Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Swadling v The Sydney Festival Ltd [2003] NSWIRComm 285 PROSECUTOR PARTIES : Inspector Stephen Swadling DEFENDANT The Sydney Festival Ltd FILE NUMBER: IRC 7302 of 2002 CORAM: Marks J Occupational Health & Safety Act Plea of guilty CATCHWORDS : Defendant required employee to perform work for third party organisation Employee suffered fatal injuries while working for third party Held defendant failed to properly comply with its responsibilities under the Act LEGISLATION CITED : Occupational Health & Safety Act 1983 s 15(1) Occupational Health & Safety Act 2000 Schedule CASES CITED : Drake Personnel v WorkCover Authority of NSW (1999) 90 IR 432 Inspector Swadling v Empire Talkies Pty Ltd 30 June 2003 (2003) NSWIRComm 191 HEARING DATES: 08/21/2003 DATE OF JUDGMENT: 09/11/2003 PROSECUTOR Mr D W M Chin of counsel SOLICITORS Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT SOLICITORS Ms S Doherty Ebsworth & Ebsworth JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Thursday 11 September 2003 Matter Number IRC 7302 of 2002 INSPECTOR STEPHEN SWADLING v THE SYDNEY FESTIVAL LTD Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 by operation of Schedule 3 of the Occupational Health and Safety Act 2000 JUDGMENT 1 The defendant The Sydney Festival Ltd has pleaded guilty to a charge brought against it by the prosecutor Inspector Stephen Swadling of the WorkCover Authority of New South Wales alleging a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act"). This judgment is concerned solely with the question of penalty. 2 An agreed statement of facts was tendered into evidence which contains within it details and particulars of the charge brought against the defendant. That document was in the following terms: 1. At all material times the Prosecutor was an Inspector appointed under Division 1 of Part 5 and empowered by Section 106 of the Occupational Health and Safety Act 2000 to institute proceedings in this matter (or, in the alternative, was an Inspector appointed under Division 4 of Part 3 and empowered by section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter). 2. The Prosecutor has conducted investigations into the circumstances surrounding an accident which occurred on 3 January 2001 at Her Majesty's Theatre at 107 Quay Street, Haymarket in the State of New South Wales (premises) and from those investigations he is able to state the following either from his own knowledge or upon information and belief. 3. The Sydney Festival Limited (ACN 070 285 344) (Defendant) is a corporation with its registered office situated at Level 2, 18 Hickson Road Sydney 2000 in the State of New South Wales. 4. At all material times the Defendant: 4.1 was events organiser for The Sydney Festival; and 4.2 employed Geoffrey Keith Richards as a mechanist at the premises. 5. At all material times, the premises were owned and operated by Empire Talkies Pty Ltd (Empire Talkies). On 3 January 2001. the main stage at the premises was in the process of being set up (bump-in) for a Canadian production being performed as part of the Sydney Festival in 2001. 6. At all material times, Peter Anderson was employed by Empire Talkies as Head Mechanist at the premises. Mr Anderson had worked casually at the premises from 1976 to 1983 and from about early September 1983 he had held the position of Head Mechanist. Mr Anderson was responsible for the selection and supervision of backstage staff and selected Mr Richards as casual mechanist for the bump-in of the Canadian production. Mr Richards' duties on the bump-in included setting up mechanical operations on the stage including props, scenery and curtains. Since about 1985, Mr Richards had worked at the premises on a casual basis as a mechanist and also as a flyman to "fly" props during productions. 7. On 3 January Mr Richards was killed as a result of a head injury sustained while working at the premises. The Premises and the flying prop system 8. It is agreed that at the premises: 8.1 there was an auditorium area approximately 13.7 deep and 22.8cm wide filled with rows of seating; 8.2 At the southwestern end of the auditorium there was a stage approximately 12.9m deep, 28.9m wide and 21 m high raised approximately 1 m above the auditorium. (Photo No 1); 8.3 In the western wall of the stage there was a counterweighted flying prop system (Flying Prop System) to control the movement of props, scenery and curtains during the performance. (Photos No2 and 3 and Police photos No 1, 2 and 3); 8.4 The Flying Prop System consisted of 83 sets of vertical lines at 150 mm intervals; 8 .5 each set of ropelines was attached to a metal counterweight cradle. The counterweight cradle had a rectangular metal section at the top and bottom approximately 75mm deep and 50mm wide. There were two 20mm round bars welded into grooves on both sides of the metal sections; 8.6 Three flexible steel wire cables were attached to the top of the counterweight cradle. The wire cables ran up and over sheaves and down to the battens. A sisal rope also ran up and over the sheaves, then down to the stage level and then back up to the bottom of the counterweight cradle. The counterweight cradle moved up and down on guides attached to the theatre walls; 8.7 In order to "balance" a prop and the batten it was attached to, weights equal to the combined weight of the prop and batten were placed in the metal counterweight cradle attached to the ropeline being "balanced". The weights were placed on top of each other in the counterweight cradle with the grooves of each weight fitting around the cradle rods on each end of the of the counterweight cradle. The weights were not attached together apart from their own weight. 8.8 The weights were approximately 340mm long and 100mm wide. The depth of each weight varied according to the mass of the weigh. The 50lb weight was 100mm deep. Each end of the weight there was a groove approximately 22mm wide and 25mm deep. Each weight had been designed to sit in the counterweight cradle, stacked on top of each other. (Photos 4, 16, 17 and Police Photos 6 and 7); 8.9 Once the props were "balanced", they could be moved up and down from the stage level by pulling the sisal ropes. The front of the rope (nearest the stage) pulled the scenery down and the back of the rope pulled the scenery up. As the counterweight cradle went up, the batten came down and vice versa. (Photos No 6, 12, 13, 14, 15 and Police Photos No 15, 16, 7, 18); 8.10 There was a wooden kick rail approximately 200mm high at stage level. There was damage to this kick rail adjacent to line No 55; 8.11 Approximately 9.3m above the western side of the stage and accessed by a stairway was the Fly Gallery. The Fly Gallery had a solid wooden floor and was approximately 12.9m deep and 5m wide. On both sides of the Fly Gallery were metal handrails approximately 910mm high. These handrails consisted of a 130mm toe board located above the floor, a mid-rail located 460mm above the toe board and a top rail located 320mm above the mid-rail. (Photos 4, 5, 9 and 10 and Police Photo 11); 8.12 On the Fly Gallery there were a number of steel weights of various depths stacked in rows. There were 2 rows of weights stacked 3 weights high running along the length of the Fly Gallery; 8.13 At ropeline 55, the front sisal rope was located 200mm from the edge of the handrail and the rear sisal rope was located 390mm from the handrail. (Photos 9 and 10); 8.14 There was a clear walkway of approximately 700mm between the handrail and the stacked weights. The handrails, ropes and counterweight cradles all appeared in good condition; 8.15 Located approximately 9.6m above the Fly Gallery and accessed by a step-type ladder was the Loading Gallery. The Loading Gallery had a metal floor and was approximately 12.9m deep and 1m wide. On both sides of the Loading Gallery were metal handrails approximately 910mm high. There was a 130mm toe board located above the floor, a midrail located 460mm above the toe board and a top rail located at 320mm above midrail. (Photo 11); 8.16 Located approximately 2.4m above the Loading Gallery, accessed by a step-type ladder was The Grid. The Grid had a metal channel floor and was approximately 12.9m deep and 28.9m wide. It was protected on all sides by the brick walls of the building. The Grid level was at the level of the sheaves. The accident 9. On 3 January 2001, just prior to Mr Richard's death, Mr Richards and Mr Anderson were on the stage "balancing" a theatre curtain on ropeline 55. The batten from which the curtain was suspended had already been balanced with approximately 75kg of weight. Approximately 50kg of additional weight was required to balance the additional weight of the curtain. Mr Anderson and Mr Richards moved the counterweight cradle up to the Fly Gallery. Mr Anderson twisted together the front and back line of the sisal rope of the line ropeline 55 (underneath counterweight cradle 55) as a braking method and held the ropes out at arms length while Mr Richards went to the Fly Gallery to add the extra weight. The method of twisting the 2 ropes together was to use friction to hold or anchor the cradle from travelling up or down. 10. Mr Anderson heard Mr Richards call "look out". Upon hearing this warning Mr Anderson released the 2 ropes he was holding. Mr Anderson moved clear of the stage. There was a brief period of loud metallic noises. 11. Counterweight cradle 55 ascended coming to a stop at the sheaves. 12. The scenery bar of ropeline 55 descended. 13. Ropeline 56 also moved. 14. Mr Richards was found dead lying face down on the Fly Gallery in a pool of blood bleeding heavily from a head wound. Prosecutor's findings 15. As a result of the Prosecutor's observations and investigations he found: 15.1 Mr Richards was attempting to load weights into a weight cradle on the Fly Gallery and was working alone at the time; 15.2 other persons heard Mr Richards yell, 'Look out!' as a warning to those below him on the stage level; 15.3 Mr Anderson, who was holding the twisted ropes, let go of the ropes and he and other persons working on the stage cleared the stage immediately; 15.4 this left the Flying Prop System controlling ropes of line 55 unattended; 15.5 neither Empire Talkies nor the Sydney Festival had a documented procedure for securing the cradle whilst weights were being added. Dr Samson's report 15.6 Mr Richards called out "look out" to warn other workers below him because he had dropped a 56lb (25 kg) weight; 15.7 upon hearing this warning Mr Anderson released the ropes of ropeline 55. The ropes of ropeline 55 moved and as the counterweight cradle (being lighter than the combined weight of the batten and curtain) shot upwards, the batten and curtain descended; 15.8 when the counterweight cradle 55 hit the sheave cluster at the Grid level the impact caused the remaining 2 56 lb (25 kg) weights in the cradle to spill out vertically upwards; 15.9 as Mr Richards looked over the railing to the stage to see where the dropped weight hit, he was hit in the head by one of both of the falling weights; 15.10 Mr Richards also sustained rope burns to his hands which suggested he had tried to hold the ropes or ropelines 55 and/or 56 as they were moving. 16. It is alleged that on 3 January 2001 the Defendant breached section 15(1) of the Occupational Health and Safety Act 1983, in that it failed to ensure the health, safety and welfare of its employees at work, in particular, Geoffrey Keith Richards. Particulars of the Defendant's breach are that it: 16.1 failed to ensure a safe system of work for the movement and setting of scenery, curtains and theatre props by way of a batten/counterweight flying system (Flying Prop System) at the premises. 16.2 failed to ensure that there were adequate safety measures adopted for the movement and setting of the Flying Prop System including, but not limited to: 16.2.1 mechanical rope locks; 16.2.2 counterweight restraining security device attached to cradle; 16.2.3 withdrawn 16.2.4 requirement of persons setting props to wear hard hats. 16.3 failed to ensure the implementation of adequate periodic risk assessments in relation the operation of the Flying Prop System; 16.4 failed to ensure that employees performing work involving the operation of the Flying Prop System were wearing appropriate personal protective equipment; 16.5 failed to ensure that employees performing work involving the operation of the Flying Prop System were provided adequate safety measures as set out in sub paragraph 21.2; 16.6 failed to provide an adequate protocol for the safe operation of the Flying Prop System including safety measures for working at heights and the wearing f appropriate personal protective equipment; 16.7 failed to undertake any or any adequate risk assessment of the hazards involved in the operation of the Flying Prop System. 3 There was tendered into evidence additional documentation concerning the circumstances surrounding the incident which led to the death of Mr Richards. That material was also tendered into evidence in connection with the prosecution of Empire Talkies Pty Ltd arising out of the same incident. I gave judgment in connection with that prosecution on 30 June 2003 (2003) NSWIRComm 191 and that additional documentation is referred to in that judgment. It is not necessary for the purposes of these proceedings that I repeat it. 4 There was tendered into evidence on behalf of the defendant inter alia an affidavit of John Frances Bayle, the head of production for the defendant who joined that company in February 2001, as well as an affidavit of Gerard Patrick Cahill the financial controller of the defendant since 11 February 2002. 5 Mr Bayle has worked in the theatre industry for 20 years. At the time of the incident giving rise to these proceedings the defendant did not have a defined protocol for risk assessment nor a clear occupational health and safety policy. Mr Bayle said: "shows were assessed informally on a case by case basis and identified risks deemed to be unacceptable were reduced." Despite this, efforts were made with respect to particular productions which were part of the annual Sydney Festival to assess them and to ensure that they were safe. In connection with the incident at Her Majesty's Theatre giving rise to these proceedings the production itself had been assessed as a low risk production from the point of view of health and safety risks and there was no formal risk assessment undertaken of Her Majesty's Theatre because it was a well-known professionally operated venue and Mr Peter Anderson the head mechanist was well-known and well-respected in the theatre industry. In fact, it was Mr Anderson who selected the persons who were to be used in connection with that production at the theatre, although they were to become employees of the defendant. The day-to-day control and management of those staff was undertaken by Empire Talkies, and Mr Anderson in fact assumed overall control of all backstage staff including the deceased, Mr Richards. 6 Since assuming his position, Mr Bayle has established a formal assessment and risk management protocol for employees, venues and crowd management at venues utilised for the purposes of the annual Sydney Festival and has instigated the creation of a formal occupational health and safety policy. 7 In his affidavit Mr Cahill outlined the structure and activities of the defendant in connection with the staging of the annual Sydney Festival and emphasised that the defendant was a "not for profit company, limited by guarantee" and was recognised as an income tax exempt charity. Although its annual turnover for each festival is of the order $9 million, its expenditure is such that it does not make a profit. Its revenue is derived from a State Government grant, box office receipts and corporate sponsorship. 8 I am satisfied from the evidence given on behalf of the defendant, and from concessions made by the prosecutor during the course of the hearing that the defendant has expressed contrition for what has occurred, has cooperated fully with the WorkCover Authority of New South Wales in connection with its investigation of the incident and has taken active and constructive steps to advance compliance with its responsibilities under the Act. Furthermore, the defendant has no prior convictions for any offence under the Act and, I assume, associated legislation. 9 Despite these subjective features which mitigate against the imposition of a substantial penalty, the offence to which the defendant has pleaded guilty is a serious one. Mr Chin of counsel who appeared for the prosecutor submitted that the matter should be approached by way of analogy by reference to labour hire circumstances where an employer places an employee with a host client for the purpose of undertaking work. It is clearly established by Full Bench decisions such as Drake Personnel v WorkCover Authority of New South Wales (1999) 90 IR 432 that employers whose employees are required to perform work in third party premises and under the supervision or control of a third party client or associate have an obligation to take positive steps to ensure that the provisions of the Act are complied with. That is, there is a positive obligation on labour hire companies to take such steps as are necessary to ensure that the work environment in which their employees are required to carry out work is safe, and that their employees are not required to carry out work in circumstances which are unsafe or otherwise create a risk to their health, safety or welfare. Labour hire companies, and the defendant in these proceedings are, in a pragmatic sense, compelled to exercise the degree or foresight and vigilance necessary to ensure that these obligations are complied with. This foresight and vigilance must be exercised in circumstances where such an employer will rarely have a responsible representative engaged full-time at the third party premises or otherwise involved full-time in the operations of the third party. I agree that this is an approach which, by analogy, can be applied to these proceedings. 10 It is also necessary that I refer to the outcome of the proceedings against Empire Talkies Pty Ltd which arose out of the same incident. The subjective circumstances are similar in that in those proceedings the defendant also pleaded guilty at the earliest opportunity, had no prior convictions and, arguably, its culpability in terms of this particular incident was greater than that of the defendant in these proceedings. I imposed a fine of $45,500 on Empire Talkies Pty Ltd after allowing a discount of 30 percent by reference to subjective factors. Mr Chin submitted and I agree, that the fine imposed in connection with these proceedings should bear some consistency having regard to the relative culpability of both defendants, although he submitted that whilst the culpability of this defendant might reasonably be assessed as less than that of Empire Talkies Pty Ltd, the difference was "marginal". 11 I agree with the submission of Mr Chin that in view of the conduct of this defendant since the incident it is not necessary to have regard in a particular way to any specific deterrent effect in assessment of penalty, although the general deterrent effect ought to be taken into account. 12 The maximum penalty is $550,000. Having regard to all of the subjective circumstances to which I have referred (other than the plea of guilty) I am of the opinion that an appropriate penalty for this offence is $50,000 to which a discount of 30 percent should be applied by reference to the plea of guilty entered at the first available opportunity and for the general utilitarian benefit of contrition and remorse. Accordingly this leaves a net penalty of $35,000. 13 The prosecutor sought an order for a moiety and costs which orders were not opposed. ORDERS 14 I make the following orders: 1. The defendant is found guilty of the charge and is convicted accordingly. 2. The defendant is to pay a penalty of $35,000 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant is to pay the costs of the prosecutor as agreed or in default of agreement as assessed by 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.