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. 17. It was not possible, on this site, to position the crane in such a way that the driver could see the progress of the load beyond the wall of the warehouse building. 18. Further, the dogman, Craig Elliott, was unable to see the proximity of the load to the power lines as he was on the opposite side of the crane to the load. 19. Justin Westall was assisting in the lifting and landing of the packs onto roof structure of the building. The crane driver relied upon Westall to assist with manoeuvring and "spotting" the crane loads. 20. The dogman used hand signals and a whistle to control the lifts. 21. A tag line was attached to one end of each pack so that the dogman could control the load as it was being lifted into position over the roof structure. When the load reached the side of the building, the tag line was to be handed to one of the workers on the roof to control the load as it was being landed on the roof. 22. Coupland Cranes did not provide a "spotter" to be located on the roof to assist with the lifts. Nor were any of the roofing workers nominated to act as "spotter" with respect to the power lines while the packs were being lifted into position over and landed onto the roof structure. 23. King was aware of the power lines. King did not take any specific steps with respect to the power lines because the powerlines were located approximately 3.5 metres from the building under construction. 24. Between approximately 8.00am and 8.30am, Paton was on the roof of the warehouse building with Westall, Windass and J Elliott unloading packs and laying the roof sheets onto the roof structure. The first three packs were lifted into position and landed on the roof structure without incident, the available inference being that they did not pass within the safe working distances of the powerlines. 25. King, the Defendant's site supervisor observed a couple of the initial lifts and, when interviewed, stated that he had no safety concerns about the handling of the lifts . 26. The Crane Driver states that, after the fourth pack of roofing sheets was being positioned over the roof structure, he saw Westall give a hand signal "to hook down the load and he then began to lower the load onto the roof structure. 27. Westall asked Paton to help him land that pack on the roof. Paton grabbed the pack whilst it was in mid air, over the roof, in order to guide it onto the roof. After grabbing the fourth pack whilst it was in mid air, he received an electric shock. Paton fell forward onto safety mesh and went into convulsions. 28. The pack became energised after contacting or passing near the overhead electrical conductors (the energised phases) located on the Larra Street frontage of the premises, either through direct contact with the load or through arcing. 29. After the incident, Jason Elliott saw that the roof pack which Paton had grabbed was in contact with the power lines adjacent to the Lara Street frontage of the site. 30. Subsequently, Paton was taken from the roof and sent by ambulance to Westmead hospital for treatment of electrical burns. Paton returned to work on light duties 14 weeks after the incident. As at 10 September 2002, Paton was attending therapists due to difficulties with walking and with the range of movement in his right hand.. 31. At approximately 10.45am on 27 May 2002, Inspector Jim Allison of the WorkCover Authority of New South Wales, visited the site and observed the following: 31.1 A fenced construction site and a sign with red and black writing including the lettering 'Vaughan Constructions' mounted on that fence. 31.2 A number of overhead powerlines, above the Larra Street footpath adjacent to the site, and located approximately 3.5 metres from and parallel to the wall of a large partially completed building with concrete walls and a metal roof that was under construction on that site. 31.3 A site office and other demountable buildings. 31.4 A red and yellow mobile crane with yellow lettering on the boom 'Coupland Cranes' on the southern side of the concrete building, adjacent to the Larra Street side of the large opening into the wall of that building. 31.5 The approximate position where, according to Stephen Moffitt and Craig Elliott, the front of a truck delivering roofing materials was parked on 24 May 2002, being a point approximately 23 metres from the intersection of Orchardleigh Street and Lara Street 31.6 The steel roof beam running approximately south to north through the building which supported metal roof joints, wire mesh and gold coloured insulation material. The wire mesh and gold coloured insulation material were bent out of shape on one area of the roof. 31.7 The approximate location of Paton on the roof at the time of the incident on 24 May 2002, being a point 12 metres into the entrance of the building and 7.7 metres from the wall parallel to Larra Street. [Inspector Allison recorded these measurements on page 0025 of notebook A 4358.] 32. Inspector Allison also ascertained that the average height of the warehouse roof area where Bryce Paton was working at the time of the incident on 24 May 2002 was approximately 7.3 metres. 33. It was Paton's first day working at the site and he had not received site induction training from the Defendant. 34. The Australian Standard for Cranes AS 2551.0 1993 as it was at the date of the incident required that the load and carne not approach any closer than 2 metres within distribution lines on a power pole. The recommendation of the relevant energy supplier, Integral Energy, at the time of the incident was that the load and crane should not approach any closer than 3 metres within distribution lines on a power pole. 35. The roofers, including Paton, were not provided with any training or instruction about safe methods of working with cranes or near aerial power lines. These matters were not included in induction training provided by the Defendant. 36. G&P Coupland Cranes Pty Limited did not comply with the Australian Standard for Cranes AS 2551.0 - 1993, whereby a crane operator and other persons working with cranes near aerial power lines must not allow any person, other than the crane operator, to be in contact with any part of the crane or the load except with a non-conducting tagline, once the lift has been commenced. 37. Following the incident David Selkirk and Peter Cole of Integral Energy conducted an investigation into the subject incident. Selkirk and Cole concluded that: "….the victim was maneuvring (sic) the load on the roof frame when the end of the roofing sheets either made contact with or was close enough to the overhead 11kV mains for a flash over to occur." Selkirk and Cole recommended that the following steps should have been taken to avoid the occurrence of the subject incident: "Advise all personnel on site – including visitors of the presence of overhead mains and the need to keep at least three metres clearance. Place warning signs on roof of building and fencing." 38. Further, 38.1 The Defendant recommended action be taken to ensure that a person held onto the tagline during the lifting process and to maintain appropriate distance from power lines. The Defendant also reviewed the work method statement for Royce Roofing Services Pty Limited and upgraded its Occupational Health and Safety Management Plan to include procedures involving working near overhead power lines. 38.2 Royce Roofing Services Pty Limited amended its work method statement to include overhead power lines. 38.3 G&P Coupland Cranes Pty Limited revised its safety policy and implemented an occupational health and safety management tool. 38.4 A spotter was used on the occasion of a further lift of materials at the premises. 39. As a result of the Defendant's breach, Bryce Paton sustained "serious personal injury"." 3 The defendant pleaded guilty to having breached s 8(2) in that it: "1.1 Failed to provide or maintain systems of work that were safe and without risks to health to prevent non-employees from receiving electric shocks while working with cranes at heights at the premises in the vicinity of aerial power lines; 1.2 Failed to ensure that crane loads being lifted at the premises did not approach within an unsafe distance of aerial power lines; ... 1.4 Failed to provide such information, instruction, training and supervision as may be necessary to ensure the safety of non-employees at the premises; As a result of the Defendant's breach, Bryce Paton sustained serious personal injury". 4 There was also tendered into evidence on behalf of the Prosecution a number of photographs, the Inspector's statement, an extract from 'Australian Standard 2550.1' dealing with cranes, and the site plan of the construction site where the accident occurred. 5 A number of documents were tendered on behalf of the defendant and additional information was furnished concerning the defendant's activities. 6 The defendant entered a plea of guilty at the earliest opportunity. It has no prior convictions for any offence under the Act or under comparable Victorian legislation. The defendant has traded in New South Wales for about 10 years and in Victoria for about 50 years. The defendant has substantial operations, both in Victoria and New South Wales, and employs and engages as contractors a large number of persons. 7 The defendant has had in place for some time a comprehensive ccupational health and safety programme and is committed to complying with its legislative and other obligations in this area. It has engaged external consultants to audit the implementation of this programme. The programme has been reduced to writing and is extensive in its operation. There is evidence that, in general terms, it compels compliance with its occupational health and safety policy and procedures. 8 The agreed statement of facts does not make it clear that the roofing material which was being lifted by the crane when the incident occurred, was 24 metres long. Accordingly, there was always the risk that the roofing material might touch or be placed near the overhead powerlines, allowing either for direct conduction of electricity or arcing to occur. However, as was submitted on behalf of the defendants, if the roofing contractor personnel had used the non-conductive tag-line for the purpose of ensuring that the load did not come into close contact with the powerlines, the incident would not have occurred. 9 The maximum penalty applicable to the defendant is $550,000. The starting point for the assessment of the appropriate penalty in these proceedings is the objective seriousness of the offence. Three organisations were involved in the particular procedure which was being undertaken at the time that the incident occurred. The crane driver and dogmen were experienced persons and obviously were in overall charge of the lifting operation. The crane driver and dogmen both had specific responsibility to ensure the safety of the operation. It was the employees of the roofing contractor who were principally at risk and, indeed, the person injured was one of its employees. The roofing contractor, as an employer, had a clear responsibility to ensure that the operation was carried out safely. 10 The defendant's responsibility was one of overall supervision of the safety of all operations on the site. The defendant was aware of its obligations, and its management plan provided for the identification of a "no-go zone" by reference to the overhead powerlines, the identification of a "spotter zone" and the appointment of a person to act as a spotter, whose sole duty would be to observe the procedures being undertaken. The defendant has entered a plea of guilty because it acknowledges that its supervision on site that day failed in this regard. 11 However, I agree with the submissions made on behalf of the defendant that its failure must be seen in the light of the overall operation, having regard to the supposed proficiency of the crane company's personnel and that of the roofing contractors. 12 Accordingly, overall, I would assess the culpability of this defendant as being less than that of the crane company and also the roofing company. 13 There is reference in paragraph [33] of the agreed statement of facts to the failure of the defendant to train the injured worker, Mr Paton, by way of a site induction. However, it was common ground between the parties that the defendant's supervisor had only become aware that the injured worker was on site after the incident had occurred. 14 Overall, I would assess the breach by the defendant objectively as being a serious one, but of a lesser and lower order than that applying to the roofing company and the crane company. Prima facie this would call for a penalty at the lower end of the appropriate range. 15 In assessing penalty I will take into account the general deterrent nature of any penalty imposed, having regard especially to the fact that the incident occurred within the building industry, as well as the specific deterrent on this defendant. However, in stating this, I have regard to the fact that, in general terms, this defendant has established during the course of the proceedings that it has a particular commitment to ensuring occupational health and safety on all of its worksites. Furthermore, there is evidence that it has reinforced its commitment after the incident which gave rise to these proceedings. It carried out a review of its occupational health and safety processes, and reinforced the need to ensure adequate supervision of any task being performed of a similar kind to that which gave rise to this incident. The defendant has now adopted a practice of employing a dedicated occupational health and safety supervisor at each of its sites who must be appropriately qualified. This step has been taken at some cost to the defendant. 16 Compared with many defendants, this defendant may be assessed as being "a good corporate citizen" in terms of its commitment to its obligations under the occupational health and safety legislation. Whilst the deterrent effect of any penalty plays an integral part of sentencing principles, in my opinion it would be unjust to overly penalise this particular defendant by reference to any specific deterrence. To do so would, in my opinion, send an inappropriate message to defendants. Those defendants who generally make a substantial effort to comply with their obligations should be seen to be rewarded for that effort, rather than unduly punished. Whilst I will still have regard to the deterrent effect on this defendant, it my opinion it is not necessary that it be overly emphasised in terms of an overall penalty. 17 I have already canvassed a number of subjective factors which would, in the aggregate, mitigate against an overly excessive penalty. The defendant has pleaded guilty at the earliest possible opportunity. It was agreed between the parties that it cooperated with the WorkCover Authority in connection with its investigations. It has a substantial commitment to occupational health and safety matters and has taken steps to improve its procedures following the incident. 18 The joint managing director and other senior personnel of the defendant company were present in court, and the company has expressed contrition for what has occurred. 19 The Prosecutor sought orders for costs and a moiety of the penalty, which were not opposed. 20 Having regard to all of the matters to which I have referred, I am of the opinion that an appropriate penalty is the sum of $45,000. 21 I make the following orders: 1. The defendant is convicted and found guilty of the offence in the charge. 2. The defendant is fined the sum of $45,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor in an amount assessed by the court in default of agreement. 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