Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Green v Boxer Engineering / Inspector Green v Keith Bloodsworth [2003] NSWIRComm 271 PROSECUTOR Inspector Ritchie Green PARTIES : FIRST DEFENDANT Boxer Engineering Pty Ltd SECOND DEFENDANT Keith Frederick Bloodsworth FILE NUMBER: IRC 1001 & 1008 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health & Safety - Prosecutions under section 16(1) and 50(1) of the Occupational Health and Safety Act - Worker sustained serious leg injuries when work platform he was riding on became detached from its tracks whilst being lifted by crane - Plea of guilty - Corporate defendant alter ego of personal defendant - Whether s10 of Crimes (Sentencing Procedure) Act applicable - Consistency in sentencing - Offences proven - Penalties imposed. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Victims Compensation Act 1996 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Fisher v Samaras Industries Pty Ltd. (1996) 82 IR 384 Independent Cargo & Wool Services Pty Ltd v Inspector Paul Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994) at pg 4 Inspector Green v Heinrich Constructions Pty Limited [2003] NSWIRComm 199 Inspector Green v Barclay Mowlem Construction [2003] NSWIRComm 197 Inspector Roy Thomas Milligan v Roads & Traffic Authority (Industrial Court of New South Wales, Unreported, 29 August 1996 per Fisher J) Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector James Swee Ch'ng) (1999) 90 IR 464 CASES CITED : R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Sharma (2002) 54 NSWLR 300 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (2002) 115 IR 78 WorkCover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Limited (2001) 110 IR 469 WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd (2000) 99 IR 163 WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty. Ltd. (No 2) (2001) 109 IR 347 WorkCover Authority of NSW v Waugh & Thora Sawmilling Pty Limited (1995) 59 IR 89 WorkCover v State Rail Authority of NSW (2002) 115 IR 130 HEARING DATES: 07/29/2003 DATE OF JUDGMENT: 09/16/2003 PROSECUTOR Mr M Cahill of counsel Solicitor: Mr N A Correy Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT Mr R Crow of counsel Solicitor: Mr S Nicholson McPhee Kelshaw Conveyancers JUDGMENT: 1 - - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Tuesday 16 September 2003 Matter No IRC 1001 of 2002 INSPECTOR GREEN v BOXER ENGINEERING PTY LTD Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 Matter No IRC 1008 of 2002 INSPECTOR GREEN v KEITH FREDERICK BLOODSWORTH Prosecution under section 50(1) & 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 271 1 Boxer Engineering Pty Ltd ("the first defendant") designed, developed and supplied the Climbtrac system which is a formwork system utilised for the construction of vertical formwork surfaces such as lift shafts, stair walls, columns and external perimeter walls on multi-storey buildings. Keith Frederick Bloodsworth ("the second defendant") is the managing director of the first defendant. The Climbtrac system was supplied to Heinrich Constructions Pty Limited ("Heinrich") who used it on a construction site at Rockdale, a suburb of Sydney in New South Wales. The principal contractor on the site and in respect of whom Heinrich had contracted to provide formwork, was Barclay Mowlem Construction Limited ("BMCL"). 2 On 4 September 2000 it was intended that the Climbtrac system be lifted from level 8 to level 9 by crane to form the formwork for the pouring of the walls of the lift shaft core on level 9. Richard Harnett, a formwork carpenter employed by Heinrich, stayed on the platform of the system to free the system if it became jammed during the crane lift. As it was being lifted by the crane, part of the system, including the platform upon which Mr Harnett was standing, became detached from the tracks. Mr Harnett jumped clear by grabbing steel reinforcing bars embedded in the top of the wall of the lift shaft core. As he was hanging from the bars, the platform of the Climbtrac system swung inwards and crushed Mr Harnett's legs against the lift shaft core wall. Mr Harnett suffered broken tibias in both legs. 3 The first defendant was prosecuted under s 16(1) of the Occupational Health and Safety Act 1983. The section 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 second defendant was prosecuted under s 16(1) and s 50(1) of the Act. Section 50(1) provides: 50. Offences by corporations (1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 5 In an amended application for order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 against the first defendant, Inspector Ritchie Green of the WorkCover Authority of New South Wales alleged that the first defendant: Did fail to ensure the health, safety and welfare at work of persons not in its employ, and in particular Richard Harnett, arising from the conduct of its undertaking namely, the inspection, certification, servicing and maintenance of the proprietary Climbtrac Jumpform system ("the Climbtrac System"), in that the worker sustained injury on 4 September 2000 whilst he was working atop the Climbtrac systems, when both his legs were broken when they were crushed between platform 6 of the Climbtrac System and the lift core shaft of tower B, contrary to Section 16(1) of the Occupational Health and Safety Act 1983. 6 Similarly, against the second defendant it was alleged that the second defendant: Did fail to ensure the health, safety and welfare at work of persons not in its employ, and in particular Richard Harnett, arising from the conduct of its undertaking namely, the inspection, certification, servicing and maintenance of the proprietary Climbtrac Jumpform system ("the Climbtrac System"), in that the worker sustained injury on 4 September 2000 whilst he was working atop the Climbtrac system, when both his legs were broken when they were crushed between platform 6 of the Climbtrac System and the lift core shaft of tower B, contrary to Section 16(1) of the Occupational Health and Safety Act 1983. 7 Both defendants pleaded guilty to the charges against them. It may be noted that Heinrich and BCML were also charged in relation to the same incident and those charges have already been dealt with, although the judgment in relation to BCML is under appeal. See Inspector Green v Heinrich Constructions Pty Limited [2003] NSWIRComm 199 and Inspector Green v Barclay Mowlem Construction [2003] NSWIRComm 197. 8 In relation to both the first and second defendants the prosecutor tendered statements of agreed facts and contentions which were essentially in the same terms. Additionally, it was common ground that the management of Heinrich and BCML denied knowledge of the practice of riding on the Climbtrac platform whilst it was being raised and further that no person in a position of responsibility with those companies took steps to notify the defendants of the existence of such practice. The prosecution also acknowledged that the written material provided by Boxer to customers purchasing the Climbtrac system included specific directions that persons were not to be on the platform of the system when it was jumped. 9 Also tendered were the records of interview of seven persons undertaken by the prosecutor in his investigation of the incident on 4 September 2000. The records of interview were tendered in relation to a contest between the parties as to whether the platforms of the Climbtrac system had been known to jam from time to time as they were lifted and whether there was a practice of employees of Heinrich of riding on the platform as it was lifted by the crane so as to free any jams. Also tendered by the prosecutor was a factual inspection report into the incident completed by Inspector Green on 4 September 2000, a bundle of 23 colour photographs taken by Inspector Green on 4 September 2000 at the incident site showing various aspect of the Climbtrac platform and records of the defendants' prior convictions of which there were none. For the second defendant, his affidavit was tendered and read. 10 The statement of agreed facts in relation to the first defendant relevantly stated: 7.Heinrich had sub-contracted with the Principal at the construction site, Barclay Mowlem Construction Limited ("BMCL") for the provision of formwork at the site, which specifically included the use of the proprietary Climbtrac System. 8. The Climbtrac System was used at Tower C at the construction site prior to construction of Tower B. 9. On or about 23 February 2000, Keith Frederick Bloodsworth inspected the Climbtrac system at the site for certification prior to use on Tower C. 10. By letter dated 23 February 2000 Boxer certified the Climbtrac System as being correctly set up to commence work on Tower C at the site. 11. By letter of 13 March 2000, Boxer notified Heinrich of specific recommended structural and safety modifications required to the platform of the Climbtrac System including the addition of two additional crane lifting points and secondary arrestor plates. No further action was taken in respect of this letter by either Heinrich or Boxer until subsequent to 4 September 2000. 12. A letter dated 17 March 2000 directed to Heinrich from consulting structural engineers, Kneebone Beretta & Hall certified the Climbtrac system frame assembly as structurally adequate to support imposed loads. 13. From approximately June/July 2000 to 4 September 2000 the construction of Tower B at the site continued with the Climbtrac System being operated in the manner described in paragraph 5 above. No officer or employee of the defendant was present on the site during this period. 14. On 4 September 2000 it was intended that the Climbtrac System be lifted from level 8 to level 9 to form the formwork for the pouring of the walls of the lift shaft core on the said level. 15. The prosecutor contends, and the defendant does not admit that, On previous occasions at the site when the platforms of the Climbtrac System had been lifted they had been known to jam from time to time. Employees of Heinrich, and in particular Richard Harnett, were in the practice of riding the platform as it was lifted by the crane so as to free any such jams. The prosecutor will call evidence to establish this contention. 16. On 4 September 2000 time had been designated on the hammer head crane located at the site by the Principal, BMCL for the lifting of the Climbtrac System. 17. An employee of BMCL, Ian Hartmann, was operating the said crane. 18. Another employee of BMCL, Danny Wasson, a dogman, was designated by BMCL to direct the lift. 19. James Magee, the BMCL Safety Officer, identified Ian Davies an employee of Lindales Pty Limited as a certified dogmen and asked him to assist in directing the lift with Danny Wasson, as the regular second BMCL dogman was on leave. 20. The two dogmen were further directed in the tasks they were to complete that morning by another employee of BMCL, Laurie Tucker. 21. At approximately 10.00am preparation for lifting of the Climbtrac System commenced, with the shutters being moved away from the lift shaft core, and the Climbtrac System tracks being extended. 22. The first stage of the lifting process commenced with the formwork inside the lift shaft core being lifted by the crane. 23. Aaron Moxham, an employee of Heinrich acted as a spotter to ensure that persons were not below the external platforms whilst they were being lifted. 24. Danny Wasson then directed the lifting of the eastern external platform. During the lifting of this platform Danny Wasson's two-way radio started to beep indicating that the battery was going flat. The lift was completed with the eastern external platform being placed safely. 25. There had been a history of the batteries of two way radios at the site going flat after a short period of operation, and there were few back-up batteries. The two way radios and backup batteries were provided at the site by BMCL. 26. The hook of the crane was then removed and attached to the western external platform number 6. 27. Prior to lifting the western external platform number 6 the battery of the two-way radio of Danny Wasson went flat. 28. Ian Davies was requested by Danny Wasson to call the jump of the western external platform. 29. The only lift of this type that Ian Davies assisted in directing prior to this was the lift of the eastern external platform earlier that morning. 30. Richard Harnett was located on the western external platform number 6, as he had been on the eastern external platform during its lift. 31. Richard Harnett continued to ride the platform whilst it was lifted to ensure the free and unimpeded travel of the external climb frame and flipper components of the platform. 32. When the platform was in the intended position, Ian Davies instructed the crane operator, Ian Hartmann, to stop. The crane continued to lift the platform. 33. Danny Wasson and Ian Davies both then asked for the crane to be stopped again. 34. Danny Wasson shouted this command as the battery of his two way radio was flat. 35. The crane operator only heard the final direction to stop and immediately took his hand off the hoisting lever. This stopped the crane continuing to lift. The external platform momentarily stopped before the external platform number 6 became detached from the tracks. 36. The platform then commenced to pivot about the 2 lifting points located at the front of the platform as it was no longer attached to the track affixed to the wall of the lift shaft core. 37. Richard Harnett jumped clear to the top of the lift shaft core and caught hold of embedded reo bars in the top of the wall. 38. Whilst Richard Harnett was hanging from the reo bars, as a consequence of the significant rotation of the climb frame, the lateral bracing at the bottom of platform crushed his legs between itself and the wall. 39. Danny Wasson who was standing on top of the internal lift box without fall protection reached out and grabbed Richard Harnett and pulled him up on top of the internal platform. 40. Mr Harnett suffered broken tibias in both legs as a result of the said incident and was unable to attend to his employment for a period in excess of seven days immediately following the incident. 11 Mr Bloodsworth provided a comprehensive affidavit that addressed the following matters: · His background, work experience and qualifications and the business of the first defendant. It is noted that in 2000 the first defendant employed four persons, all family members. In 2003 the first defendant employs an additional three supervisors whose job it is to set up, commission and operate systems designed and supplied by the first defendant. · The origins and operation of the Climbtrac system, how the system is sold rather than hired and where the system has been used. In this respect it is noted that the system has been in use since 1997 and is used extensively in the construction of multi storey buildings throughout Australia. · The modification of the Climbtrac system following an incident in Western Australia in March 2000. The incident occurred during the lifting of the system between floors. During the lift, communication was lost between the dogman and crane operator because the radio failed. As a consequence, the crane operator pulled the system out of the tracks and the platform tilted. The modifications made by Boxer were to include secondary arrestor plates which would give more time before the platform came free of the tracks. Boxer also modified the system to require that the platform be lifted by four chains to ensure that it would not rotate. · On 13 March 2000 the second defendant wrote to companies that owned the Climbtrac system, including Heinrich, advising them of the modifications that should be made to the system. 12 Mr Bloodsworth also gave details of the first defendant's involvement with the Rockdale site. In his affidavit it was said: Boxer was retained by Heinrich to prepare the drawings for the affixing of the Climbtrac system to Tower C at 3 Keates Avenue, Rockdale ("the Rockdale site"). I attended at the Rockdale site and inspected the Climbtrac system prior to its been erected on Tower C. I again attended on 22 February 2000 and inspected the Climbtrac system to ensure that it had been erected on Tower C in accordance with the drawings that Boxer had prepared. On 23 February 2000 I sent a certificate to Heinrich, a copy of which annexed and marked with the letter " H ". In that certificate, I certified that the Climbtrac system had been erected in accordance with the specifications and that the shutters were adequate to support the loads that would be imposed on them during the concrete pour. This certificate only related to Tower C because that was the only tower on the site. On 23 February 2000 at the same time as I sent the certificate to Heinrich I also sent a site instruction indicating that a couple of things on the Climbtrac system needed to be fixed up. A copy of the site instruction is annexed and marked with the letter " I ". The remedial work described at paragraph 1 was the installation of rubber flaps over the hole in the platform where the lifting lugs were. This would prevent anything getting caught in the holes. The remedial work described in paragraph 2, required that a rubber flap be installed in the internal part of the Climbtrac system ie that part which is inside the lift core, so that nothing could fall down the lift core past the internal platform. I spoke to Gwynn Owen, the Foreman for Heinrich, about a week before sending out the letter of 13 March 2000. I said to him "There has been an incident in WA and we are now going to put four chains on the system." Gwynn said, "We're okay here, there isn't problem." I said, "Well you should put the four chains on anyway." A couple of days after 13 March 2000 I had a call from Hoss Heinrich (the director of Heinrich Constructions Pty Ltd). It was not unusual to get a call from Hoss, I would get them about every two or three days. We were doing several other jobs with him at the time. He had about three Climbtrac systems operated by Heinrich Constructions at the time. He said to me, "Got your letter. What is it all about and what do we have to do?" I said to him, "You have got to modify the platform frames." I then talked to him about what had happened in Western Australia and why were we doing it. To the best of my recollection, he did not respond to my comments but moved on to discuss some other matter. I had a further conversation with Gwynn Owen on site at about the time Heinrich Constructions commenced the construction of Tower B. It would have been some time after the letter of the 13 March 2000. He said to me, "We want to put some temporary concrete supports on the lower level [referring to Tower B]. We would like you to come and look at that." He then got out some drawings and we discussed the issue. I told him, "It looks okay to me." I was subsequently on site in the period between 13 March 2000 and the date of the accident probably at least twice. These were in relation to the screens that Boxer had designed and had supplied and sold to Heinrich and to view the results of the tests we did on the proposed deck forming system. The deck forming system was a new idea that Boxer was developing to speed up the deck forming system. I was also there advising in relation to a temporary structure over a temporary unit that was constructed on another part of the site near Tower A. While I cannot recall looking at the Climbtrac system, if I had, it would have made no difference because I would have had to have been there when it was being moved to be able to determine whether it was being lifted with two chains or four. It could be lifted with four chains without installation of additional lugs for lifting. This is because when the system is first mounted on a building it is in fact lifted with four chains. When the system was modified it would be moved using the chains attached to the additional lugs. 13 Mr Bloodsworth's affidavit went on to describe the steps taken by the defendants following the accident, including modifications of the Climbtrac system. The affidavit also addressed the issue of jamming. Mr Bloodsworth said he had never observed an employee of any firm riding the platform when the Climbtrac system was being lifted between floors. Further, he said the alleged problem of jamming because of debris was not a problem that Boxer had previously been aware of and as a consequence enquiries were conducted as to whether it was a problem on any other site. The response to those enquiries was that this was not a problem being experienced elsewhere. Mr Bloodsworth deposed that: A review of the system indicated that jamming because of debris is very unlikely to be a problem as the Climbtrac system has a debris plough on the top of the system to move away any loose concrete when it is being moved. This prevents any debris falling into the tracks which could cause it to jam. If loose concrete were to break off the wall during the climb, it would fall onto the platform or if it did not come loose, the rubber flap attached to the platform would move over the concrete. When the platform moves into the new track this track is clear of any debris because that track has been off the wall. The system can however jam where the tracks have not been affixed in such a way that they are parallel to each other (there is a 10-15mm margin so that the tracks do not have to be perfectly parallel). If the tracks are not parallel, then the system will stop. The procedure is then to stop the system and reset the tracks carefully ensuring that they are parallel. Heinrich never requested that Boxer certify the Climbtrac system in relation to Tower B. Had it done so, Boxer would have required that the additional lifting lugs be installed prior to the system being used on Tower B, and would have required the secondary arrester plates be incorporated into the design. Tower B was slightly different to Tower C in that conventional formwork was required to be used for the initial floors before the Climbtrac system could be installed. 14 Mr Bloodsworth indicated in his affidavit there had been cooperation with the WorkCover Authority in its investigation of the accident. 15 Exhibited to Mr Bloodsworth's affidavit was a compact disc (CD) containing a five minute visual explanation of the Climbtrac system, which was viewed by the Court, as well as other documentation relating to the system including work method statements and a safety checklist. 16 Mr Bloodsworth also gave oral evidence. Having regard to both his affidavit and oral evidence there appears that there may be three ways in which the Climbtrac system might jam when being raised. The first is where the tracks have not been affixed in such a way that they are parallel to each other. The second is where debris might fall onto the racks causing it to jam but Mr Bloodsworth said this was an unlikely occurrence. The third is in lifting the system it is out of balance because, for example, the lifting point is not centred causing one side of the system to be lifted at a different rate than the other side thus causing jamming to occur. Mr Bloodsworth was aware of these problems. It is evident from the records of interview tendered in the proceedings that the Climbtrac system on the Rockdale site was prone to jamming and that the practice was for someone to ride on the platform to release it whenever it jammed during the course of being jumped. 17 It was also apparent from Mr Bloodsworth's affidavit and oral evidence that after the incident in Western Australia, which occurred in early March 2000 and where the system became disengaged from its tracks, Mr Bloodsworth became aware of a flaw in the system to the extent that the tolerance for over travel when the system was being raised, thus risking the possibility of it being lifted out of its tracks, was too short. Further that if the system did became disengaged from its tracks there was a risk of it swivelling or pivoting on its lifting points which is what occurred on 4 September 2000. Modifications were then designed for the system to address these problems including the introduction of two additional lifting points to prevent the system pivoting or swivelling. These modifications were advised to customers in the letter of 13 March 2000 and customers, including Heinrich, were advised to make the modifications. 18 It was part of Boxer's arrangements with its customers, including Heinrich, that no modifications to the Climbtrac system were to be carried out without Boxer's approval. Further, that any modifications had to be carried out by persons approved by Boxer and following such modifications Boxer was to be given the opportunity of inspecting the modifications to ensure compliance with Boxer standards. Notwithstanding these requirements and Mr Bloodsworth's awareness of the Western Australian incident, neither Boxer nor Mr Bloodsworth took any action to follow up with Heinrich the undertaking of the modifications advised in the letter of 13 March 2000 prior to the accident on 4 September 2000. Submissions of the parties 19 Mr M Cahill of counsel appeared for the prosecutor and provided written submissions. After addressing in some detail the relevant factual matters, Mr Cahill referred to the applicable sentencing principles. In relation to the objective seriousness of the offences Mr Cahill identified the maximum penalty in respect of Boxer as $550,000 and in respect of Mr Bloodsworth, $55,000. 20 Mr Cahill submitted the available evidence indicated that the defendant was aware of the need to modify the Climbtrac system in use at the Rockdale site so as to reduce or eliminate the risk of the work platforms disengaging from their climbing tracks due to 'over-travel' when they were being jumped and, also, to reduce the risk of the work platforms rotating should they disengage from their tracks whilst being jumped. However, apart from notifying Heinrich, by letter dated 13 March 2000, neither Boxer nor Mr Bloodsworth took any further steps to ensure that the necessary modifications were undertaken before 4 September 2000. 21 It was submitted that the defendants' failure to take steps to ensure the modifications were carried out tended to aggravate the offence. See: Inspector Roy Thomas Milligan v Roads & Traffic Authority (Industrial Court of New South Wales, Unreported, 29 August 1996 per Fisher J); Independent Cargo & Wool Services Pty Ltd v Inspector Paul Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994) at pg 4; WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163; and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698-699. 22 It was submitted for the prosecution that both general and specific deterrence were matters that should be taken into account in determining the appropriate penalty to be imposed in the context of the present case. In this respect reference was made to Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29. Mr Cahill contended the construction industry was notoriously dangerous and the dangers associated with high-rise construction were manifest. In the circumstances, the penalty to be imposed should reflect the need to direct not only the attention of the defendants to the need for a vigilant, pro-active approach to occupational health and safety, but also to highlight that message to others operating in the industry. 23 It was submitted that both defendants were entitled to the benefit of the fact that they had entered pleas of guilty. Further, having regard to the fact that the prosecutor had amended the charges brought against each of the defendants, the defendants should be treated as having entered their pleas of guilty at an early stage and each of the defendants was entitled to have the full benefit of an early plea reflected in the penalty to be imposed. Mr Cahill also conceded that the defendants were entitled to a discount with respect to their cooperation with the WorkCover Authority in the investigation of the incident on 4 September 2000. 24 Mr Cahill addressed the issue of parity. He submitted that: In the context of the present case, the prosecutor recognises that the defendants were, unlike their co-offenders, not in direct day to day contact with the site. Nonetheless, the defendants' knowledge and role in relation the subject incident, as set out above, do not necessarily indicate either a lower level of culpability, either directly or in comparison to the co-offenders. The defendants' were in possession of specific knowledge of defects in the units and of the risks that flowed from those defects. The defendants, armed with that knowledge, should have taken steps to ensure that the defects were rectified well prior to the subject incident. 25 The prosecutor submitted the Court should impose a significant monetary penalty upon the defendants: WorkCover Authority of NSW v Waugh & Thora Sawmilling Pty Limited (1995) 59 IR 89; Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector James Swee Ch'ng) (1999) 90 IR 464. 26 Mr Cahill accepted that any fine imposed on Boxer would have to be met to a large extent by Mr Bloodsworth and that the Court was entitled to take that into account in arriving at an appropriate sentence. 27 Mr R F Crow of counsel appeared for the defendants. He referred to WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty. Ltd. (No 2) (2001) 109 IR 347 at [19] where Hungerford J stated: (T)he proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce. 28 Mr Crow submitted that the defendants acknowledged that every breach of the Occupational Health and Safety Act was serious. Nevertheless, it was submitted that the offences in these proceedings were not at the most serious end of the scale. The company's involvement in the chain of events that led to the accident to Mr Harnett was relatively minor, for the following reasons: § Boxer had no right to control its clients' use of Climbtrac. Clients were not obliged to obtain the company's approval of the client's erection of Climbtrac. However, where a client engaged Boxer to prepare construction drawings for a job involving Climbtrac, it was Boxer's practice to certify that Climbtrac has been erected on site in accordance with those drawings. Other clients may also request the company to certify their erection of Climbtrac. § Boxer was retained by Heinrich to prepare construction drawings for the use of Climbtrac on the Rockdale job. Mr Bloodsworth inspected the Climbtrac equipment before and after its erection by Heinrich on Tower C of the Rockdale development. Boxer certified that erection on 23 February 2000. At that time Tower C was the only tower on the site. § Early in March 2000, an incident occurred in Western Australia that caused Boxer to design a modification to Climbtrac. This incident involved a loss of communication between the dogman and crane driver during a lift of Climbtrac, leading to Climbtrac being pulled clear of its tracks and tilting. This is what happened 6 months later at Rockdale. § Boxer sent a letter to Heinrich and the other owners of Climbtrac on 13 March 2000 advising them of modifications they should make to the equipment and its method of operation. Attached to the letters were detailed engineering drawings. A couple of days later, Mr Bloodsworth received a telephone call from the managing director of Heinrich, Mr Hoss Heinrich, enquiring about the recommended modifications. Mr Bloodsworth explained them to Mr Heinrich. § The modifications comprised the fitting of secondary arrestor plates and the use of four chains for lifting rather than two. The secondary arrestor plates hold Climbtrac onto its tracks for longer and were designed to increase the likelihood that a crane driver would become aware of a loss of communication with his dogman before Climbtrac could become detached. The use of four chains was designed to prevent Climbtrac from tilting if it did become detached from its tracks. § Heinrich failed to carry out the modifications communicated to it by Boxer. The business of Boxer did not cause its employees to attend sites on which Climbtrac was being used with any frequency or regularity. Mr Bloodsworth attended the Rockdale site twice between 13 March and the date of Mr Harnett's accident, but not in connection with Climbtrac. Boxer did not inspect or certify Heinrich's erection of Climbtrac on Tower B of the Rockdale job. It did not know, at the time of Mr Harnett's accident, that the modifications had not been made. § Printed material supplied by Boxer with Climbtrac instructed against riding on Climbtrac during lifting; Heinrich's foreman on the Rockdale site, Mr Owen, had told employees not to ride on "Climbtrac" whilst it was being lifted, and knew of no reason for Mr Harnett to be riding it on the day of his accident. § On the day of the accident to Mr Harnett, communication between the crane driver and dogman failed due to deficiencies in the radio equipment supplied to them by Barclay Mowlem. Furthermore, Heinrich and Barclay Mowlem failed to prevent Mr Harnett from riding on Climbtrac whilst it was being lifted. § The offence as particularised in the amended application for order arose out of the failure of the defendants to ensure that its clients had carried out modifications to equipment supplied by Boxer, which the defendants had themselves identified as necessary in the interests of safety. § However, Boxer's failure alone did not cause the accident. In particular, Mr Harnett should not have been allowed to ride on Climbtrac, and communication between the dogman and crane driver should have been ensured. 29 It was submitted that an early plea of guilty entitles a defendant to a discount up to 30 per cent: WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 at par [90], applying the principles in the guidelines case of R v Thomson: R v Houlton (2000) 49 NSWLR 383, at par [160]. Consideration of the utilitarian value of a plea is a requirement of s 22 of the Crimes (Sentencing Procedure) Act 1999: R v Sharma (2002) 54 NSWLR 300 and Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (2002) 115 IR 78 at 89. 30 Mr Crow submitted the defendant has demonstrated its remorse by its co-operation with the investigation of the offence by WorkCover; Mr Bloodsworth expressed his and Boxer's regret. 31 As to deterrence Mr Crow referred to Capral and submitted the primary factor, in assessing the weight to be given to specific deterrence, is the propensity to re-offend: WorkCover v State Rail Authority of NSW (2002) 115 IR 130 at par [57]. The need for specific deterrence may not be as significant, or present, where there is little likelihood of re-offending, because the defendant does not need to be compelled to pay attention to occupational health and safety issues. In this respect Mr Crow submitted Boxer had demonstrated its attention to health and safety issues in the following ways: (1) It was pro-active in advising owners of Climbtrac in March 2000 of modifications to be made in the interests of safety following the incident in Western Australia. (2) Its original method statement contained instructions for the safety of employees in the assembly, lifting and disassembly of Climbtrac, eg. the use of safety harnesses and exiting the platform before lifting. (3) Its revised method statement, published after September 2000, contains more instructions for the safety of employees in the assembly, lifting and disassembly of Climbtrac, eg. the use of safety harnesses and exiting the platform before. (4) It provides a safety check manual to customers. 32 The business and workforce of the company is small. Its propensity to re-offend cannot be put at zero, but it is very slight. Special deterrence should not be a significant factor in the fixing of a penalty in this case. 33 As to general deterrence Mr Crow referred to the fundamental duty of the court is to ensure a level of penalty for a breach that will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace; per Hungerford J in Fisher v Samaras Industries Pty. Ltd. (1996) 82 IR 384 at 388, followed in Capral. 34 Mr Crow referred to the defendants' cooperation with the WorkCover Authority. 35 In relation to the prosecution of Mr Bloodsworth under s 50 of the Act Mr Crow submitted: 1. The defendant company is the alter ego of Mr Bloodsworth. He is its sole shareholder and director. No distinction can be drawn between them in their contribution to the offence under s 16. The culpability of one is the culpability of the other. 2. Whilst s 50 provides for separate convictions and penalties of a company and its director in respect of a single breach of the Act, the benefit and, it can be inferred, the purpose of s 50 is to ensure that individuals engaged in the management of a company also have their attention drawn to the aims of the Act. The necessity for, and efficacy of, s 50 will generally increase with the size of the company and the distinction between ownership and management. 3. In the present case, ownership and management are one and the same. No separate deterrent effect will flow from penalties to each of the two defendants. Furthermore, there is a risk that the cumulative effect of two penalties would be disproportionate to the overall level of culpability. 4. Having regard to these matters and to matters personal to Mr Bloodsworth such as his age and previous record, it is appropriate to consider dealing with him under s 10 of the Crimes (Sentencing Procedure) Act 1999: See WorkCover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Limited (2001) 110 IR 469 at pars [19-21]. 36 Mr Cahill for the prosecutor, as I understood his position, did not consider the application of s 10 of the Crimes (Sentencing Procedure) Act in respect of Mr Bloodsworth was appropriate. Consideration 37 In assessing the defendants' culpability in these matters I accept Mr Crow's submission that the second defendant is no "backyard inventor" nor is his company, Boxer Engineering, a fly-by-night operation. The Climbtrac system is obviously a well-regarded engineering product used nationally and internationally in the construction industry. The system has been successful and the defendants have taken a responsible approach to the sale, use and certification of the product as well as to its modification by individual purchasers. 38 The charges in relation to both defendants alleged that they contravened s 16(1) of the Act in that they carried out an inspection of the Climbtrac system on 22 February 2000; on 23 February 2000 they issued a certificate certifying the system as fit for use; and, that they issued the certificate having failed to adequately inspect the system to ascertain its safety for use by persons not in their employ and failed to carry out a risk assessment of the stability of the platforms of the system which had only two lifting points and that had no secondary arrestor plates in place during the lifting process. 39 As to the alleged failures, the second defendant did attend the Rockdale site and inspected the system prior to and following its erection on Tower C. Subsequently, the second defendant certified that the system had been erected according to specification. The second defendant did not, however, inspect or certify the system in relation to Tower B where the accident occurred. It was Mr Bloodsworth's evidence that he had not been requested by Heinrich to certify the system in relation to Tower B. However, he was aware that Tower B was to be erected and, prior to its erection, he was aware of an incident in Western Australia early in March 2000, similar to what later occurred on 4 September 2000, where the Climbtrac system had been pulled of its tracks. 40 Mr Bloodsworth advised Heinrich by letter on 13 March 2000 of the modifications to the system necessary to overcome the problem experienced in Western Australia, although the Western Australian incident was not mentioned in the letter. Mr Bloodsworth did say in his evidence, however, that he mentioned the Western Australian incident in a telephone conversation with Heinrich's managing director "A couple of days after 13 March 2000". 41 In the knowledge that Tower B was to be erected and in the knowledge that modifications were necessary to the system following the Western Australian incident, the defendants failed to take any action to follow up with an inspection and risk assessment in relation to the use of the system on Tower B. This was in circumstances where the first defendant required its customers to use approved contractors to make modifications to the Climbtrac system and to have such modifications approved by the first defendant. No request was made to Boxer by Heinrich for contractors to carry out the modification work and, consequently, no request was made for certification of such work prior to 4 September 2000. 42 This then was the essential failure by the defendants. In the knowledge that modifications were necessary to improve the safe operation of the system the defendants failed to ensure that persons not in their employment were not exposed to risks to their health or safety by failing to take appropriate steps to inspect and carry out a risk assessment of the system in relation to its use on Tower B. 43 In mitigation, it is accepted that the defendants did not completely ignore the need for modifications because they advised their customers accordingly. Heinrich failed to undertake the modifications. Moreover, Boxer had issued instructions with the system that persons were not to ride on the Climbtrac system during lifting and the defendants were not aware that a practice had developed where persons did ride on the platform to overcome any jamming that might occur. The defendants, of course, cannot be held responsible for the failures associated with the lifting operation including the failure of the radios. 44 As to the question of foreseeability, the defendants had, by virtue of the Western Australian experience, foreseen the prospect of the system on Tower B being pulled off its rails and pivoting on its lifting points. Although the defendants were aware that the system would jam on its tracks from time to time they were not aware of the practice of persons riding on the platforms having given instructions that this should not occur. However, the very fact that the defendants issued instructions not to ride on the platform indicates that they were aware persons might do so. It seems to me that it was foreseeable that persons might ride on the system's platform whilst it was being lifted and that in the absence of the modifications later made to the system, it might come off its tracks and give rise to a risk to health and safety. 45 Whilst the modifications necessary to avoid the Climbtrac system being pulled out of its tracks involved engineering work, it was not excessively complex and difficult. 46 In relation to the issue of general deterrence I adopt the same approach as that taken in Inspector Green v Heinrich Constructions Pty Limited [2003] NSWIRComm 199 at par [24]. As to specific deterrence, I accept the defendants' submissions. 47 There are a number of subjective factors to be considered. Firstly, the defendants pleaded guilty at an early opportunity and I propose to allow a discount on the sentences of 25 per cent for the utilitarian value of the guilty plea. Secondly, the defendants have no prior convictions. Thirdly, the defendants cooperated with the WorkCover Authority in the investigation of the accident and have expressed contrition and remorse for the injuries sustained by Mr Harnett. Fourthly, I regard the defendants as good industrial citizens, conscious of their responsibilities regarding occupational health and safety. 48 Mr Crow submitted that in respect of Mr Bloodsworth I should apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act. In that respect, Mr Crow sought to draw a parallel with the circumstances considered by Hungerford J in WorkCover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Limited. I have given careful consideration to this submission because it is quite clear that the corporate defendant here is the alter ego of Mr Bloodsworth. He developed and designed the Climbtrac system and is the sole shareholder in his company. He is also the managing director of Boxer. 49 In R & D Enterprises, Hungerford J reached his conclusion to apply s 10 of the Crimes (Sentencing Procedure) Act "with some hesitation" and considered that "on balance", it would be inexpedient to convict Mr Green, the personal defendant in that case, and to impose a fine on him. In taking this course, Hungerford J accepted that Mr Green's company had only modest financial means and that: 20 Mr Green has had no prior convictions of any nature and during evidence he presented as a sincere, hard-working tradesman who was endeavouring to build and maintain a small business in difficult commercial circumstances. In a sense, his brief departure from the scene of the incident at the time it occurred to attend a pressing problem elsewhere on the site was no excuse for the safety detriment which thereby arose but, I am prepared to accept, it was a casual omission which should not result in a criminal record being created against Mr Green. I think to do so, in the circumstances where the corporate defendant is to be convicted and fined accordingly, would be neither suitable nor judicious. 50 Section 10 of the Crimes (Sentencing Procedure) Act provides that: 10. Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 51 It may be seen that one of the factors the Court is to have regard to is the "trivial nature of the offence". I am unable to regard the offence with which Mr Bloodsworth is charged as trivial. Mr Bloodsworth was fully aware of the Western Australian incident and he was aware of the proposed construction of Tower B and that the Climbtrac system was to be used in that construction. Whilst it was Mr Bloodsworth who authored the letter to Heinrich on 13 March 2000 proposing certain modifications designed to overcome the problems arising from the Western Australian incident, it was also Mr Bloodsworth who would have been in a position to monitor whether the modifications had been carried out given his direct involvement on the site. Not having received any request from Heinrich to approve the modifications Mr Bloodsworth, nevertheless, took no steps to ensure that the Climbtrac system on Tower B had been modified. 52 Notwithstanding that Boxer Engineering is the alter ego of Mr Bloodsworth, both have been charged under s 16(1) of the Act and both have pleaded guilty to the charges. I am satisfied that the pleas were properly entered. I have assessed both the objective and subjective factors relevant to both defendants and I am satisfied that a penalty should be imposed on each of the defendants. 53 There is the outstanding issue of consistency in sentencing. Heinrich was fined $55,250 under s 15(1) of the Act and BMCL was fined $63,750 under s 16(1). When sentencing different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: Capral Aluminium 49 NSWLR at [63]. Neither Heinrich nor BCML can be regarded as co-offenders. 54 I consider an appropriate penalty in the case of the first defendant is $70,000. This will be discounted by 25 per cent for the utilitarian value of the guilty plea and a further 10 per cent for other subjective factors, leaving a fine of $45,500. In the case of the second defendant I consider an appropriate penalty is $15,000. Applying the same discount the fine is $9,750. Orders 55 The Court makes the following orders: Matter No 1001 of 2002 - Boxer Engineering Pty Limited 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 $45,500 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's costs in an amount as agreed, or in default of agreement, leave is granted to either party to approach the Court for final orders as to costs. Matter No 1008 of 2002 - Keith Frederick Bloodsworth 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 $9,750 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's costs in an amount as agreed, or in default of agreement, 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.