WorkCover Authority of New South Wales (Inspector Chaston) v Vaughan Constructions Pty Ltd [2005] NSWIRComm 254

Industrial Relations Commission of New South Wales

CITATION: WorkCover Authority of New South Wales (Inspector Chaston) v Vaughan Constructions Pty Ltd [2005] NSWIRComm 254

PROSECUTOR WorkCover Authority of New South Wales (Inspector Chaston) PARTIES: DEFENDANT Vaughan Constructions Pty Ltd (ACN 004 334 543)

FILE NUMBER(S): 2962 of 2004

CORAM: Marks J

CATCHWORDS: OH&S Prosecution - s8(2) - guilty plea - no prior convictions - responsibility one of overall supervision - objective seriousness of the offence - general and specific deterrence - substantial effort to comply with obligations - expressions of contrition - penalty imposed - conviction recorded - order as to costs.

LEGISLATION CITED: Occupational Health and Safety Act 2000 s 8(2)

HEARING DATES: 07/21/2005

DATE OF JUDGMENT: 09/07/2005

PROSECUTOR Mr P Skinner of counsel Solicitor: Ms J Healy Phillips Fox on behalf of WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr M Cahill of counsel Solicitor: Mr N G Napper Deacons Lawyers

JUDGMENT:

- 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Marks J Wednesday 7 September 2005

Matter No IRC 2962 of 2004

INSPECTOR MELISSA CHASTON v VAUGHAN CONSTRUCTIONS PTY LIMITED

Prosecution under s.8(2) of the Occupational Health and Safety Act 2000

JUDGMENT [2005] NSWIRComm 254

1 The defendant, Vaughan Constructions Pty Ltd, has pleaded guilty to a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). 2 An agreed statement of facts in the following terms was tendered into evidence: "1. The Prosecutor is an Inspector appointed under Division 1 of Part 5 and empowered under Section 106 of the Occupational Health and Safety Act 2000 to institute these proceedings. 2. The Defendant, Vaughan Constructions Pty Limited (CAN 004 334 543), is and was at all material times a body corporate with its registered office located at 103 Pelham Street, Carlton in the State of Victoria. 3. At all material times: 3.1 the defendant carried on business as an integrated building design and construction project management business; 3.2 the defendant was the construction project manager at the site; 3.3 the defendant was an employer and employed Darren King ( King ) as its site foreman; 3.4 the defendant was engaged in managing the construction of a warehouse facility at the premises; and 3.5 the defendant contracted Royce Roofing Services Pty Limited ( Royce Roofing ) to supply, deliver, erect and install roofing and rainwater goods for a warehouse building under construction on the premises ( warehouse building ). 4. At all material times: 4.1 Royce Roofing carried on business as specialist supplier and installer of roofing and rainwater goods for commercial premises, such as the warehouse under construction at the site; 4.2 Royce Roofing employed or engaged Bryce Paton ( Paton ) as a tradesman roofer, Justin Westall ( Westall ) as a leading hand, Gary Windass ( Windass ) as a tradesman roofer and Jason Elliott ( J Elliott ) as a supervisor; 4.3 Royce Roofing contracted with the Defendant to supply, deliver, erect and install roofing and rain water goods for the warehouse building; and 4.4 Royce Roofing, to enable it to complete its contract with the Defendant, contracted G&P Coupland Cranes Pty Limited ( Coupland Cranes ) to supply a mobile crane and dogman to lift packs of metal roof sheeting ( roofing packs ) from the back of a truck and place the packs onto the roofing structure of the warehouse building. 5. At all material times: 5.1 Coupland Cranes carried on a mobile crane hire and occasional general rigging and structure business; 5.2 Coupland Cranes employed Stephen Moffit ( Moffitt ) as a crane driver and Craig Elliott ( Craig Elliott ) as a dogman at the premises; and 5.3 Coupland Cranes contracted with Royce Roofing to supply a mobile crane, a crane driver and a dogman to relocate packs of metal roof sheeting from the back of a truck onto the roof structure of the warehouse building. 6. At all material times Moffit was a certified crane driver with 16 years experience in crane operations, including 13 years experience in steel erection and 3 years experience in "general hire". 7. At all material times Craig Elliott held a C6 crane driver's certificate and was certified dogman with 41/2 years experience. 8. The premises consisted of a construction site for a warehouse facility, located at a corner block bounded by Larra Street (running in a north easterly direction) and Orchardleigh Street (running in an easterly direction). The warehouse building was approximately 24.5 metres in both length and width, approximately 7.6 metres in height and located at the northern end of the site. At the time of the incident, the construction work on the warehouse building included the erection of a steel structural frame, including roof frame, concrete panel walls, placement of safety roof mesh and part placement of roof insulation material. The wall of the warehouse building ran adjacent to the Larra Street frontage and was set back approximately 3 metres from the Larra Street frontage. The roofing sheets were to laid and fixed along the length of the building parallel to the Lara Street frontage. 9. Overhead electrical power lines ( power lines ) were located on the Council public area on the Larra Street frontage. The aerial power lines were located adjacent to and approximately 50 centimetres from the Larra Street frontage; or approximately 3.5 metres from the western side of the warehouse building. 10. The power lines were rated 11,000 volts on three phases and were energised at the time of the incident. 11. On 24 May 2002 ( day of the incident ), Royce Roofing Services Pty Limited took delivery of six packs of metal roof sheeting supplied by Stramit Building Products. Each pack consisted of 10 metal roof sheets, with each sheet measuring 24 metres x 1 metre ( pack ). 12. G&P Coupland Cranes Pty Limited provided a mobile crane, a crane driver, Moffitt, and a dogman, Craig Elliott, to lift the packs from the back of the truck onto the roof structure of the warehouse building ( lifting process ). 13. Royce Roofing Pty Ltd provided the Defendant with a document entitled " Safe Work Method Statement and Risk Analysis" dated 10 May 2002. 14. Prior to setting up the mobile crane on the morning of the subject incident, Moffitt, the crane driver, carried out a visual inspection of the site to ensure the crane was not within 3 metres of the overhead powerlines. During his visual inspection of the site Moffit noted the presence of the power lines adjacent to the Lara Street frontage of the premises. Moffitt also completed a "Crane Risk Assessment Checklist" supplied by his employer. According to the Checklist, Moffitt identified the presence of the power lines, assessed the risk presented by the power lines as low and noted, as the proposed risk control: "lifting roofing [into] position with tag line connected from other end. (East)" 15. The crane crew did not prepare a job safety analysis required under G&P Coupland Cranes Pty Limited 's documented work procedure for high risk activities. 16. The mobile crane was set up near the centre of the southern wall of the warehouse building. The front of the crane was facing the Larra Street boundary. The crane was lifting each pack from the truck situated on Orchardleigh Street near the corner of Larra Street. The packs were to be lifted upwards from the truck and slewed over the warehouse building where they were placed onto the roof structure of the warehouse building so that they were running parallel to the Lara Street frontage of the premises.