconscious and was conveyed by an ambulance to hospital. Melvaine suffered the following injuries: (a) Minor lacerations to the head and left elbow. (b) Multiple minor grazes and contusions, especially to the back. (c) Pain in the right chest and generalised body pains. … 12 As a result of his observations, investigations and the sentence proceedings relating to Fernandes, the Prosecutor found as follows: (a) The Defendant was responsible for the installation of scaffolding for the perimeter of the Building. (b) Fernandes' Safe Work Method Statement provided that Fernandes would not perform work in the absence of perimeter scaffolding. (c) Woodhouse had attended the construction site at approximately 5pm on 11 May 1998. Woodhouse had been on holidays for the 2 previous weeks to 11 May 1998. Woodhouse had inspected the level 2 concrete slab from which Melvaine later fell from and had observed framework and formwork situated on the level 2 concrete slab and a timber handrail (100mm x 75mm) on the level 2 concrete slab passed through frames approximately 1.3 metres in height from the floor level. Woodhouse assumed that the timber handrail was positively fixed to the framework although he did not physically test it. (d) In a letter dated 6 April 1998 the Defendant notified Fernandes that it would provide all scaffolding for the perimeter of the Building … (e) In a letter dated 8 April 1998 Fernandes advised the Defendant that it planned to pour concrete for the level 2 concrete slab on either 17 April 1998 or early the following week, and stated, "It is therefore essential that perimeter scaffolding is already in place prior to frames being erected. Please ensure that this is in place. Note that we have had to erect temporary handrails for Portion 4 and Portion 1 slabs already as scaffolding is not present." (f) The formwork from the level 1 concrete slab to the level 2 concrete slab was erected on 30 March 1998. (g) The level 2 concrete slab on that portion of the construction site was poured in late April 1998. After level 2 was poured, the formwork went on to level 3 for the purpose of pouring level 3. This occurred from late April 1998 to early May 1998 without perimeter scaffolding. (h) As at and after April 1998, construction was running behind schedule and there was pressure on all those concerned for the work to be brought up to the relevant rate of progress that had been set. There was a commitment given to have the work completed and the Department of Health wanted the building opened as quickly as possible. Pressure in turn was being exerted by the Defendant on its subcontractors. (i) [sic] (j) Woodhouse knew there should have been scaffolding around the perimeter of that construction site. (k) No perimeter scaffolding was in place in the immediate area from where Melvaine fell on 12 May 1998. Melvaine fell a distance of approximately 4.7m from the level 2 concrete slab to the ground below. (l) A timber handrail had been placed as fall protection on the level 2 concrete slab made of timber which slid in between frames. According to Clissold who saw the handrail on 11 May 1998 and the prosecutor's direct observations made on 12 May 1998 of where Melvaine fell, the handrail was not secured. However, according to Bullock, on 11 May 1998, the timber handrails were fixed by tie wire. Bullock was not present at the construction site on 12 May 1998. (m) Steel fixing activities had been carried out by persons employed by Fernandes or C&H on 12 May 1998 on both the level 2 concrete slab and the level 3 formwork deck without perimeter scaffolding or without a proper fall prevention system in place. No instruction had been issued by the Defendant for formwork or steel fixing activities not to be carried out on the level 2 concrete slab or the level 3 formwork deck until perimeter scaffolding or another proper fall prevention system was put in place. (n) The Defendant failed to ensure that an adequate system of work was in place to protect against persons being exposed to a risk of injury from falling while on the level 2 concrete slab and the level 3 formwork deck. 8 In addition to the Statement of Agreed Facts the prosecutor relied on the following alleged facts, (the prosecutor's Statement of Disputed Facts), which were disputed by the defendant: 1 As a result of his observations, investigations and the sentence proceedings relating to Fernandes, the prosecutor found as follows: a) [Undue] pressure was being exerted [unduly] on Woodhouse from above, namely Corbett, Farley and the Wentworth Area Health Service in his chain of command. b) Hugh Bullock, Project Manager on the construction site for Fernandes, alleges that on 11 May 1998 at about 5pm he said to Woodhouse words to the effect, "Where the fuck is the scaffold? We have been stuffed around for weeks. Nothing is happening." Woodhouse responded that it was coming in and we had to keep moving ahead, and "When are you going to pour the next concrete for level 3. You appear to be a bit divergent on that issue." There was also discussion about temporary handrails in place. The conversation took place very close to the place where Melvaine fell on 12 May 1998. c) The opinion of the Prosecutor is that the timber handrail was of no use as a safety measure protecting against a fall. The type of construction work required was often performed in crouching, squatting, lying down or kneeling positions. For example, squatting down is often required while a worker ties steel. The handrails were in excess of one metre in height and what was required was putting wire or a solid barrier in between the towers as per Attachments A and B. A worker could fall through or underneath the timber. Tie wires to secure handrails would not be accepted by WorkCover for a number of reasons, including that the tie wire is corrosive, only mild steel, and can become corroded and rusty, if leant against the handrail can depart from the tie wire permitting a person to fall over the edge, to provent [sic] movement there should be a positive fixing system such as hoop pine [sic] [hoop iron] or a scaffolding fitting in such a menner [sic] to be capable of withstanding a person falling against it without it collapsing, and timber supports as a handrail has to be supported every 2.4 metres. d) On 12 May 1998 Melvaine was carrying out steel fixing activities of tying a column on the level 2 portion 4 concrete slab, which was the first concrete slab above the ground level, ("level 2 concrete slab") on the southern side of the Building. Another employee of C&H was also present on the level 2 concrete slab. Melvaine had put some wire around a bar and stirrup to tie and was pulling the wire under pressure when the wire snapped. He stumbled backwards about 2 steps and fell over the edge of the level 2 concrete slab. 9 In relation to those disputed matters, the prosecutor adduced evidence from the following witnesses, all of whom, other than Inspector Jones, appeared in response to a summons to give evidence: Steven Jones, Senior safety inspector with WorkCover Authority of New South Wales. Brian Thomas Woodhouse, Project Officer, Grade 9, New South Wales Department of Public Works and Services. Grant Harold Clissold, Project Officer, New South Wales Department of Public Works and Services. Hugh Howard Bullock, Civil Engineer, previously worked for Fernandes Constructions Pty Ltd. Steven John Melvaine, Farmhand. Garry John Salafia, Sergeant of Police, St Mary's Police Station. Robert Coady, Director, C&H Reinforcing (NSW) Pty Ltd. 10 Tendered into evidence were a number of statements that recorded interviews by Inspector Jones with a number of the witnesses who gave oral evidence: Brian Thomas Woodhouse (2 Statements, 9 June 1998) Grant Harold Clissold (18 May 1998) Hugh Bullock (breach interview conducted via faxes sent 30 March 1999 and 10 May 1999. In these proceedings the witness was taken to his answers dated 12 May 1999.) 11 Also tendered into evidence were transcripts of parts of the evidence given by Brian Woodhouse, Hugh Bullock and Robert Coady in March 2002 during the course of prosecution proceedings, also arising out of this incident, before Boland J in Inspector Jones v Fernandes Constructions (Fernandes Case) [2002] NSWIRComm 71. 12 The defendant adduced oral evidence from one witness only: Joseph Paul Thew, employed by the Department of Public Works and Services for approximately 21 years. When based at the Nepean Hospital site in 1998 he held various positions including first aid officer and safety officer and had been a member of the safety committee. Submissions - Prosecutor 13 An objective consideration calling for an increase in the seriousness of the penalty is the nature of the offence where it involved obvious risks (see WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64). 14 It will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible (see Lawrenson Diecasting at 476.5). Also going to the objective seriousness of the offence is the availability of simple and straightforward steps to remedy the defects in the system in WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited unreported, Schmidt J, 25 February 1995 at 12.2. 15 The Act requires a pro-active approach on the part of an employer to safety particularly in an industry which is very dangerous or perhaps even inherently unsafe (see Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 210.7. 16 The criminal history should not lead to the imposition of a penalty which is disproportionate to the seriousness of the offence, but may be relevant to show that the instant offence has manifested a continuing disobedience of the law or that the offence was not an uncharacteristic aberration (see Lawrenson Diecasting at 477.3). However, in assessing the penalty it may be appropriate to take into account the size of the defendant's workforce, the number of work sites, and the nature of the work carried out by the defendant and its employees (see WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179 (6 October 2000 at [47] Wright J President) ). 17 There is a dispute between the State and the prosecutor as to the culpability of the defendant before the Court. The prosecutor does submit that very significantly and seriously the State of New South Wales is more culpable criminally than the co-defendant Fernandes Construction. One would expect the State of New South Wales to be the leading edge or the bright light on health and safety matters in the building and construction industry. There is no dispute between the parties that the Department of Public Works is a large employer in this industry and has involvement in many sites right across the State of New South Wales and did so at the time of this offence. 18 One needs to go no further than the agreed statement of facts to objectively confirm what are the requisite standards and that the State indeed is more culpable. 19 On site at the Nepean Hospital project, so far as health and safety is concerned, if was one was to look at a chain of command or a hierarchy of control, the State of New South Wales was at the top of that chain or hierarchy for control of health and safety matters. The buck stopped for safety matters with the State of New South Wales. 20 So as far as the maximum penalty is concerned, $825,000 is the maximum applicable penalty. This arises out of the prior conviction contained in Exhibit 3. It is an application of s 51A of the former Act, being the 1983 Act. The 2000 Act applies part 7 to these proceedings and s 121(3) of the 2000 Act does confine the prosecutor to looking at prior convictions of really the Department to trigger the higher penalty. Section 123 of the 2000 Act confirms that the maximum is $825,000. 21 The risk here is apparent and it was a risk of whether it be employees of the Department itself or persons not in its employment, ie the risk of persons falling while working on the level 2 concrete slab or on the level 3 formwork deck located at portion 4 of what was the Nepean Hospital construction site. There is no dispute on the facts that the height from level 2 is about 4.7 metres. The height from level 3 is about 8 metres. It is objectively incapable of being suggested otherwise than that there was a risk of death, permanent disability and major injuries if any person was to fall from either of those two levels; one would have thought a notorious and obvious risk in the building and construction industry. 22 The Construction Safety Regulations which applied at the time, should have reinforced in an objective, obvious foreseeable way the risks that were permitted to flourish at that particular construction site, not just on 12 May 1998, but for many weeks beforehand as work was performed on levels 2 and 3. 23 The defendant was responsible for the installation of scaffolding for the perimeter of the building. Work was performed on levels 2 and 3 in the weeks before 12 May 1998. It is accepted that there never was appropriate fall protection or scaffolding in place throughout that period. This was something that occurred for some weeks as an unsafe system of work. It is in that sense that the prosecutor submits this is no uncharacteristic aberration. The Court is entitled to take it into account as a matter of aggravation or as going to the objective seriousness of the offence (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (Camilleri's Stock Feeds) [(1993) 32 NSWLR 683]. 24 Mr Bullock's evidence goes to the pressure that was placed upon the employees and Fernandes Constructions as a subcontractor of the State. 25 In terms of how the objective seriousness is manifest, one can also look at the evidence of the pressure that was placed upon not only contractors like Fernandes Construction but also, and it is submitted by the prosecutor, unfairly by the State of New South Wales on the State's very own employees, for example Mr Woodhouse. Part of the pressure has been admitted in the agreed statement of facts but it is quite clear the prosecutor has also made out that pressure, whether it is called undue pressure or unduly pressure, has being placed, was so placed on Mr Woodhouse from above, namely Messrs Corbett, Fay and the Wentworth Area Health Service in his chain of command. 26 Expediency going to finishing a project as quickly as possible simply has no role to play in the Occupational Health and Safety Act that applied then, and the same could easily be said about the 2000 Act. At various times it was suggested that wet weather was an explanation for it failing to install the scaffolding, but Mr Rushton advised he was not advancing that. 27 The Court is left with the only explanation and it is the pressure placed unfairly upon people like Mr Woodhouse from above, by the State, and then that flowed on to the subcontractors. It is quite clear that in the chronology the State had assumed the responsibility for the scaffolding. It had weeks to put it in place and failed to do so. 28 On the evidence of the present case in terms of objective seriousness, it is submitted that this case is appropriately towards a worst case category (see Inspector Roy Thomas Milligan v Roads and Traffic Authority, Fisher P, 29 August 1996). 29 There can be no dispute that there was a major risk of falling injuries, whether it be 4.7 metres or 8 metres. There can be no dispute that there were ready known precautions available and identified weeks in advance to deal with those falling risks. Again the chronology which is not in dispute and the letters tendered bear that out on the criminal standard. 30 The objective obvious nature of the risk and the well known precautions, is confirmed by reference to the Construction Safety Regulations 1950 especially reg 154 and parts of reg 73. There was also a direction which had been issued for some many years by the then Department of Industrial Relations which makes it clear that there needed to be things like the steel mesh, fully enclosed areas to prevent from falling and also objects being, as it was described, "kicked off and falling below" on persons who might be so located. 31 In terms of Mr Thew it is abundantly clear from the evidence that although he was advanced as a person said to be a safety officer, regrettably the only training ever of that person, and it is not his responsibility at the end of the day, it was the State's, was to attend a two day course which was how one was to be a member of an Occupational Health and Safety Committee. That was grossly inadequate for a person who was said to have had the responsibility of undertaking the inspections and the like at this particular construction site. 32 It was nothing but a paper system which is inadequate to have a person who is not properly trained to properly monitor things like fall protection, scaffoldings and handrails. Training is needed if one is to give part of that responsibility to a person like Mr Thew. 33 Mr Thew in oral evidence agreed that his suggestion that immediately afterwards the area was barricaded off and contractors were directed elsewhere was wrong. 34 In relation to alcohol consumption and whether Mr Melvaine was intoxicated, or the extent to which he was intoxicated, the State just misconceives the true nature of the offence. It is the potential risk which suffices to make out the charge. The potential risk here is of falling 4.7 to 8 metres on a building and construction site, where the Construction Safety Regulations for decades have made it clear fall protection should exist for working above 1.8 metres. This concentration on Mr Melvaine and his drinking manifests a misunderstanding of the real elements on which the charge is based. 35 Persons working on construction or building sites under the influence of alcohol at the time of this incident was a well-known risk. That much was the oral evidence of Mr Coady who talked about a culture in the industry, even as being encouraged over the years although he did not encourage it. The prosecutor accepted that is a matter which is quite properly added in the defendant's favour in this sense as another measure it took after the incident was the drug and alcohol seminar carried out by the CFMEU on 3 June 1998. 36 It was suggested by Mr Rushton this matter would not be toward the top end of the scale because for that to be the case the risk would have to be foreseeable and the defendant would have to deliberately, intentionally or maliciously overlook matters. It is submitted that beyond reasonable doubt the Court would find there was a foreseeable risk that existed throughout April to 12 May of employees falling from various parts of Level 2 and 3. 37 The formwork from the Level 1 concrete slab to Level 2 concrete slab was erected on 30 March 1998. Level 2 concrete slab on that portion of the construction site was poured in late April 1999. After Level 2 was poured the formwork went on to level 3 for the purpose of pouring level 3. This occurred from late April 1999 to early May 1999 without perimeter scaffolding. 38 There is a foreseeable risk for protection in the absence of that scaffolding. In terms of there being an intentional, deliberate and overlooked position of the State of New South Wales to putting in a safe system of fall procedures, that cannot be a matter of dispute if one works backwards from the conversation with Mr Bullock held on 11 May 1998: "Where the fuck is the scaffolding, I've been asking for it for weeks", from the letters which were tendered, going back to early April 1998; and the evidence of Mr Thew, that he never stopped the work including on levels 2 and 3 despite there being no scaffolding or meshed areas. That meets the State's own definition to the extent of being foreseeability, intentional, deliberate and overlooked. The prosecutor does not need to go so far as it also being malicious. It is just not an appropriate case for the prosecutor to address the last description. 39 The evidence of Mr Coady confirms beyond reasonable, just as Boland J found, that employees in effect would be expected to work on Level 2 on the day Mr Melvaine fell. 40 Paragraph 6 of the agreed Statement of Facts deals with the type of work generally performed by someone like Mr Melvaine as a general steel fixer. In evidence before Boland J Mr Coady confirmed that he had employees working from the level 3 dropping down bars to persons on Level 2 to tie them off on 12 May 1998. It is no excuse for the State of New South Wales to say they did not think, for example, Level 2 was a working area on 12 May 1998. This is part of the work process, if anybody objectively turned their mind to Level 2 and 3 should and would have understood was being undertaken on 12 May 1998. It just manifests a lack of supervision and control of the construction site to raise the proposition, that they did not know when they had the duty of control and supervision that work was being carried out on Level 2. 41 There has been no attempt to properly explain where Mr Thew's diary is located for which his supervisors admitted he had access. No attempt was made to explain where the first-aid book is located. It is just suggested that it was lost from what was a secured Department of Public Works and Services office area; a locked area. There has been no satisfactory explanation about the non-production of those work records. They are documents that one could have anticipated would be produced by the State of New South Wales. Submissions - Defendant 42 The State of New South Wales and more particularly of course the Public Works and Services addresses the fact that it has significantly breached s 16 reflected in the agreed statement of facts and the evidence. So much is apparent from the letter which was tendered from the Director General of the Department. 43 The department is a sizeable department which is involved in major projects in the building industry and having regard to that fact, although there is a prior conviction some years ago, by and large the department has discharged its obligations under the relevant legislation in exemplary fashion. What happened here is in this instance, that the system broke down. The failure to install scaffolding while work was proceeding was an unsatisfactory way to proceed having regard to the fact that the perimeter of the building had not otherwise been secured by the head contractor who carried out a risk assessment in relation to timber fencing and proceeded along those lines, that is, directing timber finishings in a way that was not satisfactory. 44 The Court has to make findings of the fact to the extent that there was evidence that went beyond the agreed statement of facts. The High Court indicated in R v Olbrich (Olbrich) (1999) 199 CLR 270, that the sentencing judge may not take into account facts which are adverse to a defendant unless they are proved beyond reasonable doubt. On the other hand if there are circumstances which the judge proposes to take into account which favour the defendant then it is enough that they are proved on the balance of probabilities. 45 In this case, the Court was not bound by the findings of fact in the Fernandes Case, but was bound to make findings in accordance with the evidence in these proceedings. In this case the proper conclusion when viewing the evidence before the Court as a whole is that although the State is culpable, and significantly so, the culpability of both the head contractor Fernandes and its steel fixing subcontractor significantly exceeds the culpability of the State, and as a matter of parity the Court would be somewhat reticent in imposing a penalty upon the State which was anywhere near that imposed by Boland J upon the head contractor in Inspector Jones v Fernandes Constructions [2002] NSWIRComm 71. 46 Although the prosecutor had submitted that the defendant's conduct is in the worst possible case situation and therefore it calls for the position of a finding of the upper end of the range, counsel for the defendant asked the Court to bear in mind these matters first. It was clear that the scaffolding was not there and would not be there until the Wednesday following the accident. Mr Bullock acknowledged that his company had carried out a risk assessment and had determined that with the guard rails constructed in the way they were, it was safe to proceed. He indeed agreed that they were obliged to erect such a hand rail in accordance with WorkCover requirements. 47 Although the State, and counsel did not back down from this, had overall management of the site, it was Fernandes Constructions who had the day to day management of the construction, and the placement of its employees on site. It was Fernandes or C&H Constructions who were the steel fabricators who knew at any particular point in time where particular employees might be and it was they who, in a very real sense, permitted Mr Melvaine to be placed in a position from where he ultimately fell. 48 So when one looks at the question of sentence from the angle of parity the defendant says that there are others involved in this case who are more culpable than it was. Firstly because of the points raised above and next because it is clear on the evidence, that a drunken worker was permitted to enter the site on the relevant day. 49 On that point, the State only bears a standard of proof on the civil onus but it had gone far beyond that and demonstrated that in the likelihood when Mr Melvaine came on to the site that morning he was substantially affected by alcohol. It was really the responsibility of the subcontractor and if not them, certainly Fernandes Constructions to remove him. Had that happened, although the State would still be guilty of a breach of the Act because the system was acknowledged to be unsafe, it may not have attracted the level of penalty it might otherwise do having regard to Mr Melvaine's condition. 50 Although there is, on the evidence, quite clearly a breach of the Act because there has been identified a risk to the state of employees or non-employees rather, there is another party at fault. 51 In Fernandes Constructions, Boland J was dealing with the situation with limited evidence as to Mr Melvaine's state at the time he was on site. The defendant has no difficulty at all with the Court punishing it because of the risks that were obviously on level 3 and 2 but it does say it would be manifestly unfair to say the risk here was manifested in what happened to Mr Melvaine because the evidence is overwhelming that he was substantially intoxicated on site. 52 Not only in relation to parity but on the basis that there is this complicating factor of whether Mr Melvaine's injury, because of intoxication, really does reflect the risk proposed by the defendant, the Court would be disposed to grant some degree of leniency to it. His Honour Justice Boland did not have the benefit of Mr Melvaine's evidence and he did not have the benefit of the police officer's evidence before him. 53 It is clear that the defendant's failing is a serious one and it accepts the seriousness of it on an objective level. There is obviously a need for deterrence and although the State has one prior conviction it is one that occurred a number of years ago and it is one offence only. It is an offence which was committed on 22 November 1995. 54 There is a penalty of some $1,500 imposed by the Chief Industrial Magistrate. The defendant does not know what were the facts and circumstances behind that conviction. 55 It is a matter that the Court has to take into account and it is a matter where, as a matter of discretion, under s 51A of the Act the Court is entitled to increase the penalty. The maximum penalty available is some 7,500 penalty units. For the reasons advanced, the Court will stay its hand in relation to the upper end of that particular maximum. 56 Although deterrence is paramount, the Court is entitled to take into account a number of subjective circumstances. Firstly, the defendant pleaded guilty and that fact alone, together with the evidence of the Director General would be evidence of contrition on its part. 57 The Court is also entitled to take into account, and indeed should so the authorities say, the utilitarian value of the plea (see s 22 of the Crimes (Sentencing Procedure) Act 1999). In the guideline judgment, the Queen v Thompson, the Court of Criminal Appeal said that utilitarian value of a plea in the criminal justice system should generally be assessed in the range of 10 to 25 per cent discount on sentence. 58 A primary consideration determining where in the range a particular case should fall is the time of the plea. The defendant accepts that it did not plead at the earliest available opportunity. There were some interlocutory skirmishes which ultimately resolved themselves, and this matter was originally set down to be dealt with as a contested hearing. Be that as it may, the State has come here today, it has entered its plea and it is entitled to a significant discount on sentence because of that. 59 The Court has before it, of course, other convictions that concern the State of New South Wales and there is authority that the Court should take those into account; not by any means to increase the penalty which might otherwise be imposed, but as a mechanism by which the Court might decide not to further reduce it. 60 The investigation undertaken by WorkCover, suggests, as there was no complaint by the inspector, that the defendant has co-operated. There is no suggestion that it had not given WorkCover what they wanted, bar for one matter and that was the rather unfortunate cross-examination of Mr Clissold yesterday. Mr Clissold in his evidence indicated that he was at court by 9.35am. There was no suggestion in any way that WorkCover was prejudiced by the fact that he had not turned up at the chambers of their counsel by 9 o'clock. Indeed, when one goes through his evidence it is largely uncontroversial. It would be very unfair to take that trifling incident, such as it is, as an indication in some way that the State has not co-operated with WorkCover. 61 It is known from the evidence that a number of witnesses observed that there was at least a wooden rail up on level 2 the afternoon before. No one has been able to satisfactorily explain why it was missing. The defendant does not for one moment suggest that that was adequate compliance with its duties, nor was there adequate compliance on the part of Fernandes Construction; but one might ask rhetorically if, for example, the Court was to accept, which it says it should not, the version given by Mr Melvaine that he was standing up when he was doing this tie and fell back, it may well have been, having regard to the size of the wood that the Court has seen in photograph 1, that although the system on level 2 would not have been sufficient in all circumstances, it probably would have been sufficient to have resulted in Mr Melvaine staying on level 2 rather than going over. 62 The prosecutor submits that this case falls into the worst case scenario. It may or it may not depending upon whose conduct one is looking at. The conduct of the State in this particular matter goes no where near the worst case. Worst cases are often confined to cases where a risk is not just foreseeable, but deliberately, intentionally or maliciously overlooked. That cannot be the case here, although what the defendant did was wrong. Submissions - In Reply - Defendant 63 In respect of the prosecutor's submissions in relation to the matter of alcoholism if a prosecutor is to rely on so called aggravating circumstances then they have to be specifically pleaded. They are not here. 64 Secondly it has never been suggested that what was set out in paragraphs 12 (f) and (g) of the agreed statement in some way aggravated the offence in question and the cursory reading of them indicates that that cannot be so. The defendant does not dispute that formwork from Level 1 concrete slab to Level 2 concrete slab was erected on 11 March 1998 nor that the Level 2 concrete slab on portion of the construction site was poured in late 1998, but the Court does not know in what circumstances all that occurred. 65 The statement then goes on to say this occurred from late April 1999 to early May 1998 without perimeter scaffolding. That is accepted. Inspector Jones agreed in his cross-examination that there is more than one way to keep the perimeter safe and the Court just does not know over that period of time what the situation was apart from the fact that there was an absence of scaffolding. It is quite mischievous for the prosecutor now to say that in some way those matters aggravate the offence and calls for higher penalty. 66 In the alleged conversation with Mr Bullock and deleting the expletives where he asked for the scaffolding and claims that he had been asking for a week, one finds that Mr Bullock ultimately conceded that his concern was not safety but access and that he did not regard the site as being unsafe at that time. He said had he regarded it as being unsafe he would have stopped work. 67 The third proposition put in reply is that although there is some evidence that Mr Woodhouse felt under pressure nobody, neither Mr Woodhouse, Mr Bullock nor any other witness said that safety was compromised because of any such pressure. Absent that link the defendant would submit that the proposition is irrelevant. 68 The prosecutor has suggested that because the State sought but did not carry through with the raising of certain arguments before Hungerford J and the Full Bench that in some way that shows lack of co-operation. There is no authority to support the proposition that a defendant who decides to exercise a legal right if it later withdraws is evidence in lack of co-operation. If the defendant has a legal right, particularly in criminal law, it has a right to exercise it and no adverse inference should be drawn. Legislation 69 Insofar as is relevant the Act provides as follows: Part 3 General provisions relating to health, safety and welfare at work Division 1 General duties 16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in his employment are not exposed to risks to their health or safety arising from the conduct of his undertaking while they are at his place of work. (2) Every self-employed person shall ensure that persons not in his employment are not exposed to risks to their health or safety arising from the conduct of his undertaking while they are at his place of work. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (3) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section. Consideration 70 I turn first to consider the matters raised in the prosecutor's Statement of Disputed Facts and by the defendant in mitigation. Undue Pressure on Brian Woodhouse 71 It is agreed by the parties, as set out in par 12(h) of the Agreed Statement of Facts, that construction was running behind schedule and that there was pressure on all those concerned to bring the work back on to its original schedule. 72 It was not agreed, as was asserted by the prosecutor in his Statement of Disputed Facts, that pressure had been unduly exerted on Mr Woodhouse by people above him in his chain of command, namely, Mr Corbett, Mr Farley and the Wentworth Area Health Service. (No person from the WAHS was specified as exerting pressure.) 73 The prosecutor relied upon the matter of pressure on Mr Woodhouse by those above him in the Department's chain of command as an aggravating feature in that safety is never to be compromised due to pressures in the construction industry to finish a project. 74 The claim that those persons and that body were "unduly" placing pressure on him was made by Mr Woodhouse on 11 March 2002, in evidence in proceedings Inspector Jones v Fernandes Constructions [2002] NSWIRComm 71 before Boland J. The pressure was said to be because "they all wanted the building completed as quickly as possible". A commitment had been given by the Department of Health to meet the programme to have the work completed. 75 Before Boland J, Mr Woodhouse described the forms of the pressure being placed on him: A. There were reports which were gone through. There were meetings which were held between the Department and the Wentworth Area Health Service and the New South Wales Health Department about the progress of the work and that we were falling behind those deadlines and that the feedback was that they were concerned about the rate of progress not being up to the accepted speed of progress on the job to have it completed. The feedback referred to was given to him orally by John Corbett and Warwick Farley, neither of whom was called as a witness. 76 That matter was raised in these proceedings, Mr Woodhouse telling Mr Rushton that on most projects it was common to have pressure on everybody on site to finish the job in a timely manner. It was taken further in re-examination by Mr Docking who sought specifics of the pressure alleged. 77 What Mr Woodhouse's further evidence on that point came down to was that he did not know of any job he had worked on with the Department running on time. He had not worked previously with Warwick Farley or John Corbett before the Nepean project. He had previously worked on a project where the WAHS was the client, but prior to this project the WAHS had not unduly placed pressure on the Department to complete the project. 78 Mr Bullock said that at one of the kick-off meetings with the defendant at the beginning of the project, the Department had emphasised to Fernandes that the completion date was critical to Public Works. Brian Williams from Public Works had said at a discussion with Mr Bullock and Mr Woodhouse, that heads would roll if the date was not met, and that for a project of this type it was going to be the quickest hospital built to date in New South Wales. Mr Bullock also said that part of the information made available by the Department before the contract was entered into was that the Nepean project was a high profile job and safety was a major consideration. 79 There was minimal evidence against which the Court could compare pressure and "undue" pressure to get building projects finalised in accordance with set time frames. 80 In my view, the evidence adduced did not satisfy the civil test let alone the criminal test of proof of the prosecutor's allegation that undue pressure was a factor affecting safety in respect of this incident. Conversation between Hugh Bullock and Brian Woodhouse 81 A further item in the prosecutor's Statement of Disputed Facts was that: b) Hugh Bullock, Project Manager on the construction site for Fernandes, alleges that on 11 May 1998 at about 5pm he said to Woodhouse words to the effect, "Where the fuck is the scaffold? We have been stuffed around for weeks. Nothing is happening." Woodhouse responded that it was coming in and we had to keep moving ahead, and "When are you going to pour the next concrete for level 3. You appear to be a bit divergent on that issue." There was also discussion about temporary handrails in place. The conversation took place very close to the place where Melvaine fell on 12 May 1998. 82 It was contended by counsel for the prosecutor that alarm bells for the State were well and truly set off when one follows the chronology through April up until the incident on 12 May 1998. The Court would find beyond reasonable doubt that there was a conversation on the late afternoon of 11 May 1998 between Mr Woodhouse and Mr Bullock. Mr Bullock was worried because the level 3 concrete pour was about to take place. 83 Mr Woodhouse, as in his evidence before Boland J and now has no recollection of the conversation. Mr Bullock does not deny the conversation; he just has no recollection. It is in that sense that it would be absurd to reject Mr Bullock's evidence. There is no contrary direct evidence or version to that of Mr Bullock (see Bankstown City Council v Paris [(1999) 100 IR 363 at 369-370]. 84 In these proceedings, Mr Bullock confirmed that he had the discussion at the time and place described in the Disputed Fact set out above. He said that he was not able to get a direct answer from Mr Woodhouse, the conversation being deflected by the latter to the timing of the next concrete pour and progress on the job. 85 As part of the background to that conversation, it was the evidence of Mr Woodhouse that, in the absence of scaffolding, he saw the next best option as being the erection of temporary handrails. That instruction had been faxed to Fernandes on Saturday 9 May 1998. 86 Mr Bullock was aware that the WorkCover Code of Practice relating to formwork as at May 1998 permitted handrails, either as an alternative to scaffolding or in combination with it, to secure the perimeter of a building. 87 He said that Fernandes had carried out a risk assessment as a result of which it decided, in consultation with the Department, to use handrails until scaffolding was erected. In re-examination he said that that was not something Fernandes had anticipated they would have to do because it had been their expectation that scaffolding would be provided. 88 There was a further exchange on that point: DOCKING: Q At one stage you said to the effect that timber was ot the preferred way for hand rails? A That's right. Q Why did you hold that view at the time? A With the level of work taking place on site we really needed scaffolding. Q Can you explain what you meant by the level of work required by scaffolding? A We had form workers, steel and concreters coming and going at various times and to get proper access to the work face the scaffolding really was required. 89 In the context of discussing scaffolding, Mr Bullock said he pointed out to Mr Woodhouse that Fernandes did have timber handrails in place, but were not particularly happy with that situation. Fernandes particularly needed scaffolding because they were advanced on level 3 and once that level was poured, that level would be some seven metres in the air without any scaffolding and they would then need to put up frames for the next level. 90 Mr Bullock was cross-examined as to what he had meant in speaking of being "unhappy", in relation to the use of handrails, that point not having been mentioned before Boland J on 11 March 2002. 91 Upon consideration of his evidence I am satisfied that Mr Bullock was not saying he was unhappy with the handrails as such, but with the non-provision of the scaffolding, that being Fernandes' preferred option for protection. A specific reason was advanced by Mr Bullock: A With the construction works there the scaffolding is needed to provide proper access as well as fall protection, it's not just a case of protection from people falling off the edge but also from getting to one end of the building to the other which it is more preferable to walk along the scaffolding and do things in a workman like manner. 92 The excuse of wet weather causing difficulty in erecting the scaffolding was abandoned by the defendant in these proceedings, but asked about it, Mr Bullock said: A Yes, yes, that was offered as an excuse but from my observations there was no plan put in place for erecting scaffolding. Generally before a job starts you clear an area around the perimetre [sic] of the building and prepare it, prepare it with compacted fill, or you would put down boards or sole plates from which you would erect the scaffold from, but that hadn't been done on this occasion. 93 He was taken to that point in re-examination in connection with the minutes of the site co-ordination meeting at 1 pm on 11 May 1998, at which both Mr Woodhouse and he had been present. In those minutes it was noted "room for approximately 6 pallets of scaffolding is required for erection of north wing south side … erect scaffolding Wednesday". He said: … certainly I had a conversation with Mr Woodhouse on Monday the 11th, the area in question didn't look like it was ready for scaffolding, it wasn't prepared, there was no indication that anything was happening. … Q Without the preparation being undertaken, what utility is there for six pallets of scaffolding? A Well there wasn't room to put it in there. 94 In the light of the attempts since 8 April by Fernandes to have the Department erect the perimeter scaffolding for which the Department had responsibility, I do not find it unlikely, as seemed to be suggested by the defendant, that Mr Bullock would have raised the issue with Mr Woodhouse later on the same day that a site co-ordination meeting had been told that the scaffolding would be erected two days later, especially in the light of the evident lack of any preparation for its erection. 95 I find that the conversation between Mr Woodhouse and Mr Bullock took place when and as described by Mr Bullock. Timber Handrail Insufficient Safety Measure 96 A further item in the prosecutor's Statement of Disputed Facts was that: c) The opinion of the Prosecutor is that the timber handrail was of no use as a safety measure protecting against a fall. The type of construction work required was often performed in crouching, squatting, lying down or kneeling positions. For example, squatting down is often required while a worker ties steel. The handrails were in excess of one metre in height and what was required was putting wire or a solid barrier in between the towers as per Attachments A and B. A worker could fall through or underneath the timber. Tie wires to secure handrails would not be accepted by WorkCover for a number of reasons, including that the tie wire is corrosive, only mild steel, and can become corroded and rusty, if leant against the handrail can depart from the tie wire permitting a person to fall over the edge, to provent [sic] movement there should be a positive fixing system such as hoop pine [sic] [hoop iron] or a scaffolding fitting in such a menner [sic] to be capable of withstanding a person falling against it without it collapsing, and timber supports as a handrail has to be supported every 2.4 metres. 97 The prosecutor's opinion on this matter was supported by the evidence of Inspector Jones. 98 The Construction Safety Regulations 1950 (as amended) in relation to safeguards and accident prevention measures for construction work provides, insofar as is relevant in this matter, in reg 73 that: 73 Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74 - (1) provide suitable and safe scaffolding, which shall confirm to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations; (2) provide and maintain safe means of access to every place at which any person has to work at any time; (3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m; … (6) where practicable provide overhead protection for persons working below other persons or where there is a likelihood of persons being injured by objects falling from above; such overhead protection shall be by means of timber or other material of strength and construction reasonably adequate to catch, deflect or hold any reasonable weight of material or objects that may fall upon such protective construction; … (8) effectively fence in the manner prescribed by these Regulations, all platforms, the open sides of all floors, openings in floors, roofs and platforms into which persons could accidentally walk, the open sides of stairways and stairway landings and all excavations and holes more than 1.5 m. Provided that it shall be permissible to remove when necessary any guard rail, fence or part thereof for the purpose of handling materials or for the installation of other work, subject to such guard rail, fence or part thereof being at once replaced upon completion of such work; 99 Regulation 154, in relation to handrails, states: 154 Except where otherwise provided - (a) handrails shall be fixed at a height of 1 m above the working platforms or surfaces served, and shall be strongly supported at points not further apart than 2.4 m; (b) handrails shall be of not less strength and rigidity than the following alternative members - (i) If of timber, pine timber not less than 75 mm in depth 50 mm in horizontal width. (ii) If of steel, steel water pipe of 25 mm diameter nominal bore, having a wall thickness not less than 3.6 mm or (iii) Rolled mild steel angle section 44 mm x 44 mm x 6.5 mm. (c) Unless otherwise approved, handrail stanchions or standards shall be welded or bolted in place, with bolts each not less than 10 mm in diameter and having washers under heads and nuts. Handrails shall be strongly secured to standards by - (i) steel U-strips not less than 25 mm in width and 1.6 mm in thickness, strongly spiked or screwed in place, or (ii) bolts as for standards, or (iii) approved cleats or approved lashings, or (iv) by adequate full-strength welding. 100 Inspector Jones described "perimeter scaffolding" as follows: A Perimeter scaffolding would be largely independent of the concrete slab or the movements, but certainly tied into the concrete slab or movements by tubes. Q What do you mean by tubes? A Tubes are fixed to the scaffolding and then fixed to a fixed structure to prevent any displacement of the scaffold or any movement. Q How do you say in your experience it would be affixed? A Via fittings, special fittings called scaffold fittings. Q In short terms, can you explain what those scaffold fittings are? A Scaffold fittings is mutual fitting, which is to bolts either side and you can get a swivel fitting to brace your scaffolding or you can get them as a fixed 90 degree fitting, and there are other fittings as well. But they are a recognised fitting. They comply with the relevant Australian Standards for accessories for scaffolding. 101 He was taken by Mr Docking to the use of "tie wire": Q Where does tie wire, as you have explained what that is, fit within or is recognised as, for example, a safety screen anchorage? A It does not fit in at all. Q Why do you say tie wire does not fit in at all as a safety screen anchorage? A Tie wire was not designed as an anchorage point other than designed for the use of steel beam tied to each of them. Tie wire to my understanding is a mild steel. It can easily become corroded, easily be broken when you are using something like tie wire. It does give a false sense of security that would not withstand the weight of an average person, who we determined the [sic] approximately 80 kilos, if a person was to lean against that handrail that was anchored or secured with tie wire. Q You have just mentioned if tie wire was used for a handrail, what are you saying would happen if someone, in your experience, leant on a handrail, purportedly secured with tie wire? A Yes. Tie wire gives a false sense of security, and if a person sees a handrail or other control measure in place, they would feel then, okay, well it is tied up. It must be safe, and would lean against it. It is a natural thing, most people lean on something, and depending on how long that tie wire has been there, it could quite easily be corroded or tied incorrectly, and it could quite easily snap. It is of a mild steel and it is very flexible. 102 He said a handrail of steel tubing could have been used in that section, but expressed the opinion that still would not have been appropriate: A Because, again, people or persons would be crouching down below the handrail. There is always the risk of objects being tipped over the edge, persons dropping tools on persons below, or materials onto persons below. 103 Inspector Jones expressed the view that even if a timber handrail had been in place at the point where Mr Melvaine fell, as some people had suggested, that would have been ineffective as a safety measure for the same reasons. 104 Taken in cross-examination to WorkCover's Code of Practice in relation to formwork, Inspector Jones agreed that it did not make scaffolding mandatory for protecting the edge of buildings, but offered a number of alternatives including a handrailing of dressed timber. However, in the situation of this accident, timber handrails, without panels, were not appropriate because there was a chance of material falling through the handrail. 105 It may be, as was suggested by counsel for the defendant to Inspector Jones in cross-examination, that, assuming a handrail had been in place and Mr Melvaine had said he was working in an upright position, that handrail may have stopped Mr Melvaine going over the edge. 106 However, in the course of doing that work, the employee could also have been crouching, squatting or even lying flat. However, even if all the work was to be undertaken in a standing position, the fact remains that, because that handrail was not filled in by ply or mesh, the risk existed that an employee could fall over the edge. The fact that Mr Melvaine fell was simply evidence of that risk. As was said by Hill J in Tyler v Sydney Electricity [(1993) 47 IR 1 at 5]: The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability. These considerations are, of course, not exhaustive and, amongst other things, the record of the defendant and its conduct in relation to the taking of safety precautions both prior and subsequent to the breach are also very relevant. 107 In cross-examination Inspector Jones was asked questions by counsel for the defendant in relation to a timber handrail claimed to have extended across the gap on level 2 and to have not only been fixed in place by tie wire but also threaded through the scaffold. Inspector Jones had expressed the view that the timbers which provided a handrail were not an effective and safe way of protecting the worker. He was asked: Q What is wrong with it? A I can't see any hoop iron in any of these photographs, very secure, only with the nails, bits and pieces of ply connected together to keep them fixed to each other to prevent displacement. And also on the horizontal one, coming from the steel beam, they are actually relying on the weight of that beam to keep these braces in position. 108 Inspector Jones gave cogent evidence as to why he believed that the handrails shown in the photographs taken by him on 12 May 1998 and tendered as part of the Statement of Agreed Facts, did not conform with WorkCover's Code of Practice June 1998: Q If you have a look at photograph three, part of Ex 1, does the set up there of the handrails conform with the Code of Practice? A No way shape or form. If you look closely at photograph number three you can actually see some tie wire being used there as well. In the first upright it has crossed over a piece of ply and appears to be affixed to the upright; there is certainly no bolt there. … A Well, the timber handrails that are provided in this picture number three certainly do not go past at least one metre above where the gentleman is tying the stirrups to the steels beam and the timber is not dressed and looks as though it's secured together with nails and braced back with timber ply. There's no infill panels to prevent any material or objects, whether tie wire or steel reel wire, from falling through and possibly seriously injuring someone down below. … A Can I add, the timber depicted in photograph one didn't pass through the frame to the other frame. Even if it had of passed through the frame through to the other frame that would have been in front of the column which meant the individual who would have to tie the stirrups to the bars would have had to go on the other side of the handrail plus on the edge of the slab. Q Can you explain in a bit more detail why photograph one of Ex 1 in your view did not and would not comply with the June 1998 Code of Practice? A We don't have any infill panel there, we don't have handrails, we don't have toe holes. On the day of inspection the handrail on the timber was not secured to the scaffold, not appropriately fixed or positively fixed. So there was always the chance again on that level of material being kicked over the edge or dropped over the edge and again exposure to persons of possible risk or injury 109 I accept the evidence of Inspector Jones. 110 I find that the timber hand rail as constructed was of minimal use as a safety measure protecting against a fall. Circumstances of the Accident to Mr Melvaine 111 The last item in the prosecutor's Statement of Disputed Facts was that: d) On 12 May 1998 Melvaine was carrying out steel fixing activities of tying a column on the level 2 portion 4 concrete slab, which was the first concrete slab above the ground level, ("level 2 concrete slab") on the southern side of the Building. Another employee of C&H was also present on the level 2 concrete slab. Melvaine had put some wire around a bar and stirrup to tie and was pulling the wire under pressure when the wire snapped. He stumbled backwards about 2 steps and fell over the edge of the level 2 concrete slab. 112 Mr Melvaine described how he fell: Q When you fell, can you tell the Court what you were doing? A I was tying steel rods in a, like a pylon thing, and had one leg around, to hold myself, and I was tying up and pulled the tie back to tighten a bit more, so pulled back and gave a twist to tighten it and just snapped and I went back (demonstrated). Q Were you using anything to tie it up with? A Yes, my nips. Q What are nips? A Cutters. Q Like pliers? A Sort of like pliers, clamps, I think. It did break the tie I was tying up, it is a bit, I have swirled a loop and twist her up and its snapped. Q What happened to you nips? A They were in my hands. Q Why do you say you had your leg around? A I had my nips in one hand and put the line through to the other and I had my leg around the pylon, I can't fly. Q Why did you think you needed to put your leg around the pylon? A I was on the outside of the building. Q Why were you required to perform that job, that position on the outside of the building? A There is a steel rod lose [sic] on that side so I went around and tied it up. Q Where were you? A I was on the outside. Q Second level? A Yes. Q Did you see if other people were working on that level? A Yes, there were others, in the middle, steel tie ups, put the rods through a big, the middle pylon, a lot bigger, it was not a small one like I was doing. At the end of the job you walk around and check what needed ties and just secure and then move on to something else. Q Was there any hand railing. You refer to your position on the edge of the building, as far as you were located, was there any hand railing? A No, there was nothing behind me because I was hanging on with my leg. Q What happened when the tie broke? A I had gone backwards, I fell, I think I remember going like that (demonstrated). Q You just made a motion with both hands out and head went back? A Yes, I woke up on a stretcher. … Q You refer to the next thing you woke up on a stretcher, it was still as the construction site? A Yes, they were carrying me off the floor, I don't know. I'm not sure where I was when I woke up. There were a number of people carrying me off and telling me to keep still. … Q Do you recall coming to and on a stretcher taken somewhere? A Yes, apparently I was in an ambulance and then taken around the fence to the hospital, I woke again in the hospital. That is what I remember of it. I was trying to pull this thing [neck brace] off my neck and [they] kept telling me to stay still. … Q Can you recall talking to anybody when you were on the stretcher? A Not on the stretcher, no. Q You refer to the hospital, can you remember what state or able to talk to anybody when you got to the hospital? A Not when I first got there I remember afterwards sitting in the waiting room, waiting for my father to pick me up. 113 (That last answer is in line with Mr Melvaine's statement that he could not remember talking to the police. Sergeant Salafia said that Mr Melvaine had been lying down in a treating cubicle at the time.) 114 Mr Melvaine said he was standing, tying steel on the column at chest height (he is about 5 feet 10 inches tall). There was no handrail. He said: Q I should clarify photograph 1, I think you have already said there was no handrail? A No Q On the outside of the building? A No, I was hanging on with my legs, otherwise I would have lent [sic] against it or something. Q Certainly in the area of the column where you were working on it, it was in the state I am talking at the moment just near the column, that there was no fall protection in place? A No. Q In the area you were working? A There is nothing for me to hang on to, nothing to stop me falling off, and I was hanging on with my legs. 115 Contrary to the evidence of Mr Thew, Mr Melvaine said he did not go back to the site on 12 May 1998 because he "was in no condition to do anything". He went back a week later. 116 Mr Thew's evidence was that Mr Melvaine had said while he was lying on the ground after he had fallen, that: All he said was he was working over near the side there where he shouldn't have been, he dropped his nips and climbed down the side to get them. 117 In his Proof of Anticipated Evidence, Mr Thew said, that while lying on the ground, Mr Melvaine had said words to the effect: I was working with my crew but they told me to go away and sleep it off because I was drunk. I went on a binge last night. I dropped my nips over the side and climbed over the handrail and down the outside of the scaffolding which goes to the third floor when I fell. 118 Mr Melvaine said he did not remember Mr Thew nor whether Mr Thew had approached him after he fell off the building. When asked in cross-examination whether he had made those statements to Mr Thew, Mr Melvaine replied that he recalled what happened just before he fell, but he did not recall making those statements. He denied having difficulty in locating his nips while he was on Level 2 or dropping them over the side. 119 Mr Thew said he had recorded the conversations with Mr Melvaine and with "Santa Claus" in his diary, but that diary could not be found when looked for in relation to this case. 120 The difficulty with Mr Thew's evidence is that the photographs tendered in evidence showed no handrail and, furthermore, there was no scaffolding to Level 3 that would have allowed Mr Melvaine to climb down. 121 Mr Thew accepted in cross-examination that there never was any scaffolding going to the third floor or level 3 at the time Mr Melvaine fell. He said that Mr Melvaine told him that he climbed over the scaffold. Mr Melvaine never told him that he climbed over a handrail. He said that there had been a hand rail in front of that steel column, for Mr Melvaine to climb over early in the morning, but when he attended where Mr Melvaine fell, he did not look up and see whether there was or not a timber railing or hand rail across that area. 122 Having taken the Court to Mr Thew's evidence, both oral and in his Proof of Anticipated Evidence, the prosecutor submitted the Court could find that the evidence of Mr Thew in those respects as to what he said Mr Melvaine had said, was unreliable. The prosecutor submitted that the Court would not be satisfied on the criminal standard beyond reasonable doubt in relation to what Mr Thew said Mr Melvaine was undertaking at the time that he fell. It was not thought necessary to go so far as to suggest that he was deliberately giving false evidence or the like. It was just the problem that occurs when people are reconstructing matters many years after the events and particularly without the benefit of any diary or contemporaneous record or the like to assist. 123 Mr Thew accepted that what was in his anticipated proof of evidence at paragraph 11 was plainly wrong, where he said Mr Melvaine said he climbed over the handrail. He also accepted that it was plainly wrong for him to state in his anticipated proof of evidence, to which he agreed and said was correct, that Mr Melvaine ever said, that he climbed over the hand rail and down the outside of the scaffolding "that goes to the third floor when I fell". 124 In any event Mr Thew was not recording what he said had happened, but what he said he heard Mr Melvaine saying, while Mr Melvaine was lying on the ground, Mr Melvaine having, according to the Agreed Statement, been briefly unconscious after having fallen approximately 4.7 metres and after having the night before imbibed a fair quantity of alcohol. 125 I am not certain on examination of Mr Thew's evidence in cross-examination that he accepted that he had incorrectly recorded what Mr Melvaine had said to him when Mr Melvaine was lying on the ground after the fall, or whether he accepted that what he said he correctly recorded as being said by Mr Melvaine could not have been factually correct, because there never was any scaffolding at that time which went to the third level. 126 On this issue the prosecutor also relied upon the evidence of Sergeant Salafia. 127 Extracts from Sergeant Salafia's report of his attendance at the site after the accident are set out below: … It is unclear as to whether Melvaine has fallen about 4.7 metres from Level 2 to the ground coming to rest on sheet metal, or he slipped in the process of climbing/descending a scaffolding set up from the ground to Level 2. A number of workers were spoken to but deny seeing the victim fall or what had actually happened. It is believed that he was unsupervised and alone at the time. … He was spoken to by Police and has no recollection of how he became to be injured. He has no recollection of falling or slipping from the scaffolding. It must be noted that whilst speaking to Melvaine, a detection of alcohol could be smelt on his breath. He was questioned regarding the alcohol and admitted consuming 6 schooners of beer at two pubs in Mt Druitt the previous night and further had consumed half a bottle of scotch with coke. … … A number of foremen and supervisors have been spoken to regarding this matter but can add nothing further to indicate exactly how the accident happened. 128 Sergeant Salafia said that the assertion that Mr Melvaine may have slipped in the process of climbing or descending a scaffolding set up from the ground level to level two would have been from information supplied by fellow steel fixers. He had spoken to a number of persons on site, but, although he described some of them as "steel fixers", those documented in his notebook were head supervisors or managers. He also recalled "speaking to a number of workmen who did not want to disclose their particulars for what ever reason, they didn't want to become involved". There was a pair of pincers on the ground when he got there. He saw the pincers in the position around where there was blood - that is level one, on the earth. "There was a comment made that it looked like he had dropped them either retrieving them [or] when he fell but no-one can say how the accident happened". 129 No-one was an eyewitness to the accident. 130 The prosecutor submitted that the COPS entry does not provide a source of negativing its submission as to the circumstances of the accident because, as the sergeant indicated, he had not seen any eye witness but had to rely upon hearsay concerning what had happened to Mr Melvaine. The Court has direct evidence from the injured worker and it is submitted the Court would accept that evidence beyond reasonable doubt. 131 The COPS entry was based on, in effect, hearsay of what different people were saying. Some people were reluctant to provide their particulars and the Sergeant said that for this type of industrial accidental he did not have any power where he could force them to provide their particulars. 132 Mr Clissold's evidence as to the cause of Mr Melvaine's fall and whether he may have been under the influence was hearsay from mostly unnamed persons and that "hearsay" could probably be more correctly labelled as scuttlebutt or rumour, in that there were no eye witnesses to the accident. 133 The evidence indicates that Mr Melvaine suffered some confusion after the fall. The Hospital's report states that he was "confused on arrival". There are differences in his evidence and that of Mr Thew and the Hospital report as to what his activities were later, for instance, as to whether he tried to return to the work site. He could not remember talking to Sergeant Salafia. 134 However, Mr Melvaine's evidence was quite definite that he recalled what happened just before he fell. The description of what he was doing was quite plausible and it has not been suggested the work would not be carried out in the way he described. 135 I accept that the circumstances of the accident were those described by Mr Melvaine. Drunkeness allegation 136 This issue was raised by the defendant as to mitigation of culpability. 137 In relation to the defendant's contention that Mr Melvaine was intoxicated on the day of the accident, Mr Docking, at the outset of proceedings, confirmed that there was no dispute between the parties that Mr Melvaine had been out the night before and had been drinking. The dispute between the prosecutor and the defendant was whether Mr Melvaine was intoxicated on site and then if he was intoxicated to what extent. It is accepted that as this is a matter of mitigation raised by the defendant it has the onus on the civil or balance of probabilities. On one side of the equation the Court will have to consider now the direct evidence of Mr Melvaine which was not available to Boland J in Fernandes Constructions. Mr Melvaine accepts that he had been out the night before, been at some pub or pubs and had consumed an amount of alcohol but says that when he went to work he was not under the influence. 138 On that side of the equation of Mr Melvaine is the evidence of Mr Coady who spoke to Mr Melvaine albeit for a small number of minutes on the morning of 12 May 1998 and then again was in the cage with him when he was taken away from the construction site. His evidence is that there was no indication of any smell of alcohol or the like. 139 What is on the other side of the equation is a police officer who arrives later, sees an injured worker who is lying down, who has been bleeding, who has lacerations and the like and the police officer can smell alcohol. The observations turn out to be a perception of smell because the Sergeant in re-examination confirmed that there was no problem with the way Mr Melvaine spoke. He was coherent. The Sergeant was concerned that Mr Melvaine was in effect a little bit reluctant to talk to him. Now even people without any prior criminal history or exposure to the law have that reluctance. It may well be understandable from Mr Melvaine's background why he is reluctant to talk to the police. There is no suggestion of slurred speech. All the suggestion relies upon is on the scale of three to four out of ten he could smell alcohol. The Court would be aware there are vast differences in the consumption of alcohol by members of the community and most people's experience is that they have come across persons who have drunk the night before can still smell the alcohol but there is no suggestion that they are intoxicated. 140 There is also the evidence of Mr Thew where he gives evidence about what he says he could smell but for the reasons already submitted it was suggested the Court will find on all aspects that Mr Thew so far as what he said he saw on 12 May 1998, is an unreliable witness. 141 There is also the various bits of scuttlebutt and rumour and hearsay that was cross-examined from people like Inspector Jones, Mr Bullock and the like about what was being talked about and spoken about on-site and the suggestion that Mr Melvaine was under the influence. The Court has had the advantage of seeing Mr Melvaine give evidence and heard how he gave his evidence. The above matters were advanced to the Court for it to decide whether it is satisfied on the balance of probabilities that he was not only intoxicated but intoxicated to an extent that would impair his ability to perform his steel fixing work. 142 On the other hand, counsel for the defendant placed different emphasis on the evidence adduced. 143 Sergeant Salafia expressed a view that to some extent Mr Melvaine was under the influence of alcohol and he made that observation a couple of hours after Mr Melvaine was admitted to hospital. At that time on a level of 1 to 10 he suggested that in his professional opinion Mr Melvaine was intoxicated to 3 or 4, just under the half way scale. Bearing in mind Mr Melvaine attended work at 7.30 in the morning, it must be have been obvious to those who spoke to him on that day that he was indeed under the influence of alcohol. 144 The extraordinary evidence of Mr Coady, who was somewhat reticent in his acknowledgment was that had he smelt alcohol on Mr Melvaine as the police officer did hours later that day, he would have removed him from the site. The Court might infer that Mr Coady would not have really cared one way or the other, because it is now apparent that it was Mr Coady who was drinking with Mr Melvaine on the night in question, something which was denied by Mr Melvaine. He said there were no other employees on the site who had been drinking with him when he went to the hotel with his mates. 145 That is important because it would be wrong and grossly unfair to sentence the State of New South Wales on the basis that its failure and acknowledged failure to provide a safe system on level 2 and 3 led to the injuries suffered by Mr Melvaine. 146 It is apparent that Mr Melvaine does silly things when he's been drinking, that's apparent from the evidence he gave yesterday. He pretended that if he felt intoxicated he would not have attended the site because he might have put his own life at risk as well as others. When one looks at his criminal history on two occasions he has been convicted of drink driving in mid range and on two subsequent occasions convicted of serious criminal behaviour and criminal damage and the like where he said those times he was under the influence of alcohol. 147 There is some evidence and evidence which the prosecutor has not rebutted. Mr Melvaine may have been proceeding down the scaffolding to collect his nips which he had dropped over the side. Cross-examination of Mr Thew at length made some inroads into his evidence as the term of the conversation and the like. But it cannot be the same case as to Mr Thew's version of the conversation with Mr Melvaine where he said he been drunk and his fellow workers had sent him away to sleep it off and that he had dropped his nips and come down the side of the scaffolding. Similar happenings are referred to in the police accident report. Sergeant Salafia indicated that information had come to him from fellow steel riggers and it was suggested that he had heard from some of those persons that they had sent Mr Melvaine on his way regarding him as being unfit to work. 148 The Sergeant was cross-examined and except for Mr Coady there was no reference to any employee of the steel rigger classification in his note book, but he did include management in his note book. That is fairly compelling evidence that despite cross-examination, his conversation with this man was not something he recalls that Mr Melvaine admitted to him. He had been told to sleep it off and that having dropped his nips over the side of the building he clambered down to get them. If that is right, no system that the defendant would have had in place, unless one completely enclosed the area which it was never contemplated to do, no system would have prevented what happened on that day. Intoxication claim - Consideration 149 Mr Melvaine did not remember talking to the police, and telling them what he had drunk the night before but said that he was accustomed to drinking quantities as described - 6 schooners and half a bottle of scotch. He said in cross-examination that he could not remember how much he had drunk. He has "a binge every now and again" and had been twice convicted for driving a motor vehicle under the influence of alcohol. The other two offences on his record had been related to alcohol. 150 Mr Melvaine denied being drunk on 12 May 1998 saying that if he had been drunk in the morning he would not have gone to work. He did not think he was drunk when he turned up for work at 7 am on 12 May 1998. 151 I remark that I do not know that Mr Melvaine would have been the best judge as to whether he was drunk or not when he turned up for work at 7 am on 12 May 1998. 152 Inspector Jones could not remember Mr Melvaine being described as "drunk" or "intoxicated" by the various people he talked to but possibly, "affected by alcohol". As far as Inspector Jones could remember, the police officer had indicated to him that Mr Melvaine's breath smelt of alcohol. Frankly, I think Inspector Jones summed up the worth of much of what I would describe as the employee derived "scuttlebutt" by saying "If I have a middy, if you have a middy, our breaths can smell of alcohol. It does not mean that we are intoxicated". 153 After the accident Sergeant Salafia interviewed Mr Melvaine while Mr Melvaine was lying down in a treating cubicle in the casualty section of the Hospital. His notes of that interview supplemented by his oral evidence shown within square brackets, include the following: Drink:- ½ bottle/Scotch Coke nil alcohol [taken from him] 4 schooners New Major Druitt Pub 2 schooners Mt Druit Millas [or Millers]. 154 Amongst the incident details was provision in that report for notes as to "associated factor". Against that line, Sergeant Salafia had noted "alcohol related - victim drinking prior t - [to incident]. (Sergeant Salafia clarified in oral evidence that the computer printout had cut out the words "to incident"). 155 The sergeant said that "to a degree" it was correct that he had formed the view after speaking to Mr Melvaine that at the time of the accident he was intoxicated. 156 That answer was taken up by Mr Docking in re-examination: Q. What did you mean by the reference "to a degree"? A. He was not overly, if you put it on a scale of from one to 10 I would say three, four, level of intoxication. He was not overly intoxicated. It was more his, the alcohol smell emitted from his breath when I was speaking to him. He was not all over the place. I could smell intoxicating liquor on his breath. Q. When you say "he was not all over the place" was that in terms of how he spoke when you asked questions - he was lying down? A. Spoke, he was very reluctant to actually speak to me. I wouldn't be able to answer that question. He was coherent but I formed the opinion he had been drinking prior to the incident. Whether it was five minutes or an hour later I could smell alcohol on his breath. Q. You also agreed to Mr Rushton's suggestion your view was based on observations. Again I want to get your assistance to explain what that means, "your observations"? A. When I spoke to him in the casualty cubicle after he had been seen or treated his manner, whether it was directly towards me or the uniform I wear is another issue but the observations I got was that the smell emitting from his breath I could detect alcohol and that is how I observed him. Q. So not really an observation, it is a sense, a perception based on smell? A. Well, observations, when you see something. Well, I could smell alcohol on his breath, yes. 157 In cross-examination, Mr Coady said he did not see, hear or experience anything on 12 May which suggested to him that Mr Melvaine may have been intoxicated. 158 He knew Mr Melvaine had a few drinks the night before because they all drank at the same hotel, and Mr Coady was there with him. Mr Coady had not counted the number of drinks Mr Melvaine had had but said he saw him in the morning and he did not appear to be affected by alcohol. This issue come out after he fell. Mr Coady said that he would not let anybody start work that was affected by drugs or alcohol. He did not smell alcohol on Mr Melvaine's breath. He only spoke to the man for 10 minutes when he started work. He guessed that if he had smelt alcohol on his breath he would not have allowed him on site. 159 He had not heard it suggested by any of the workers that any worker had refused to work with Mr Melvaine on the day because Mr Melvaine was drunk. 160 Mr Coady in re-examination said that alcohol and drugs are a real problem in the construction industry, saying: Q. Prior to Mr Melvaine's fall, was that your view? A. It has always been a problem because it's in the culture of the game and it's only now they have started to try and get it out of it. I mean, the thing is if you did a big day the idea was they would bring a box of beer on site and drink it on site. I don't agree with it but that's always been the case - concretors, everyone, that's always the way it's been done. 161 In relation to the claim that Mr Melvaine was drunk and his fellow workers had sent him away to sleep it off, the prosecutor relied on Mr Thew's evidence. 162 Mr Thew said that when he was attending to Mr Melvaine he smelled alcohol on his breath. According to Mr Thew, Mr Mevaine had said: Q. Did he mention anything about alcohol? A. Yeah. He said he had been on a binge all night and that he was drunk and he was supposed to be working with his crew but his crew didn't want him to work with them because he was drunk, they tried to get rid of him because they wanted him to sleep it off. He wandered off by himself. That's how he dropped his nips. 163 Reference to "all" night was made by Mr Thew in his oral evidence but not in his Anticipated Proof of Evidence where he referred to "last" night. 164 Mr Thew said that an employee, nicknamed "Santa Claus", had told him about an hour after the fall "That Steve was drunk and he didn't want him working again and sent him off to sleep it off". 165 About an hour and a half after the incident, he had noted what "Santa Claus" had said in his diary. When the case came up and they went to get the diary from the back room of the Public Works site office where it was kept, it, together with the first aid book, had disappeared. He understood that it was all put in the archives. 166 Mr Melvaine in cross-examination said he did not think so, did not know and did not recall that "Santa" had said that. 167 "Santa Claus", although later identified as "Lex" by Mr Melvaine was not called to give evidence. 168 Contrary to the evidence of Mr Coady, Mr Thew said that he did not see Mr Coady in the cage that lifted Mr Melvaine out from the accident site, nor did he see Mr Coady in the area. In the cage "was me, Joe and Steve". 169 That last evidence is in line with Mr Coady's evidence before Boland J that the only other person next to Mr Melvaine after the fall was the dogman and Mr Coady was in the cage with Mr Melvaine when he was lifted out. 170 Mr Thew was adamant that Mr Melvaine had returned to the site after being taken away by ambulance on 12 May 1998. He conceded he might have been wrong about the time "a bit after lunch" ie around 12.15pm but insisted Mr Melvaine did come back and wanted to start work again. 171 Although counsel for the prosecutor described Mr Thew's evidence as "untenable", I do not discount that particular evidence even though Mr Melvaine said he had not gone back. It is noted in the hospital records under treatment plan: 1410 Steven insisting on going out for a smoke & get his gear from workshed etc. Allowed out for a smoke & decamped. 1500 Returned - continues … 172 It should be kept in mind that the accident occurred within the hospital grounds, though I do not know the distance from the emergency department to the workshed. 173 The record shows that Mr Melvaine was discharged from the Hospital at 1630. 174 As to claims that Mr Melvaine may have moved between a number of teams because they refused to work with him, Inspector Jones said he thought Brian Woodhouse had mentioned it to him and also, though he was not sure, Carlos Goncalves from Fernandes Constructions. 175 Mr Woodhouse was not taken to that particular matter in cross-examination. He said that he thought it was Mr Bernie Hilton, a project officer with the Department who had made the remark that the injured employee may have been intoxicated at the time of the accident. Neither Mr Hilton nor Mr Goncalves were called as witnesses in these proceedings. 176 Inspector Jones also said that Mr Farley in a statement made to the Inspector had made some reference to the suggestion of alcohol. The statement was not tendered nor was Mr Farley called to give evidence. 177 By the time Inspector Jones went to contact Mr Melvaine on the day of the accident, Mr Melvaine had already left the hospital. 178 The Court has before it the hospital record in relation to Mr Melvaine's emergency registration which shows that he arrived by ambulance at 1146 hours. The summary of clinical condition includes the statement "closed head injury - unconscious at scene, confused on arrival". 179 At 1408 it was recorded that the patient wanted to leave the Department and was advised against doing so. A doctor recorded him as being "alert & lucid & oriented". (As already noted elsewhere Mr Melvaine decamped at 1410 but returned at 1500.) 180 Just how lucid Mr Melvaine really was during the day is a matter of conjecture. He was stated to be confused on arrival at the hospital at 1146 but alert and lucid at 1408. He was interviewed by Sergeant Salafia but could not remember that. The Sergeant said he could smell intoxicating liquor on Mr Melvaine's breath but "he was not all over the place". Mr Thew said that Mr Melvaine had tried to come back on to the site, a claim denied by Mr Melvaine, but supported by the hospital records. 181 On the one hand, the gaps in Mr Melvaine's memory may have been caused by the physical effects of the fall. On the other hand, they have been the result of a residual degree of intoxication. 182 I have not been assisted by any expert evidence as to the possible effects of the fall and loss of consciousness on Mr Melvaine's lucidity not only immediately following his fall from level 2 and at the time Mr Thew was administering first aid, but also later in the day, when the evidence suggests he had every appearance of acting normally. 183 The defendant contends that Fernandes or C&H Constructions were more culpable than it was in regards to this accident in that one or another of them permitted a drunken worker, ie Mr Melvaine, to be on site on the day of the accident. Indeed, it was submitted that Mr Melvaine was "substantially intoxicated on site". 184 In order for that submission to prove of assistance to the defendant as to culpability and mitigation of penalty I would have, in accordance with the principle enunciated in Olbrich, to be satisfied, on the balance of probabilities, that that contention was grounded in fact. I am unable to be so satisfied. Proof of a matter, even if that proof is only to the extent of the balance of probabilities, must rest on material more substantial than the largely hearsay or surmise as presented in the evidence before the Court. The most cogent evidence as to intoxication was that of Sergeant Salafia. Sergeant Salafia has been a policeman for 23 years so that his evidence as to Mr Melvaine's sobriety could be given credence. However, on examination his opinion was based, firstly, on the fact that he could smell alcohol on Mr Melvaine's breath and, secondly, on the fact that Melvaine had told him that on the previous evening he had consumed quite a considerable amount of alcohol. The sergeant estimated that he had seen Mr Melvaine "a couple of hours later" following the sergeant's arrival at the accident site. 185 I emphasise what was said in Briginshaw v Briginshaw [(1938) 60 CLR 336 at 361-362]: … Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences . (my emphasis) Penalty - Consideration 186 The principles proper to be applied in the Court's consideration of penalty in this matter are well known. Relevant principles have been taken into account, but, in particular the following: (1) Principal and particular purposes of the Occupational Health & Safety Act 1983 are: (a) The protection of workers from breaches of safety, health and welfare; and (b) To compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. [See: WorkCover Authority of NSW v Air Express International (Australia) Pty Ltd (1996) 83 IR 64; Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388; and Alcatel Australia Ltd v WorkCover Authority of NSW (1996) 70 IR 99 at 106. See also WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Ltd & Anor [2000] NSWIRComm 277 at 47] (2) The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence. The maximum penalty is available to be utilized in a "worst case scenario". However, that does not mean that the maximum is only applicable in circumstances where the Court can not envisage a worse case or that some lesser penalty is apposite because the sentencing court can envisage a more heinous factural scenario (see Camilleri's Stock Fees Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 at 698). (3) The primary factor to be considered in determining the sentence to be imposed is " … the objective seriousness of the offence charge" [ WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd NSWIRComm 39 at p 31 per Wright and the case cited therein.] (4) The existence of a reasonably foreseeable risk to safety is a significant aggravating factor to be taken into account in assessing of the gravity of an offence. [See: Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) Kembla Coal and Coke Pty Ltd IRC 142 of 1998 Unreported per Walton J [VP] @ 37-38] (5) The gravity of the risk to safety is relevant as a measure of the seriousness of an offence [See: Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476] (6) Neglect of simple well known precautions to deal with an evident and grave risk of injury, of which the defendant was fully cognisant, take a matter towards the "worst case" category on the continuum between zero and the maximum. [See: Inspector Roy Thomas Milligan v Roads and Traffic Authority Ind. Ct of NSW Unreported 29 August 1996 per Fisher CJ. (7) The objective seriousness of the offence, without more, calls for the imposition of "a very substantial penalty … to vindicate the social and industrial policies of the [1983] Act and its regime of penalties". [per Fisher CJ Inspector Graeme Mauger for the WorkCover Authority of New South Wales v P Ward Civil Engineering Pty Ltd (ACN 001 069 254) CT 1212 of 1994 21 December 1995 per Fisher CJ @ p 10. 187 In relation to the place of deterrence in fixing the penalty to be imposed, it was said in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [(2000) 49 NSWLR 610 at [75] [76] [77] ], as part of a detailed consideration of that matter: 75 … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) SASR 417 at 422 … 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offesnce … 77 In sentencing a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. … However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive: WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at [46]. 188 In my consideration of penalty, I have had regard to what was said by a Full Bench of this Commission (Wright J President, Walton J Vice-President and Hungerford J) in Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 at [37] ): 37 The appropriate use of guideline judgments has received some attention recently following the judgment of the High Court in Wong v The Queen and the subsequent judgment in Cameron v The Queen (2002) 76 ALJR 382. However, any uncertainty has been removed by the judgment of a five member Bench of the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142 which was determined after this matter was heard. In R v Sharma , Spigelman CJ, with whom Mason P, Barr, Bell and McClellan JJ agreed, considered that the construction of s 22 of the Crimes (Sentencing Procedure) Act 1999, having regard to its statutory and legislative history, including the Minister's second reading speech, resulted in the High Court's observations in Cameron v The Queen not being applicable in New South Wales; see also R v Cook [2002] NSWCCA 140. The Court also confirmed the continuing applicability of R v Thomson and Houlton . Whilst not having had the opportunity of submissions from the parties as to R v Sharma , we consider it appropriate to apply that judgment in these proceedings. We confirm the applicability and binding nature of the guideline judgment in R v Thomson and Houlton to sentencing proceedings for offences under the Occupational Health and Safety Act . 189 It was agreed that the defendant was in control of and supervised the construction site. Mr Clissold said that the role of the Department of Public Works and Services on the project was that it was the builder and subcontracted all the work out. 190 Mr Coady said that the Public Works Department was responsible for all the safety on site. He said that at the time of Mr Melvaine's fall there was not an elected safety committee as set down under the relevant award. There was just a sort of appointed safety committee with the Public Works. Later a safety committee was elected. 191 It was submitted by counsel on behalf of the defendant that the failure to install scaffolding was an unsatisfactory way to proceed "having regard to the fact that the perimeter of the building had not otherwise been secured by the head contractor". The primary responsibility for installing scaffolding around the perimeter was that of the defendant, not that of the head contractor. It was only when the defendant had failed in its responsibility, that Fernandes was forced to take the steps it did with the handrail alternative. 192 The defendant does not appear to have a full appreciation of its responsibilities. It was submitted that Fernandes or C&H Constructions knew, at any particular time, where employees might be "and it was they who, in a very real sense, permitted Mr Melvaine to be placed in a position from where he ultimately fell". It was the defendant who was primarily responsible for having the safety measure of perimeter scaffolding in place so that, at any position where Mr Melvaine or any other employee might fall, protection was in place to guard against that occurring. 193 It was submitted by counsel for the defendant that "although the State would still be guilty of a breach of the Act because the system was acknowledged to be unsafe, it may not have attracted the level of penalty it might otherwise do having regard to Mr Melvaine's condition". I repeat my earlier finding that the evidence has not satisfied me that Mr Melvaine was intoxicated at the time of the accident. In any event, the risks to which Mr Melvaine were exposed at the defendant's place of work, were exactly the same risks to which Mr Melvaine, or any other employee, whether sober or affected by alcohol, was exposed at that part of the building because of the defendant's failure to supply the perimeter scaffolding and all that flowed from that as to the ineffective substitute safety measure of handrails. 194 Mr Melvaine fell from Level 2 more than one month after Fernandes Constructions had, in writing, on 8 April 1998 advised the defendant that it was essential that perimeter scaffolding be in place prior to Fernandes pouring concrete for the Level 2 slab either on, or soon after 17 April 1998. 195 In Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 [(2000) 103 IR 143 at 145], a Full Bench of this Commission (Wright J President, Walton J Vice-President and Kavanagh J) stated: … It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimized the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. … 196 The Full Bench also noted (at p 145) some of the observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited [(1995) 100 IR 248 at 257]: … The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. Evidence was given that the shoot of the commercial was behind schedule and there was pressure to proceed. … 197 The very fact that perimeter scaffolding was required is evidence that there was an obvious and foreseeable risk. The measure to obviate that risk was equally obvious - to erect that scaffolding. It is accepted that the prime responsibility to do so was that of the defendant. The principles applying in such circumstances have been stated by the Commission for many years (see, for example, Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30/6/92 at 9) and Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [(1999) 90 IR 464 at 476]. 198 I find that the offence was a serious one. 199 I also find that the defendant had no less responsibility for the particular risk to employees that was evidenced by Mr Melvaine's fall than did Fernandes. 200 The defendant's on site approach to safety was inadequate. Its personnel were not properly trained. 201 At the time of the incident, Mr Clissold, who had completed his trade as a carpenter in 1996, was a cadet employed by the PWD. Mr Clissold did not think he had been given any training within the Department as to what was appropriate fall protection. He had had some training in safety regarding the OH&S Act 1983, but could not give evidence as to the extent of that training or whether it covered reg 73 or reg 154 of the Construction Safety Regulations. He did not know if a copy of those Regulations was present in the Department's supervisor's office at the Nepean project nor had anyone from the defendant shown him a copy of those Regulations. 202 He told Inspector Jones on 18 May 1998 that the area where Mr Melvaine fell was supervised by Bernie Hilton, a project officer and himself. On 11 May, probably "mid the 11th", he was in that area reviewing that area and seeing what was going on with the job there. Mr Clissold said he had the wire in mind when he advised Inspector Jones that the handrail was not secured, when he was on level 2, probably mid 11 May. Probably because the handrail was slid in between the frames to stop it from falling he believed it was safe like that. 203 Paul Joseph Thew has been employed by the Department of Public Works and Services for approximately 20 years, and in 1998 was based at Nepean Hospital, Kingswood. He held various positions on site, one being first aid officer, safety officer and a member of the safety committee. He held a Red Cross certificate for advanced cardiopulmonary resuscitation and had a certificate in Occupational First Aid. 204 Mr Thew was employed at the time Mr Melvaine fell, as part time safety officer. After Mr Melvaine fell Mr Thew changed from part-time to full time safety officer. Every morning he used to go around the site "and check for any rails down or anything like that". When he undertook an inspection and saw for example, a timber hand rail had been removed, he would re-attach the hand rail tying it to the existing structure using tie wire. 205 In re-examination Inspector Jones made the following comments as to tie wire: … Some people unfortunately still use tie wire in the industry and that is where a lot of accidents have occurred. … 206 Inspector Jones also emphasised that the wire gave "a false sense of security" because it "would not withstand the weight of an average person". 207 Mr Thew did not receive any instructions or guidance from the Department about what was in the Construction Safety Regulations, though he said he had read them. Specifically as to occupational health and safety Mr Thew's training before Mr Melvaine fell was that he had training on safety committees, "and that is about it". That training on safety committees was a quick course on how one should be a participant on occupational health and safety committees. 208 Despite being a part time safety officer, it was clear Mr Thew had not even a superficial knowledge of the requirements of the Construction Safety Regulations, having "browsed through them slightly". 209 At the time of the incident to Mr Melvaine, Mr Thew accepted he did not know what reg 154 provided for as to the securing of handrails. He had not any time stopped work because the handrail was not secured consistent with reg 154 nor because of the lack of the required overhead protection on level 2 and level 3. 210 Prior to Mr Melvaine falling, he was not familiar with the contents of an extract from the Scaffolder's Guide that spoke of fully enclosed mesh and accepted that mesh was not on levels 2 and 3 to secure those areas for safety. 211 After Mr Melvaine fell the area was not immediately barricaded off and the scaffolding was only put in place, about five days later. The contractors had not been immediately directed to stop work in the area. 212 In terms of occupational health and safety over the years Mr Thew had been involved in some committees. As at 12 May 1998 not only were there no elected employee representatives at the Nepean Hospital on the safety committee, "they didn't have a safety committee then no", even though the project been going at that time Mr Melvaine fell for "Easy, eight months". It was a couple of weeks after Mr Melvaine fell, that a committee with elected employee representatives was set up for that project. 213 As to the induction of employees on site, the upshot of Mr Thew's evidence was that there was an induction, he thought every Monday, at which he read the induction and signed the employees in. Mr Melvaine said he had not had an induction and Mr Thew said he had not given him one. 214 It was agreed that the steps taken by the defendant after the incident included: (a) The particular area of the construction site was cordoned off in terms of access until the Department caused the erection of scaffolding. According to Bullock, there was other work performed at other places on the construction site by Fernandes during the period of time it took the Department to erect the scaffolding. (b) A part time safety officer from its Sydney region became full time on the construction site. (c) A month later, a part time consultant was engaged. (d) The work method statements submitted by all contractors were reviewed to ensure that they met the requirements of the project and each contractor was then monitored. 215 However, in giving his evidence Mr Thew did not appear to have been any more familiar with the requirements of the Construction Safety Regulations 1950 than he was in 1998. He did not refer to any further training instituted by the defendant since then in relation to the specific requirements of the various rules and regulations as to safety on construction sites. 216 I do not regard the fact that Mr Clissold saw the defendant's legal advisers on 15 July, the day he was summonsed by the prosecutor to give evidence and by whom his expenses were paid, rather than attending a meeting at 9am with the prosecutor's legal representatives, as derogating from the defendant's co-operation with WorkCover. 217 It was accepted on behalf of the prosecutor that in considering penalty the Court should take into account, in favour of the State and, in particular, its emanation as the Department of Public Works, the size of its apparent work force, the number of work sites and the nature of the work carried out in the building and construction industry. 218 Counsel for the prosecutor said that the defendant should be given credit for one of the preventative measures that the Department of Public Works had introduced on the Nepean Hospital project that being to "have the CFMEU carry out a drug and alcohol seminar on the 3 June 1998 which was attended by all persons on site at that time as we recognise a problem does exist in the construction industry in regards to alcohol and drug abuse. We will continue with seminars as trades change, we will also be looking at time frames which persons on site have there [sic] crib breaks". 219 In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) (No 3) [2002] NSWIRComm 1, [(2002) 112 IR 141] Hungerford J considered the record of the defendant's prior convictions, and in [28] restated his earlier conclusion that prior convictions of the Crown generally were relevant although a most relevant consideration would be if no prior convictions existed in relation to the department concerned. 220 Counsel for the defendant relied upon the decision of Talbot J in Environment Protection Authority v The Crown in the Right of New South Wales [2002] NSWLEC 52 (19 April 2002) to support his submissions that the approach in that case, which placed the offence there considered in the lowest range was appropriate to be applied in this case. In the light of the Department's failure in its responsibility to erect the perimeter scaffolding, I am not able to accept that submission. 221 The Court had tendered to it a letter from the Director-General of the New South Wales Department of Public Works and Services, expressing the Department's genuine regret, that despite its commitment to occupational health and safety in all aspects of its operations in New South Wales, it had failed to meet, in this case, its obligations under the OH&S Act. I take that expression of regret and the restatement of the Department's commitment to occupational health and safety into account as a factor in mitigation. 222 Mr Docking advised that the prior conviction of the State of New South Wales, involving the Public Works Department and the fine of $1500 before the Chief Industrial Magistrate, on the prosecutor's reading of it, suggests the maximum at the time would have been $10,000.00 given it was a 1995 offence. 223 The fact that there is only one previous conviction recorded against the defendant in its emanation as the Public Works Department, and that conviction, on the limited information available, would appear to have been minor, is a matter to be taken into account in mitigation. The construction industry is a notoriously dangerous one. 224 In taking into account whether a plea was entered at an early stage or not, I do not think it should be discounted just because, as in this case, the defendant made an application open to it to the Court as to jurisdiction against what would seem to be a somewhat complicated background. 225 I take the defendant's plea into account in applying a discount of 15% for the utilitarian value of the plea of guilty (see R v Sharma [2002] NSWCCA 142). To the extent that I have accepted the matters raised in mitigation, I discount the penalty that would otherwise be imposed by a further 5%. Orders 1 The Court finds the defendant guilty of a breach of s 16(1) of the Occupational Health and Safety Act 1983 and accordingly enters a conviction against it; 2 Having taken into account a discount of 15% for its plea of guilty and 5% for the subjective matters raised in mitigation, the Court fines the defendant the sum of $119,000. 3 The Court orders a moiety of the penalty to WorkCover; 4 The defendant shall pay the prosecutor's costs in an amount as agreed or, failing agreement, by order of the Court. *********************** 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.