Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Chadwick v Bruce's Brush Painting [2004] NSWIRComm 60 PROSECUTOR Inspector Christopher Chadwick PARTIES : DEFENDANT Bruce's Brush Painting Services Pty Ltd FILE NUMBER: IRC 6455 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety Act - Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 - Construction industry - Fall from roof - Defendant a small business - Offence proven - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 HEARING DATES: 03/15/2004 DATE OF JUDGMENT: 03/19/2004 PROSECUTOR Ms A F Backman of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr C Fegan of counsel Solicitor: Mr C Nikolovski Nikolovski Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Date: Friday 19 March 2004 Matter No IRC 6455 of 2002 INSPECTOR CHRISTOPHER CHADWICK v BRUCE'S BRUSH PAINTING SERVICES PTY LTD Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 60 1 The State Rail Authority decided that the stationmaster's residence at Unanderra in the State required renovation and restoration. Denbur Constructions Pty Ltd ("Denbur") was contracted as the head contractor to undertake the work to restore the residence to its 1888 style, including the external painting of the residence. Denbur contracted Bruce's Brush Painting Services Pty Ltd ("the defendant") to undertake the painting work. Jack Robert Scott was self-employed and sub-contracted to the defendant to paint the roof of the residence. 2 On 18 April 2001, Scott was painting the eastern side of the roof of the residence next to the chimney when he slipped and fell about 5.4 metres from the roof and down a rail embankment to the rail ballast surface. He sustained serious injuries including a broken arm, broken leg and facial injuries. 3 The defendant was prosecuted by Inspector Christopher Chadwick ("the prosecutor") of the WorkCover Authority of New South Wales with an offence under s 16(1) of the Occupational Health and Safety Act 1983. Section 16(1) provides: 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 the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 4 The charge under s 16(1) was that the defendant failed: [T]o ensure that persons not in the defendant's employment, in particular, Jack Robert Scott, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work, contrary to section 16(1) of the Occupational Health and Safety Act 1983. 5 The particulars of the charge alleged that the defendant "failed to provide at the said site a safe system of work for working at height painting the roof of the said residence". The defendant pleaded guilty to the charge. 6 Denbur and Ernest Mitchell, the person alleged by the prosecution in that matter to have been the project manager, were also charged in relation to Mr Scott's fall from the roof. 7 An agreed statement of facts was provided to the Court. It is unnecessary in the circumstances to refer extensively to the agreed statement other than in the following respects: 28. Prior to the incident involving Jack Scott, Denbur did not provide Bruce's Brush Painting with a SWMS [safe work method statement] for the tasks to be conducted on the roof. 29. Behrouz Hashemi ("Hashemi") was the Director of Bruce's Brush Painting at the relevant time and sub-contracted Scott to paint the internal, external walls and the roof. 30. At no time on or prior to 18 April 2001 did Bruce's Brush Painting provide a SWMS to Denbur. 31. On 18 April 2001, Hashemi provided Scott with a harness. Hashemi attempted to give Scott instructions in relation to the harness by providing him with the manufacturer's instructions in its use and requesting Scott to try on the harness. 32. No induction training was provided to Scott. 33. Scott i. was not required to provide a risk assessment for the work he undertook on 18.4.01; ii. was not required to provide a work method statement for the painting and cleaning of the roof; iii. was not provided with a risk assessment; iv. was not provided with a work method statement; v. was not required to undertake any formal induction training prior to commencing the work; vi. was never given an induction training course for the work at the residence; vii. was provided with a harness by Hashemi but no approved anchor system; viii. was not given sufficient instruction or training in how to wear the harness; ix. if he had intended to use the harness he did not know how to attach a safety line to the roof. 34. Neither Denbur, Mitchell [Ernest Mitchell - alleged to be the project manager] nor Bruce's Brush Painting at any time prior to the accident provided any training, instruction or safe procedure (system) to Scott to ensure his safety. Hashemi provided him with a harness without any formal instruction or prior training. There were no rails, scaffolding or trellises to provide some means of protection to persons working on the roof. 8 Evidence for the defendant included: 1. Two affidavits by Behrouz Hashemi, sole director of the defendant. 2. An affidavit of Sima Hashemi, the spouse of Behrouz Hashemi. 3. An affidavit of John Ernest Cains, registered tax agent and accountant. 9 None of the deponents were required for cross-examination. Mr Hashemi deposed that: The defendant is in the business of providing painting services essentially on a domestic or small to medium scale commercial/industrial basis. The defendant has about 4 employees. Until the incident involving Mr Scott on 18 April 2001 the defendant has not had an incident where an employee or contractor has suffered any injuries other than one workers' compensation claim in about 1997 when an employee sprained his ankle. Mr Hashemi purchased a brand new harness before the work was due to commence on the roof. Mr Hashemi said in his affidavit: I visited the site and delivered the harness to Mr Scott. I provided the harness to him and asked him to try it on. I watched him adjust the straps to ensure that it fitted him correctly. I showed him the instructions contained in the box and I spoke to him about his knowledge of harnesses and he said words to the effect: "I have been in the trade for 15 years. I know how to use it". We discussed anchoring points and I then said words to the effect: "You should be able to get to the lower levels of the roof with the ladder and roller. To get onto the roof, use a rope around the chimney and attach the harness to the rope." I then said words to the effect: "Do you have a rope?" He then showed me two ropes which appeared suitable for the work. I then saw him inspect the hooks on the lead of the harness to which he was to attach the rope. At this time and all times up until the incident there was no scaffolding around the edge of the roof or anywhere else on the building. As far as I am aware the carpenter referred to earlier in my affidavit had been working on the roof without a scaffold. In preparing my tender on behalf of the Defendant for the work, I did not quote for provision of scaffolding which I considered the obligation of the principal contractor. I decided to provide a harness to Mr Scott. After the accident Mr Hashemi said he took the following steps: I made arrangements to visit Mr Scott that evening as I was concerned about him. When I visited Mr Scott he was at his home. We spoke about the incident and he said words to the effect: "I put my foot in the wet paint and slipped." I then inquired as to whether he had been wearing the harness and said words to the effect: "Why weren't you wearing the harness?" He said words to the effect: "I didn't need it". It was obvious that Jack was in a great deal of pain and I then drove him back to Wollongong Hospital for any further treatment required. I visited the work-site the following morning and it was obvious that Mr Scott had applied a coat of paint to the roof at the rear of the cottage and I formed the view that Mr Scott had been working on the top half of the roof on the side of the house near the railway line when the incident occurred. The day after the incident occurred scaffold had been put in place by the principal or other contractors. As it appeared that Scott had completed about half the work I had made a progress payment a few days before the incident. Following the incident it was obvious that he was in hardship and I then loaned him the sum of $1,200 to tied him over until his financial situation is rectified. Mr Hashemi said he took steps to avoid a re-occurrence of the accident and to improve the defendant's approach to occupational health and safety: Since this incident I and the Defendant have taken new steps to ensure that there is no repeat of a situation like this. This includes a detailed observation of every work-site at which I make a risk assessment identifying any possible risks or concerns. I then raise these concerns with the principal contractor and ensure that part of any agreement reached with any contractor is that there is full and adequate safety equipment in place whether that is to be provided by the principal contractor or by the Defendant. As a representative of the Defendant and to ensure that the Defendant is meeting its obligations I enrolled in a Workcover Accredited Training Program in Occupational Health and Safety Induction Training for Construction Work completing this on the 22nd of September 2001. I have also arranged for and paid the other employees and sub-contractors to undergo a similar or identical program. My spouse Sima Hashemi is actively involved in the administration of the business and we have regular meetings and discussions regarding various aspects of the business but particularly as to acquitting our workplace safety responsibilities. My wife as part of her University Degree and as a result of this incident has enrolled in an Occupational Health and Safety Law course completing this in the first session of 2002. Following this course and my studies we have had lengthy discussions regarding risk assessment, work safe management programs and have developed a systematic approach to identifying and managing the risks. I have realised that greater attention and resources need to be devoted to ensuring that there is hazard identification and risk assessment and to ensure the due diligence of the employees in carrying out any work. Generally I believe that we have since this incident with the various studies taken a pro-active approach to health and safety. Since the incident we have adopted a new procedure. For example the Defendant recently took on a larger job at the Kiama High School ultimately under commission to Public Works. A part of this assessment includes the induction process and acceptance by the workers of their obligations and requirements. To further ensure that the Defendant is meeting its obligations we are in the process of retaining a consultant to ensure that safe systems of work are in place and are well able to ensure that we have managed health and safety issues as required. We also propose a constant review of all safety procedures. Mr Hashemi registered concern at the prospect of a large fine and the effect that might have on the defendant: Although the business has recorded some growth the competitive environment of the construction industry has resulted in the Defendant being unable to competitively quote at a rate which is attractive in a large number of jobs. I have also rejected some jobs where safety has been a concern. As a consequence as a Director I am concerned at the Defendant's abilities to continue to trade in the long term bearing in mind the imposition of what I am concerned will be a large fine in relation to this prosecution. 10 In his second affidavit Mr Hashemi said that on 3 March 2004 he had a meeting with Ms Catherine Wade, consultant from The Brief Group Pty Ltd in which a review was made of the Defendant's occupational health and safety systems. Mr Hashemi deposed that: Generally Ms Wade was satisfied with the systems in place and my familiarity with my OH&S obligations. Her primary recommendation was that minutes are taken of all "toolbox talks" I have with the workers. I have already taken steps to implement her recommendations. 11 In her affidavit Mrs Hashemi said that as a direct result of the accident involving Mr Scott she enrolled in an elective known as "Occupational Health and Safety Law" as part of her university degree. She completed this course in the first session of 2002 with a credit grade. Mrs Hashemi said she has identified the need to ensure a pro-active and systematic approach to risk management and that: As a result of undertaking these studies along with the Director's studies we have regular meetings with the Director and discuss the requirements in respect of safe work systems, risk assessments, work method statements and the need to ensure that there is a full induction process and that all employees and sub-contractors are briefed. As a result of our respective studies we discuss on a regular basis health and safety issues and do not commence any work until all foreseeable safety procedures are in place. We also discuss and have put in place an induction process where we discuss and encourage all employees and other workers to inform the Director of any other safety concerns and equipment that may be necessary before or during operation. 12 Mr Cains' affidavit went to taxation and other financial records of the defendant. Mr Cains said that over the last three years the defendant has recorded a steady growth in the level of profitability but that he was concerned that a large fine would "dramatically impact upon the financial stability of the corporate venture and may compromise the Director's position and significantly compromise the viability of the business in general." 13 The defendant's total income for the year to date to 29 February 2004 was $284,828.28, the net profit was $16,100.95 and the net assets were $110,980.37. Submissions of the prosecutor 14 Ms A F Backman of counsel appeared for the prosecutor. Ms Backman addressed the principles and relevant case law relating to sentencing under the Occupational Health and Safety Act. In relation to the offence which is the subject of these proceedings Ms Backman submitted: · Any penalty should have regard to the need for general and specific deterrence. · The risk of injury was both obvious and foreseeable. No safe work method statement for work specific to painting the roof was ever generated by anyone at any time on or prior to the day of the accident. Mr Scott was simply handed a harness by the defendant but without the means of anchoring it securely while on the roof. Where there is a risk to safety that was both reasonably foreseeable and obvious this adds to the overall seriousness of the offence. · 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. With respect to the availability of simple and straightforward steps to remedy defects as a factor going to the objective seriousness of the offence, it was open to the defendant at any time prior to the accident when providing the harness to Mr Scott to ensure he had an appropriate and safe anchoring system. The defendant could also have made enquiries as to the availability of scaffolding. The day after the accident scaffolding was in fact erected at the site. · The gravity or otherwise of the potential risk to safety flowing from a breach of the OHS Act is relevant as a measure of the gravity of the breach and the culpability of a defendant. · The Act requires a pro-active approach on the part of an employer to safety particularly in an industry which may be very dangerous or perhaps even inherently unsafe. The terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk of safety has arisen and requires remedy. Section 15 limits considerably the ability to rely upon previous experience as to either liability or culpability. The obligation under s 15 means it is essential that an employer should be proactive and not reactive; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare. · The defendant has no prior convictions. · The defendant is entitled to have taken into account, as mitigating the objective seriousness of the offences, its plea of guilty. In the present circumstances, the defendant has pleaded guilty at the first reasonable opportunity. · The defendant was willing to attend a conference with the prosecutor's legal representatives and give evidence against a co-defendant, Ernest Alfred Mitchell. · The prosecution applies for its costs and moiety. Submissions of the defendant 15 Mr C Fegan of counsel appeared for the defendant. In summary, Mr Fegan submitted: · The Defendant concedes that the matter under consideration is of a serious nature. · Mr Hashemi as the sole director feels sorrow and remorseful about the incident and the injuries suffered by Mr Scott. · The assessment of the nature and gravity of an offence may be evidenced by the measures introduced by the Defendant to safeguard persons from risks after the material event has occurred as referred to in the affidavits of Mr and Mrs Hashemi. · Insofar as subjective considerations are concerned the Defendant submits that the Court should take into account the following: (a) The personal circumstances of the sole director Mr Hashemi including that: (i) since arriving in Australia from Iran in 1988 Mr Hashemi has been in full-time employment and later established a painting business as a sole trader developing into a company which has operated successfully since 1995 employing or contacting various numbers of people during that period. (ii) At the time of the incident Mr Hashemi immediately made contact and visited Mr Scott. (iii) Due to the financial hardship of Mr Scott, Mr Hashemi advanced him monies to assist him which he has not sought repayment. He had indicated to Mr Scott that upon his recovery he could offer him work, although Mr Scott has made no advance to him at this time. (iv) With the competitive nature of the building industry the Defendant has experienced some difficulties with cash flow requiring an injection of substantial capital by the director in the vicinity of $45,500.00 by way of a loan. The Director has done this as he does not wish to ruin the good reputation of the Defendant nor compromise his Director's duties. (b) The plea of guilty was entered at the earliest opportunity after receiving the Workcover brief and after the Defendant had an opportunity to obtain legal advice. (c) Co-operation with Workcover. Following the incident Mr Hashemi actively co-operated and participated in the investigation and was open and frank in his re-count. (d) After the accident the Defendant has through their Director and his spouse undergone further training obtaining accreditation in Occupational Health and Safety, implemented a range of new systems including but not limited to thorough workplace and risk assessments, safe work method statements, induction and other formal training of employees as to safe work practice, regular meetings regarding safe work practice and risk identification. To ensure that the Defendant is meeting all its obligations it had arranged for a consultant to inspect a current worksite and review the various documentation and practices in place which were found to be in order and were advised that it was meeting all its obligations. A recommendation for minutes to be kept of "tool-box talks" has been implemented. These steps taken have been done so to prevent a recurrence of an accident of this type. (e) The Defendant has no prior convictions. The Defendant's record (or lack thereof) is to be viewed against knowledge of the fact that the Defendant and previously its Director, has been performing work in the construction and building industry (which, it is submitted, is an industry of some risk) since about 1990/1991. (f) Remorse/contrition. It is appropriate for the Court to have regard to the remorse and contrition expressed by the Director of the Defendant as demonstrated in his actions following the accident and his willingness to offer Mr Scott work. Mr Hashemi as Director is a person of standing in his local and Baha'i communities. Mr Hashemi has taken strength from his faith and beliefs to maintain a positive outlook although his remorse and regret as to the accident has had an impact on him personally. (g) Financial capacity of the Defendant. In assessing penalty it is appropriate for the court to take into consideration the financial capacity of the Defendant. The Defendant has experienced a difficulty with securing work in an extremely competitive industry and has been required to seek a loan of $45,500.00, essentially from the Director, to assist with its current cash flow problems. The Defendant's accountant has provided interim figures where the current profit and loss statement (as at 29 February 2004) demonstrates a profit of approximately $16,500.00. The accountant has expressed concern about the impact a large fine would have upon the financial stability of the Defendant and how it may compromise the Director's position. Although Mr Hashemi has supported the business with a loan he is a person of limited means who has other personal commitments. The financial circumstances of the Defendant has been exacerbated by the difficulties with payment by creditors and the competitive nature of the industry which has precluded the Defendant from securing certain work. Alongside this is the Director's conscious effort to avoid work where a risk assessment or a risk evaluation has deemed the work itself unsuitable. (h) The actions of others. Whilst other entities were working on the material site and failed in their obligations to the Defendant the Defendant in no way seeks to avoid or deny its inherent corporate culpability. Consideration 16 The primary consideration in sentencing proceedings for an offence under the Occupational Health and Safety Act is the objective seriousness of the offence. In that respect there are a number of factors to be considered, these being: (a) The maximum penalty for the offence as prescribed by Parliament. (b) The nature and quality of the offence and whether it involved obvious and foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety; (c) The need for general deterrence; (d) The need for specific deterrence. 17 The maximum penalty in this case is $550,000, thereby indicating that the community, through the Parliament, considers that offences under the Occupational Health and Safety Act are serious offences deserving of heavy penalty depending on the Court's assessment of the gravity of the offence. 18 The nature and quality of the offence in this case may be assessed having regard to a number of relevant facts. Firstly, the defendant did not issue adequate instructions or provide any appropriate training to Mr Scott in relation to the safety requirements for working on a roof, it did not assess and identify any risks to safety arising from the work of painting the roof and the defendant did not take any steps to satisfy itself that Mr Scott would, and did, go about the work of painting the roof in a safe manner. The defendant did, however, provide Mr Scott with a safety harness and it did elicit from Mr Scott that he knew how to use the harness. This must have the effect of reducing the objective seriousness of the offence, although in providing the harness the defendant did not do what was necessary to satisfy itself that in fact Mr Scott knew how to use the harness and it did not ensure that Mr Scott used the harness. Moreover, whilst anchoring points for the harness were discussed between the defendant and Mr Scott, a less than satisfactory method was arrived at to anchor the harness and that was to place a rope around the chimney (which presumably required Mr Scott to climb up on the roof without proper fall protection in any event) and to attach the harness to the rope. In the result, Mr Scott foolishly did not use even the limited fall protection provided and fell off the roof. 19 In the absence of providing a safe system of work, including proper fall protection that was used by Mr Scott, a serious and obvious risk to safety arose that was easily preventable. Mr Scott should not have been allowed on the roof without adequate training, instruction, supervision and fall protection. 20 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case Mr Scott suffered fractures and facial injuries after falling some 5.4 metres. The consequences of falling from such a height could have been worse. 21 One of the objectives of punishment is to deter others from committing the same crime. General deterrence is a matter that should be taken into account in determining the appropriate penalty to be imposed. In particular, a Full Bench of the Commission in Court Session has recognised that in the industrial context, it will be rare that a sentencing court need not impose a sentence that includes an element of general deterrence: See Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71]. Falls in the construction and related industries are distressingly common and result in serious injury and, in some cases, death. There is a strong case here for any penalty to reflect the need for general deterrence. 22 A penalty may reflect the need to specifically deter the offender from committing further crimes. In this case it is apparent that the defendant is now well aware of its shortcomings in relation to occupational health and safety and has taken what I regard as appropriate steps to avoid committing any further offences. I consider that the sole director of the defendant and his spouse are of good character and the need to include in the penalty an element for specific deterrence is relatively slight. 23 As to the relevant subjective factors, the defendant entered a guilty plea at an early opportunity and is entitled to a discount on penalty in recognition of the utilitarian value of the plea. The defendant cooperated with WorkCover in the investigation of the accident and has expressed what I consider to be genuine remorse, reflected in the fact that it provided assistance to Mr Scott following the accident. The defendant has taken steps to put into place occupational health and safety policies and practices that are appropriate for the nature of its business and the director of the defendant now has an acute awareness of the need for safe work practices. The defendant has no prior convictions. 24 As to the question of financial capacity, the defendant is a small enterprise and the burden of any fine will fall on Mr Hashemi and his family. I have taken this into account in fixing penalty. 25 I consider an appropriate penalty in this case to be $78,000. This amount is to be discounted by 25 per cent for the utilitarian value of the guilty plea and a further 10 per cent for the other subjective factors, resulting in a penalty of $50,700. Orders 23 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $50,700 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. _______________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.